Law Commons^™

The Human Rights Obligations Of State-Owned Enterprises: Emerging Conceptual Structures And Principles In National And International Law And Policy, Larry C. Backer

Vanderbilt Journal of Transnational Law

The distinction between the obligations of public and private entities, and their relation to law, is well known in classical political and legal theory. States have a duty that is undertaken through law; enterprises have a responsibility that is embedded in their governance. These fundamental divisions form part of the current international efforts to institutionalize human rights-related norms on and through states and enterprises, and most notably through the U.N. Guiding Principles for Business and Human Rights. The problems of conforming to evolving norms becomes more difficult where states project their authority through commercial enterprises.

Expanding The Boundaries Of Boundary Dispute Settlement: International Law And Critical Geography At The Crossroads, Michal Saliternik

Vanderbilt Journal of Transnational Law

This Article identifies a new trend in the adjudication of international boundary disputes and examines it from a historical and normative perspective. For many years, the resolution of international land boundary disputes was governed exclusively by the principle of the stability and continuity of boundaries. Under this paradigm, the main role of international adjudicators was to determine the exact location of historical boundary lines that had been set forth in colonial-era treaties or decrees. Once these lines were ascertained, they were strictly enforced, and any attempt to challenge them was dismissed.

In recent years, however, international adjudicators have been increasingly …

Humanitarian Intervention At The Margins: An Examination Of Recent Incidents, Peter Tzeng

Vanderbilt Journal of Transnational Law

Scholarship on humanitarian intervention is plentiful, but actual examples of state practice and opinio juris are sparse. Thus, critics conclude, the doctrine of humanitarian intervention has no legal basis in international law. This Article challenges this viewpoint. It does so by departing from the traditional framework of international law and adopting an alternative framework of analysis: the study of incidents. Through an examination of seven incidents over the past decade, this Article reveals that the doctrine of humanitarian intervention, though not yet an established norm of international law, functions to widen traditional exceptions to the prohibition on the use of …

Co-Belligerency, Rebecca Ingber

Faculty Scholarship

Executive branch officials rest the President’s authority in today’s war against ISIS, al Qaeda, and other terrorist groups on an expansive interpretation of a 15-year-old statute, the 2001 “Authorization for Use of Military Force” (AUMF), passed in the wake of the 9/11 attacks. They rely on that statute to justify force against groups neither referenced in – nor even in existence at the time of – the 2001 statute, by invoking a creative theory of international law they call “co-belligerency.” Under this theory, the President can read his AUMF authority flexibly, to justify force against not only those groups covered …

Wrestling Tyrants: Do We Need An International Criminal Justice System?, Christopher L. Blakesley

Scholarly Works

Prof. Christopher L. Blakesley delivered this keynote address at the Crimes Without Borders: In Search of an International Justice System Symposium, held at the McGeorge School of Law in the spring of 2016.

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …

Blood Antiquities: Addressing A Culture Of Impunity In The Antiquities Market, Paul Williams, Christin Coster

Scholarly Articles in Law Reviews & Journals

For decades, parties to conflicts have used the cover of war to destroy and loot cultural property and antiquities for financial gain and symbolic victory. The “blood antiquities” excavated in conflict areas and sold mostly in western markets fuel not only continued conflict, but also (as in cases such as Syria and Iraq) terrorism that can reach around the world. The culture of impunity for both buyers and sellers of antiquities allows the blood-antiquities trade to thrive.

A robust international legal framework does exist to ensure accountability for the destruction of cultural heritage. Because looting is a major cause of …

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

Why The State?, Joseph Raz

Faculty Scholarship

I offer two questions for the price of one: Why do so many jurisprudential theories focus on the state? And what is it about the State that gives it a special place in our social arrangements? I do not mean these to address all aspects of states. They are questions about the law or legal systems of states.

We have to be open to a negative answer to the second question, thus being critical of jurisprudential theories that focus more or less exclusively on the state. That need not deny that states have their own legal systems. It could merely …

Using A Shield As A Sword: Are International Organizations Abusing Their Immunity?, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

The starting point for this paper is that IOs are as subjects of international law. Since IOs do not control territory or a population and so always operate within the jurisdiction of one of their member states, they are vulnerable to interference by their member states. In order to mitigate this risk, IOs have been granted qualified immunity, usually referred to as functional immunity, from the jurisdiction of their member states. For most of the twentieth century, this grant of functional immunity made sense for two reasons.

First, the founding states envisaged that IOs would have limited capacity to act …

Academy On Human Rights And Humanitarian Law Articles And Essays On Extractive Industries And Human Rights: Introduction, Claudia Martin, Diego Rodriguez-Pnzon

Scholarly Articles in Law Reviews & Journals

We are delighted to present this year's publication of the Academy on Human Rights and Humanitarian Law, which includes the three best essays in English and in Spanish recognized in the 2016 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics and areas of the world. We hope these participants are able to use their articles as mechanisms for change.

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

Faculty Scholarship

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …

Are We (Americans) All International Legal Realists Now?, Harlan G. Cohen

Faculty Scholarship

Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …

The Status Of Climate Change Litigation: A Global Review, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions – or inaction …

The Legality Of Extraterritorial Application Of Competition Law And The Need To Adopt A Unified Approach, Thanh Phan

Louisiana Law Review

The article focuses on the international law and the foundation of the extraterritorial application of competition law (EACL) and proposes a unified approach for all countries to use when considering the extraterritorial application of competition law.

A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva

Dalhousie Law Journal

International human rights law recognizes a right to health. A majority of domestic constitutions recognize health-related rights. Many citizens believe that they have a moral right to health care. Some theorists agree. Yet the idea of a right to health care remains controversial. Specifying the nature of such a right invites more controversy. Indeed, most models of the right face persistent problems that threaten to undermine the conceptual coherence of a right to health care. This article accordingly sketches preliminary arguments for a new, goal-oriented model of the right to health care. It explains that the model avoids most of …

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

The Obama War Powers Legacy And The Internal Forces That Entrench Executive Power, Rebecca Ingber

Faculty Scholarship

In exploring the Obama war powers legacy, this essay examines the systemic forces inside the executive branch that influence modern presidential decision-making and, barring a total reimagining of the executive branch, will operate on administrations to come. These mechanisms and norms fall broadly within two categories: (1) features that favor continuity and hinder presidents from effecting change, including both novel assertions of executive power and attempts to dial back that power; and (2) features that incrementally aggrandize such power claims. Together, these two sets of forces operate as a one-way ratchet, slowly expanding and ultimately entrenching executive branch power.

Geographical Indications And Development In The Third World: Towards A Strategic Approach Of Intellectual Property Rights In Jamaica - The Case Of Blue Mountain Coffee, Marsha Simone Cadogan

PhD Dissertations

The dissertation is a critical analysis of, and engagement with agricultural and food based geographical indications, the politics of development and international relations, and the prospects of forming reformist linkages between geographical indications and development in Jamaica and the Caribbeans intellectual property landscape. A net importer of intellectual property, Jamaica has yet to fully claim intellectual property as its own.

The dissertation proposes that geographical indication schemes should be envisaged, and practically function as part of Jamaicas development policy. This approach calls for a reformist approach to intellectual property in Jamaica, which includes an awareness of the pitfalls of being …

Theory And Theoretical Approaches To Wto Law, Chios Carmody

Law Publications

This article examines the role of theory in relation to the law of the World Trade Organization (WTO), and more broadly, international economic law. It posits that an absence of agreement about an underlying theory of WTO law can be traced to lack of clarity about what a ‘theory’ is as well as the fact that the current vogue for interdisciplinary approaches to law means that WTO law, in particular, is analyzed through non-normative frameworks that are removed from the law’s legality. The article goes on to examine three theoretic frameworks – textual, political, and economic – that have been …

Anonymous Armies: Modern “Cyber-Combatants” And Their Prospective Rights Under International Humanitarian Law, Jake B. Sher

Pace International Law Review

Cyber-attacks take many forms, only some of which are applicable to the law of war. This Comment discusses only those attacks sponsored by a government or non-state entity that have the goal of affecting morale or gaining political advantage, or those attacks amounting to tactical strikes on state or civilian infrastructure. In that vein, this Comment proposes the adoption of a new legal framework for determining the threshold that marks a participant in such a cyber-attack as a “cyber-combatant” by adapting the framework set by the Geneva Conventions and existing custom. This definition should encompass cyber-attacks perpetrated by states, unrecognized …

The Torturers: Evaluating The Senate Select Intelligence Committee’S Torture Report And Assessing The Legal Liability Of “Company Y” Under The Alien Tort Statute, David J. Satnarine

Pace International Law Review

This analysis seeks to argue that ‘Company Y’ is responsible for its role in the use of inhumane and tortious interrogation techniques during the CIA’s Interrogation and Detention Program under the Alien Tort Statute. Furthermore, this analysis will seek to reconcile case law in light of the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., et. al., and subsequent court decisions opining on the extraterritorial reach of the Alien Tort Statute. Significantly, this analysis will also answer questions left open in the Kiobel decision by arguing that corporate entities, such as Company Y, may be held liable …

Between Light And Shadow: The International Law Against Genocide In The International Court Of Justice’S Judgement In Croatia V. Serbia (2015), Ines Gillich

Pace International Law Review

This Article identifies and critically analyzes the contributions the International Court of Justice (ICJ) made to the international law against genocide via the judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) of February 3, 2015. This Article elaborates on the concept of genocide—a term that has originally been coined after the Armenian Genocide and the Holocaust—and the protection against this “crime of crimes” under international law. The analysis section of this Article refers to the historical and procedural context of the dispute between Croatia and Serbia in the case, …

Controversy Over Information Privacy Arising From The Taiwan National Health Insurance Database Examining The Taiwan Taipei High Administrative Court Judgement No. 102-Su-36 (Tsai V. Nhia), Chen-Hung Chang

Pace International Law Review

This article examines the limitations of the application of traditional information privacy theory to disputes relating to modern technologies. If information privacy is understood as an individual’s right to full control over his information, activities involving the collection, process and use of personal data cannot be conducted without the data subject’s consent because his privacy rights would be affected as a result of such activities. Instead of the privacy interest approach, this article introduces a privacy harm approach to reconcile the defects of traditional privacy theory. The privacy interest approach helps identify situations in which an individual’s information privacy conflicts …

Good Faith – The Gordian Knot Of International Commerce, Bruno Zeller, Camilla Baasch Andersen

Pace International Law Review

This paper argues that good faith cannot be defined and furthermore that there is no need to define good faith as it takes on meaning when applied to facts. Hence an explanation or application of good faith is defined by its function namely to enforce the expected performance of both parties. It is further argued that the function of good faith will determine which fact pattern has to be found by a court in order to determine the expected performance of the contractual parties. It follows that good faith is the legal concept which allows courts to do justice and …

“I Must Tell The Whole World”: Septimus Smith As Virginia Woolf’S Legal Messenger, Riley H. Floyd

Indiana Law Journal

This Note explores the disjunctive moral gap between a civilian ethic of mutual responsibility and the laws of war that eschew that ethic. To illustrate that gap, this Note conducts a case study of Virginia Woolf’s rendering of shell shock in her 1925 novel Mrs. Dalloway. The war put mass, mechanized killing at center stage, and international law permitted killing in war. But Woolf’s character study of Septimus Smith reveals that whether war-associated killing is “criminal” requires more than legal analysis. An extralegal approach is especially meaningful because it demonstrates the difficulty of processing and rationalizing global conflict that plays …

The Celebrity Behind The Brand International Protection Of The Right Of Publicity, Eliana Torres

Pace Intellectual Property, Sports & Entertainment Law Forum

Part I of the article provides an overview of the right of publicity and its history. It presents the importance of this right, particularly for celebrities, and it focuses on the influence of the entertainment and sports industries in a global economy. Then, it analyzes the major differences in level of protection, scope and length, starting with the United States. Then it uses the standard in the United States and compares it with the protection offered in 22 selected jurisdictions based on a survey report by Kenyon & Kenyon titled Getting the Deal Through. Then, it addresses potential challenges to …

The Luxembourg Effect: Patent Boxes And The Limits Of International Cooperation, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

This article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance.

In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent …

Slides: Policy Framework: Fpwec: First Peoples' Water Engagement Council, Phil Duncan, First Peoples' Water Engagement Council

Indigenous Water Justice Symposium (June 6)

Presenter: Phil Duncan, Gomeroi Nation, New South Wales Aboriginal Land Council

25 slides

An Issue Of Monumental Proportions: The Necessary Changes To Be Made Before International Cultural Heritage Laws Will Protect Immoveable Cultural Property, Matthew Smart

Chicago-Kent Law Review

Cultural heritage has been targeted during military conflicts throughout history. Currently, the conflict in Syria is resulting in the destruction of ancient immoveable cultural heritage property. This destruction is particularly devastating because Syria has served as a melting pot of Eastern and Western cultures throughout history. This note examines the history of international laws aimed at the protection of cultural heritage property. After applying those laws to the current Syrian conflict, this note offers multiple suggestions to improve the protection of immoveable cultural heritage property. The improvements advanced by this note include necessary changes to the current regime of international …