Law Commons^™

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Understanding The Hard/Soft Distinction In International Law, Arnold N. Pronto

Vanderbilt Journal of Transnational Law

A common characterization employed in contemporary international law is that between "hard" and "soft" law. A determination that an instrument falls into either category carries with it a series of implications, including that pertaining to the legal consequence of noncompliance with the rules contained in the text. What is at times overlooked is the relatively common phenomenon of the two types of law co-existing, where hard rules provide the context or the limits (boundaries, ceilings, and floors), and the details are "filled-out" by soft rules. A full appreciation of the resulting legal picture requires not only a familiarity with both …

Functions Of Freedom: Privacy, Autonomy, Dignity, And The Transnational Legal Process, Frederic G. Sourgens

Vanderbilt Journal of Transnational Law

What is the function of freedom for the transnational legal process? This Article answers this question through the lens of the ongoing Ukrainian crisis and the deeply inconsistent international legal arguments presented by each side of the conflict. These inconsistencies suggest that criticism of international law as purely political pretense has merits. The Article shows that transnational legal process theory can account for and incorporate these facial inconsistencies and thus address the criticism leveled at international law. The Article proceeds to develop a theory of freedom as a value that is internal to, and necessary for, transnational legal process. This …

The Faults In "Fair" Trials: An Evaluation Of Regulation 55 At The International Criminal Court, Margaux Dastugue

Vanderbilt Journal of Transnational Law

Despite its reputation as a "provision of an exceptional nature," Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time--either during or after the trial--if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC's seven trials has demonstrated that the ICC cannot effectively safeguard a defendant's fundamental trial rights: the right to be informed of charges, …

International Organizations And Customary International Law, Sir Michael Wood

Vanderbilt Journal of Transnational Law

My subject today is "International Organizations and Customary International Law"--that is, the role of international organizations in relation to the formation and determination of rules of customary international law. Charney devoted a good part of his well-known article on "Universal International Law" to what he termed "contemporary international law-making." By that, he meant chiefly law-making within "international forums"--that is, within organs of international organizations and at international conferences. He starts the discussion from the somewhat heretical position that

"[w]hile customary law is still created in the traditional way, that process has increasingly given way in recent years to a more …

Challenges For "Affected States" In Accepting International Disaster Aid: Lessons From Hurricane Katrina, E. Katchka

Vanderbilt Journal of Transnational Law

The International Law Commission (ILC) draft articles on the protection of persons in the event of disasters purport to "facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with respect to their full rights" by setting forth complementary principles governing both individual state responsibilities and international cooperation in disaster response. The principles presented in the draft articles reflect an application of established international law principles as well as current, practical challenges to coordinating international disaster cooperation. This article applies specific ILC draft articles targeting the role of the state impacted by a …

Attribution Of Conduct And Liability Issues Arising From International Disaster Relief Missions: Theoretical And Pragmatic Approaches To Guaranteeing Accountability, Giulio Bartolini

Vanderbilt Journal of Transnational Law

This Article analyzes legal issues related to harmful activities of international disaster relief personnel, focusing on two distinct issues. On the one hand, the analysis centers on internationally wrongful acts carried out by relief personnel and uncertainties related to the attribution of conduct, due to the array of actors involved in such missions. Such an examination will be carried out through the lens of draft articles adopted by the International Law Commission on the responsibility of states and international organizations where some non-exhaustive references are made to such scenarios. On the other hand, the Article focuses on liability issues that …

Illegally Evading Attribution? Russia's Use Of Unmarked Troops In Crimea And International Humanitarian Law, Ines Gillich

Vanderbilt Journal of Transnational Law

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)?

This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was …

The Rhetorical Presidency Meets The Drone Presidency, David Pozen

Faculty Scholarship

This brief essay reflects on Kenneth Anderson and Benjamin Wittes's book "Speaking the Law: The Obama Administration's Addresses on National Security Law." It suggests that "Speaking the Law" overestimates the clarifying and constraining force of the executive branch's counterterrorism speeches, and that the legal policies they set out may be better understood not as a reticulated regulatory scheme, but rather on a common law model.

Closing Plenary: Preventing Torture In The Fight Against Terrorism – Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

I am Lori Damrosch. I am the president of the American Society of International Law. As this is our closing plenary for our 2015 annual meeting, I thought it would be appropriate for me to open it and to say a few words. First of all, it is a tradition at our annual meeting to reserve a place or two for the late-breaking events, or the ‘‘hot topics.’’

Double Remedies In Double Courts, Sungjoon Cho, Thomas H. Lee

Faculty Scholarship

This Article uses an ongoing trade controversy litigated in U.S. courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the Article proposes an engagement model as a solution to the double courts, single issue problem.

Formalism And Distrust: Foreign Affairs Law In The Roberts Court, Harlan G. Cohen

Faculty Scholarship

When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence.

The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state …

Theorizing Precedent In International Law, Harlan G. Cohen

Faculty Scholarship

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a …

An Introduction: Adapting To A Rapidly Changing World, Monica Hakimi, Natalie L. Reid, Samuel Witten

Faculty Scholarship

The 2015 American Society of International Law (ASIL) Annual Meeting aimed to assess how international law is and should be adapting to the profound global changes that are now underway. The Meeting took place against a dramatic backdrop of events: the rapid expansion of the so-called Islamic State in Syria and Iraq; a security and refugee crisis in the Middle East; escalating conflict in Eastern Ukraine and Crimea; an Ebola crisis in West Africa; and the build-up to a widely anticipated round of negotiations on climate change. These and similar geopolitical developments raise serious questions about the continued relevance and …

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

A Military Justice Solution In Search Of A Problem: A Response To Vladeck, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

In “Military Courts and Article III,” law professor Steve Vladeck proposes a wholesale replacement of the foundation upon which court-martial jurisdiction has stood since the inception of the United States. In an effort to provide a unifying theory grounded in international law, Professor Vladeck fails to properly distinguish the jurisdiction established by Congress to regulate the armed forces from the jurisdiction established to punish violations of the laws of war. This conflation yields confusion about military jurisdiction which ripples throughout the theory. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a …

The Hudson Medal Luncheon: "The Unity Of International Law" – Introductory Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

The luncheon meeting was convened at 1:00 p.m., Friday, April 10. The luncheon was convened with the opening remarks given by Lori Damrosch, President of the American Society of International Law. Michael Reisman of Yale Law School moderated the panel and introduced the honoree: Pierre-Marie Dupuy of the Graduate Institute of International and Development Studies, Geneva.

Distributing The Responsibility To Protect, Monica Hakimi

Faculty Scholarship

Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights abuses – genocides, ethnic cleansings, crimes against humanity, and systemic war crimes – occur with alarming frequency. And the international response is often slow or ineffectual.

The most recent development for addressing this problem is the ‘responsibility to protect’, an idea that has received so much attention that it now goes simply by R2P. R2P stands for two basic propositions. First, each state must protect its population from atrocities. This proposition is well …

Migrant Construction And Domestic Workers In The Arab Gulf States: Modern - Day Slaves?, Omaya Chidiac

LLM Theses

This thesis examines the conditions of migrant construction and domestic workers in the Arab Gulf. I explore literatures on migrant labour, precariousness, and slavery. I also look at international and domestic legal instruments as well as data produced by several human rights organizations. This thesis shows how the mechanisms involved in the migration of migrant construction and domestic workers exacerbate vulnerability and precariousness. I examine the ways in which social locations including gender and race play a role in discrimination against migrant construction and domestic workers in the Arab Gulf, thus assisting conditions of slavery to arise. My aim is …

Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali

Touro Law Review

No abstract provided.

Responsibility To Protect (R2p), The Responsibility Of The International Community To Protect Syrian Citizens, Ghuna Bdiwi

LLM Theses

The responsibility to protect (R2P) doctrine allows the international community to intervene for humanitarian purposes in events of massive violations of human rights. However, the legality of humanitarian intervention has received considerable critical attention because of its direct conflict with two fundamental norms in international law: the prohibition of the use of force, and the principle of state sovereignty. In Syria, mass atrocity crimes are escalating on a daily basis. Until now, international efforts have failed to find a peaceful formula to stop the crisis. International law allows the Security Council to authorize humanitarian intervention under the power of Chapter …

Development Through Trade Disputes: Building A Reputation Using The World Trade Organization's Dispute Settlement System, Jason L. Holliday

West Virginia Law Review

No abstract provided.

International Investment Agreements: Are Their Policy Aims Served By Their Broad Definitions Of Covered “Investors” And “Investments”?, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

With negotiation of “mega-treaties” such as the 12-country Trans-Pacific Partnership (TPP) and investment treaties between the EU and other large economies such as Canada and the United States, international investment agreements (IIAs) are gaining fame and raising a host of important policy questions. Among those questions are who/what the treaties benefit and at what cost.

Review Essay--Bilingual Education In The United States: An Idea Whose Time Has Come, S.I. Strong

Journal of Legal Education

No abstract provided.

China's Nine-Dashed Map: Maritime Source Of Geopolitical Tension, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

The South China Sea (SCS) is becoming an increasingly contentious source of geopolitical tension due to its significance as an international trade route, possessor of potentially significant oil and natural gas resources, China’s increasing diplomatic and military assertiveness, and the U.S.’ recent and ongoing Pacific Pivot strategy. Countries as varied as China, Taiwan, the Philippines, Indonesia and other adjacent countries have claims on this region’s islands and natural resources. China has been particularly assertive in asserting its SCS claims by creating a nine-dash line map claiming to give it de facto maritime control over this entire region without regard to …

Sources Of International Law, Louis B. Sohn

Georgia Journal of International & Comparative Law

No abstract provided.

The Growing Importance Of Customary International Human Rights Law, Richard B. Lillich

Georgia Journal of International & Comparative Law

No abstract provided.

Book Review: Sources Of State Practice In International Law, Anne Burnett

Georgia Journal of International & Comparative Law

No abstract provided.

Legalizing Assassination? Terrorism, The Central Intelligence Agency, And International Law, Daniel B. Pickard

Georgia Journal of International & Comparative Law

No abstract provided.

The Kosovar Declaration Of Independence: "Botching The Balkans" Or Respecting International Law?, Milena Sterio

Georgia Journal of International & Comparative Law

No abstract provided.