Law Commons^™

Why Now Is The Time To Resolve The Dokdo/Takeshima Dispute, Garret Bowman

Case Western Reserve Journal of International Law

No abstract provided.

Twenty-First-Century Problems -- Twentieth-Century International Law, Harold Hongju Koh

Case Western Reserve Journal of International Law

No abstract provided.

International Criminal Law For Retributivists, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …

Canada V. United States Of America, Chios Carmody

Canada-United States Law Journal

The article focuses on the legal issues related to the 2014 Niagara Problem provided to judges in Niagara Moot Court Competition. Topics discussed include right to protect from terrorism by freezing the sale of a yacht where the proceeds were intended to pay a ransom to pirates, obligation exists under international law to recognize same-sex marriage and customary international law.

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Humanitarian Intervention Post-Syria: Legitimate And Legal?, Milena Sterio

Law Faculty Articles and Essays

This article looks at the state of affairs under international law by focusing on the existing ban on the use of force and the established exceptions thereto as of December 2014. Topics discussed include the concept of humanitarian intervention, the civil crises in Syria, and international law for the legality of military intervention in Syria. It also examines Harold Koh's proposed normative framework for humanitarian intervention.

The Spratly Islands Dispute: International Law, Conflicting Claims, And Alternative Frameworks For Dispute Resolution, Robin Gonzales

Calvert Undergraduate Research Awards

The Spratly islands dispute is a regional maritime territorial sovereignty dispute which involves six countries in the South China Sea – China, Taiwan, Vietnam, Philippines, Malaysia and Brunei. Underscored by the prospects of large natural energy reserves, control of strategic global maritime areas, and shifting global power dynamics, the dispute has significant international geo-strategic, economic, political and legal implications. This Honors Thesis evaluates the international legal standards for resolving maritime sovereignty disputes, provides a historiography of the six countries’ competing claims, and analyzes the legal soundness of their claims. This thesis also proposes and examines potential political and diplomatic frameworks …

Introduction - Papers From The 2013 American Society Of Comparative Law Annual Meeting, Kenneth S. Gallant, Sarah Howard Jenkins

University of Arkansas at Little Rock Law Review

No abstract provided.

Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Lost Without Translation?: Cross-Referencing And A New Global Community Of Courts, Antje Wiener, Philip Liste

Indiana Journal of Global Legal Studies

Anne-Marie Slaughter has described the "new world order" as characterized by some "conceptual shifts," including an increasing cooperation of domestic courts across nation-state boundaries. The cross-jurisdictional referencing of legal norms and decisions, as Slaughter holds, would lead into a "global community of courts." This article takes issue with that observation. We argue that for such a community to emerge, cross-referencing would need to be followed by an effective transmission of meaning from one (legal) context to another. Following recent insights in the field of International Relations norm research, however, we can expect such meanings to be contested-in particular, when different …

Military Intervention And Diplomatic Engagement In Libya: A Collage Of Policy, Force, And Law, Paul Williams, Anna Triponel

Contributions to Books

The case of Libya demonstrates the extent to which the law plays a role in enabling, shaping and constraining complex military and diplomatic operations. The law underpinned a number of decisions made at the policy level regarding military and diplomatic engagement. Although prior military operations can provide guidance for decision-making in future military operations, the application of the law to each case will be unique. The Libyan case study provides an example of how the law and politics intertwined to achieve the U.S. government’s objectives of protecting the Libyan people against violent attacks by their leader. This chapter examines the …

The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson

Faculty Scholarship

The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …

Egypt, Ethiopia, And The Nile: The Economics Of International Water Law, Daniel Abebe

Faculty Scholarship

As part of a Symposium on the book The Economic Foundations of International Law, this Article briefly compares and contrasts two distinct analytical approaches to international law — doctrinal versus economic — in the context of Egypt's and Ethiopia's dispute over the right to exploit the Nile River's water resources. The Article argues that the traditional doctrinal approach, one based solely on an examination of international water law, treaties, and customary international law is unlikely to result in a legal conclusion that either state is likely to respect because such an approach fails to consider the incentives, material capabilities, …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy Meyer

Faculty Scholarship

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism's retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states-often rising or reluctant powers such as China and the United States-without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual …

The Future Of General Jurisdiction: The Effects Of Daimler Ag V. Bauman, Stephanie Denker

Fordham Journal of Corporate & Financial Law

The Due Process Clause requires a court to have jurisdiction over a lawsuit before binding the parties to its judgment. However, before 2014, the Supreme Court had not addressed whether a court could impute a subsidiary's contacts to its parent corporation for jurisdictional purposes. Because of this oversight, the Courts of Appeals split over how to impute a subsidiary's contacts. Some courts apply the agency test, while other courts apply variations of the alter ego test. As a result, courts inconsistently asserted jurisdiction over multinational corporations, leading plaintiffs to forum shop and corporations to speculate which forums might assert jurisdiction …

The Marrakesh Puzzle, Marketa Trimble

Scholarly Works

This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …

The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore

St. Mary's Law Journal

Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is …

Undocumented Migrants And The Failures Of Universal Individualism, Jaya Ramji-Nogales

Vanderbilt Journal of Transnational Law

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that …

Deciding To Intervene, Anna Spain

Publications

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should …

The Judge And The Drone, Justin Deystone

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Is The Butter Battle Book’S Bitsy Big-Boy Boomeroo Banned? What Has International Law To Say About Weapons Of Mass Destruction?, Roger S. Clark

NYLS Law Review

No abstract provided.

Understanding The Limits Of The Foreign Trade Antitrust Improvement Act Using Tort Law Principles As A Guide, Rene H. Dubois

NYLS Law Review

No abstract provided.

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …

Soy Dominicano - The Status Of Haitian Descendants Born In The Dominican Republic And Measures To Protect Their Right To A Nationality, Monique A. Hannam

Vanderbilt Journal of Transnational Law

On September 25, 2013, the Constitutional Tribunal of the Dominican Republic retroactively interpreted the Dominican Constitution to deny Dominican citizenship to children born to irregular migrants in Dominican territory since 1929. The tribunal's decision disproportionately affects approximately two hundred thousand persons of Haitian descent. In general, states have the right to determine their nationality criteria. However, the Dominican Republic violated international law by arbitrarily and discriminatorily depriving the Haitian descendants of their Dominican nationality and by increasing the incidence of statelessness. The international community should intervene urgently and decisively on behalf of the Haitian descendants. This Note proposes specific ways …

Determining International Responsibility Under The New Extra-Eu Investment Agreements: What Foreign Investors In The Eu Should Know, Freya Baetens, Gerard Kreijen, Andrea Varga

Vanderbilt Journal of Transnational Law

The EU's newly acquired competence over foreign investment poses largely unprecedented legal challenges: the Union's unique structure and functioning are bound to raise questions about the traditional format of international investor-State arbitration. Anticipating these challenges, the European Commission has proposed a Regulation on managing the financial responsibility that arises out of such arbitrations; a revised version of this proposal was adopted by the European Parliament and the Council of the European Union. After outlining the contemporary international investment regime, as well as the relevant aspects of the EU legal system, this Article scrutinizes three problematic issues under international law that …

Introductory Remarks, James Anaya

Publications

These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.

Book Review, Anna Spain

Publications

No abstract provided.

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Publications

No abstract provided.