Courts Commons^™

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

International Law: Corpus Linguistics And Ordinary Meaning, Eric Talbot Jensen, James Lee Rex

Faculty Scholarship

The application of corpus linguistics to clarify ambiguity or provide insight in legal interpretation is quickly gaining recognition within the United States, especially among the judiciary. However, very little has been done to assess its application to international law, particularly as a means of assisting international courts and tribunals. In the international legal system—where ambiguity inevitably arises from the great diversity of linguistic and cultural systems throughout the world—the norm for understanding contested terms within a treaty or agreement is to look for the “ordinary meaning to be given to the terms of the treaty in their context and in …

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

Advocates Say Isds Is Necessary Because Domestic Courts Are ‘Inadequate,’ But Claims And Decisions Don’T Reveal Systemic Failings, Maria Rocha, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

Proponents of including investor-state dispute settlement (ISDS) provisions in treaties, contracts, and even national laws argue that ISDS is necessary because domestic courts are “inadequate.” Without this mechanism, foreign investors would be dependent on domestic courts and administrative mechanisms, which, proponents claim, are often inefficient, slow, biased, corrupt, and lacking in international law expertise, especially in developing countries. As one insight to analyze the “inadequate courts” argument, CCSI has examined treaty-based ISDS cases in which investors complained of domestic court proceedings or decisions, including the specific complaints and the tribunals’ analysis of those claims.

A Clarified Standard? A Case Note On Monasky V. Taglieri, Rebecca Jacobson

Cardozo Law Review

No abstract provided.

Brief For Amici Curiae Andrea K. Bjorklund, Diane Desierto, And Franco Ferrari In Support Of Petitioners-Appellants And Reversal, James E. Berger, Charlene C. Sun, Diane Desierto, Anread K. Bjorklund, Franco Ferrari

Court Briefs

No Date for Oral Argument Has Been Set

No. 20-7113
Hulley Enterprises Ltd. v. Russian Federation

On appeal from the United States District Court for the District of Columbia, No. 14-1996 (BAH)

From the Summary of the Argument

Staying enforcement of an arbitral award pending a decision by a court in the place of arbitration is unusual; staying enforcement of an arbitral award for more than six years is almost unheard-of.⁶ The continued stay of proceedings in this case ignores the fact that arbitral awards are presumptively enforceable; non-enforcement is the exception rather than the rule.

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⁶ See …

Revisiting The International Court Of Justice Procedure For The Revision Of Judgments, Juliette Mcintyre

Michigan Journal of International Law

The International Court of Justice (“ICJ”) is a court of first and last instance. Its decisions are “final and without appeal.” At first blush, this seems uncontroversial; it is a simple restatement of the well-established principle of res judicata. But if the court makes a judicial pronouncement without all the facts to hand, can one say that the decision is legitimate and authoritative? Pursuant to article 61 of the ICJ’s Statute, the court does have the authority to revise a judgment in certain, limited circumstances. Revision is a remedy that enables the court, upon the application of a party, …

"Clerical Mistake In A Judgment" Under Israeli And American Procedural Law – A New Model, Yitshak Cohen

Cleveland State Law Review

This Article examines the development and efficiency of the procedure for correction of a clerical mistake in a judgment in the Israeli law. As is well known, the procedure offers a short and simple way to correct an error in language within a decision. The litigants may file a motion to correct a decision in the same court that granted it, without having to file an appeal in the appellate court. The difficulty, however, is that this procedure contains three fundamental flaws that might even hinder its purpose: First, the law binds the parties and the court to the same …

A Concept Of Shared Principles And The Constitutional Homogeneity In Europe: The Case Of Subsidiarity, Volker Roeben

Cardozo International & Comparative Law Review

The article explores the concept of subsidiarity as a shared legal principle in both the European Union (EU) and German law, focusing on its role in ensuring the accountability of central authority while safeguarding the autonomy of peripheral legislatures. It highlights the convergence of the Court of Justice of the European Union (CJEU) and the German Federal Constitutional Court (FCC) on a rationale of legality, aimed at preventing central overreach into peripheral competences. Despite this alignment, the article notes divergent outcomes in the application of subsidiarity, with the FCC more frequently invalidating federal legislation compared to the CJEU's more restrained …

Deportation Arrest Warrants, Lindsay Nash

Articles

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants” annually, authorized by …

Weaving A Broader Tapestry, Mark A. Drumbl

Scholarly Articles

This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020).

Charles Jalloh delivers a comprehensive and authoritative survey of the legacy—in law—of the Special Court for Sierra Leone (SCSL). Through compendious research and considerable personal experience, Jalloh tracks the SCSL’s jurisprudential contributions and legal footprints upon a number of doctrinal areas: child soldiering, forced marriage, immunities, personal jurisdiction, and amnesties. Jalloh also examines the SCSL’s interface with Sierra Leone’s truth commission. Indeed, the SCSL is among the few …

Politics And The Institutional Integrity Of The Icc, In The Past, Present, And Future Of The International Criminal Court (Alexander Heinze & Viviane Dittrich Eds., 2021), Shannon Fyfe

Books and Chapters

The Rome Statute of the International Criminal Court (‘Rome Statute’ and ‘ICC‘) emerged following years of interest from various governments in establishing a permanent court to prosecute perpetrators of international crimes. The treaty that eventually established the ICC was the result of inter-governmental negotiations, which were ultimately successful in large part due to the ‘tribunal fatigue’ of governments concerned by “the financial and political costs of creating ad hoc United Nations (‘UN’) criminal tribunals for the atrocities that burdened so many regions of the world”. A permanent court would “provide greater efficiencies in addressing the investigation and prosecution of atrocity …

The Participation Principle And The Dialectic Of Sovereignty-Sharing, George K. Foster

Seattle University Law Review

States around the world are ceding authority to international institutions, devolving powers to lower-level political subdivisions, and granting forms of autonomy to Indigenous peoples and other minority groups. At the same time, states are increasingly offering groups and individuals “participation rights”: opportunities to participate in sovereign prerogatives without exercising control. These opportunities range from providing input into environmental decision-making, to collaborating with law enforcement in community policing programs, to receiving a share of natural-resource revenues. This Article contends that all of these developments represent a dividing up of the collection of rights known as sovereignty, and that participation rights reflect …

International Courts & Judicial Affairs, Sara L. Ochs, Paula Henin, Paola Patarroyo, Haydee Dijkstal, Ira Trako, Kabir Duggal, Chloe Fletcher, Alexander Witt, Marc Weitz

All Faculty Scholarship

This chapter reviews some of the most significant developments made by international courts and tribunals in 2020.

I. International Court of Justice As of the time of writing (November 2020), this year, the International Court of Justice (Court) has rendered one order on provisional measures, two judgments on appeals from decisions of the International Civil Aviation Organization (ICAO) Council, and two orders relating to expert evidence.

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Form Or Substance? Excluding Liability For Misrepresentation, Zhi Jia Koh

Singapore Law Journal (Lexicon)

Exclusion of liability for misrepresentation has long been controversial. There are many ways in which one could go about doing it, namely, through express exclusion of liability clauses, entire agreement clauses, non-reliance clauses, and maybe even basis clauses. The key question is whether such clauses are subject to s 3 of the Misrepresentation Act, which prevents a contracting party from escaping liability when it is unreasonable to do so. Notably, English jurisprudence has taken the view that any term that excludes liability for misrepresentation in effect would be subject to the test of reasonableness. Singapore appears to be moving in …

International Commercial Courts In The United States And Australia: Possible, Probable, Preferable?, S. I. Strong

Faculty Articles

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Epilogue: Some Musings On Deterrence, Mark A. Drumbl

Scholarly Articles

Does law matter? Might it make a difference? Affect human behaviour? Assumptively, yes, it is easy to surmise such causation. Indeed, law can guide. Law manages. At times, law can even control and command and direct. But law is such a sprawling category. Not all laws are the same. Some laws are, in an Orwellian sense, more equal than others. Some walk on four legs, which is good, but not every law comes to walk on two legs when it is better. And some laws, well, they may not move anywhere (or anyone) at all.

The Assassin Was Not Insane: The Acquittal Of The Assassin Of A Genocide's Architect As Symbolic Jury Nullification, Christian G. Ohanian

Cardozo International & Comparative Law Review

The acquittal of Soghomon Tehlirian for assassinating Talaat Pasha, a key architect of the Armenian Genocide, represents a significant instance of symbolic jury nullification. This verdict symbolically addressed the moral and legal failure to hold Talaat Pasha accountable, influencing the development of international human rights law and figures like Raphael Lemkin.

The Recent Changes Introduced To The Method Of Removal Of Judges Of The Supreme Court Of Bangladesh & The Consequent Triumph Of An All-Powerful Executive Over The Judiciary: Judicial Independence In Peril, M. Ehteshamul Bari

Cardozo International & Comparative Law Review

Nothing contributes more to the firmness and independence of the judiciary as permanency in office, as it enables judges to decide cases, regardless of whether their decisions please the executive or the legislature. The Constitution of Bangladesh, 1972, originally empowered the Parliament to remove judges of the Supreme Court only on the grounds of proved misbehavior or incapacity. However, the Constitution (Fourth Amendment) Act, 1975, which replaced parliamentary democracy with a presidential form of government, empowered the President to remove the judges of the Supreme Court in accordance with his own will. But two years later in April 1977, the …

Book Review: The Right To A Fair Trial In International Law, Robert Currie

Articles, Book Chapters, & Popular Press

No abstract provided.

Judicialization Of Election Disputes In Africa's International Courts, James Thuo Gathii, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

This article assesses what benefit losers of high-stakes national elections think they will get from petitioning international courts in Africa. We seek to establish how judicial intervention differs before an election when there is a risk of an international law violation, versus after an election has occurred and the result is viewed as flawed. We address these questions by drawing on a set of disputes decided by international courts in Africa in the African Court, the Economic Community of West African States (“ECOWAS”) Community Court of Justice, and the East African Court of Justice. We supplement our analysis by discussing …

International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli

Articles

The manifestation of the international rule of law appears as one of the possible paths to check the rule of power and establish an egalitarian system. Many international organizations have emphasized on the international rule of law in their objectives and mandates and have called the states to act in their service. The domestic courts have resonated with the call by exhibiting internationalism in their decisions. The international norms have been domesticated by the courts by adopting several incorporation and interpretation methods. The domestic courts, therefore, have been called as the ‘agents’ in the service of international law and protectors …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Functional Statehood In Contemporary International Law, William Thomas Worster

Brooklyn Journal of International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

The Impact Of Cultural Heritage On Japanese Towns And Villages, Yuichiro Tsuji Dr.

Seattle Journal of Technology, Environmental, & Innovation Law

In 1954, when historically significant clays and clay pots were found in the Iba district of Shizuoka prefecture, the city applied to the prefectural education committee for a historic site designation. The committee granted this designation to the city..

However, in 1973 the education committee lifted its permission to promote development around the location. Historians have sought revocation of this decision under the Administrative Case Litigation Act (ACLA), but the Supreme Court has denied standing. By denying standing, the Japanese Supreme Court allows the prefecture to destroy a historical site.

First, this paper seeks to discuss the doctrine of standing …