International Law Commons^™

Democratic Justice In Transition, Marion Smiley

Michigan Law Review

Ruti Teitel's Transitional Justice and Ian Shapiro's Democratic Justice come out of very different academic traditions. But they both develop a view of justice that might loosely be called pragmatic by virtue of its treatment of justice as a value that is simultaneously grounded in practice and powerful in bringing about social and political change. Moreover, they both use this shared pragmatic view of justice to provide us with two things that are of great importance to the study of transitional justice and democracy in general. The first is an explanatory framework for understanding how legal institutions and claims about …

A Constitutional Beginning: Making South Africa's Final Constitution, Christina Murray

University of Arkansas at Little Rock Law Review

No abstract provided.

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …

Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles

Law Faculty Publications

No abstract provided.

Antiterrorism Military Commissions: Courting Illegality, Jordan J. Paust

Michigan Journal of International Law

On November 13, 2001, President Bush issued a sweeping and highly controversial Military Order for the purpose of creating military commissions with exclusive jurisdiction to try certain designated foreign nationals "for violations of the laws of war and other applicable laws" relevant to any prior or future "acts of international terrorism." The Order reaches far beyond the congressional authorization given the President "to use all necessary and appropriate force," including "use of the United States Armed Forces," against those involved in the September 11th attack "in order to prevent any future acts of international terrorism against the United States by …

Applying The Market Participant Exception To Selective Purchasing Laws That Affect Foreign Commerce Relations: Reading Between The Lines Of National Foreign Trade Council V. Natsios, Michelle C. Sarruf

Seattle University Law Review

In this Note, I will examine the background of the situation in Burma as well as the federal and state legislation passed in response to the atrocities occurring within Burma's borders. I will then address the First Circuit's holding that the Massachusetts Burma Law is unconstitutional, focusing on the court's foreign Commerce Clause analysis and failure to apply the market participant exception. Finally, I will discuss the history of and the justifications for the market participant exception, exploring how the exception should be applied in the context of foreign commerce.

Supreme Law Or Basic Law? The Decline Of The Concept Of Constitutional Supremacy, Rett R. Ludwikowski

Cardozo Journal of International and Comparative Law

The article examines the decline of constitutional supremacy in the context of increasing international legal influences and the rise of supranational organizations. It argues that the traditional dualistic view of domestic and international law is no longer tenable, as national constitutions are no longer the sole supreme law. Instead, the legal landscape has become multifaceted, with overlapping national, supranational, and international legal structures. This shift is attributed to the erosion of state sovereignty and the integration of international law into domestic legal systems, even in countries like the United States.

A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann

Articles & Chapters

As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... …

W(H)Ither Zschernig?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court's citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less "constitutional" in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of "settled ... implied preemption doctrine," the Court's preemption analysis was anything but ordinary. Indeed, Crosby's version of preemption analysis is subject to the …

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Articles

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …

Constitutional Change And International Government, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley

Michigan Law Review

In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …

Christians And The Military, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Carl Schmitt: The Defective Guidance For The Critique Of Political Liberalism, Emanuel Richter

Cardozo Law Review

No abstract provided.

Ka’Adan V. Israel Land Administration, Aharon Barak, Theodor Or, Itzchak Zamir, Mishael Cheshin, Yaakov Kedmi

Translated Opinions

Facts: The State of Israel, through the Israel Lands Administration, allocated land in the Eron valley region to the Jewish Agency for Israel.  The Jewish Agency, through a cooperative society, set up the settlement of Katzir on this land. The objectives of the Jewish Agency for Israel include the settlement of Jews throughout the land of Israel. For its part, the cooperative society will only grant membership to Jews. Petitioners, a couple with two daughters, are Arabs. They requested to live in the settlement of Katzir. According to petitioners, their request was immediately denied by reason of their being …

A V. State Of Israel, Dorit Beinisch, Aharon Barak, Izhak Englard

Translated Opinions

Appeal on the judgment of the Tel-Aviv–Jaffa District Court (Justice S. Rotlevy) dated 3 June 1998 in CrimC 511/95.

Facts: The appellant was convicted of offences of assault and child abuse. The acts for which she was convicted included hitting a child on his mouth, which resulted in the child losing a milk tooth. The appellant was found to have hit her children regularly on various parts of their bodies, both with her hand and with a sandal, and to have been accustomed to throw shoes at them. The appellant argued, both in the trial court and in the Supreme …

Self-Determination Of The Peoples Of Quebec Under International Law, Johan D. Van Der Vyver

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Criminal Aliens Get Pinched: Sandoval V. Reno, Aedpa's And Iirira's Effect On Habeas Corpus Jurisdiction, Matthew J. Droskoski

Villanova Law Review (1956 - )

No abstract provided.

The Constitutional Canon: The Challenge Posed By A Transitional Constitutionalism (Symposium: The Canon(S) Of Constitutional Law), Ruti Teitel

Articles & Chapters

No abstract provided.

The Imprint Of Kosovo On International Law, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Globalization In Search Of Justification: Toward A Theory Of Comparative Constitutional Interpretation, Sujit Choudhry

Indiana Law Journal

No abstract provided.

Pinochet And International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith

Michigan Law Review

The British House of Lords recently considered whether Augusto Pinochet was subject to arrest and possible extradition to Spain for alleged acts of torture and other egregious conduct carried out during his reign as Chile's head of state. The Law Lords held that a large majority of the charges against Pinochet were not proper grounds for extradition under British law. They also held, however, that Pinochet could potentially be extradited for alleged acts of torture committed after Britain's 1988 ratifica· tion of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In reaching this latter conclusion, …

Islamic And American Constitutional Law: Borrowing Possibilities Or A History Of Borrowing?, Azizah Y. Al-Hibri

Law Faculty Publications

Islam is commonly viewed in the West as being incompatible with democracy. It is also viewed as an "Oriental" religion that has spawned violence and encouraged human rights violations. Because of the historical interaction between the West and Islam, the United States has recently been supporting efforts to export its democratic principles and human rights values to Muslim countries. In this context, the question of constitutional borrowing gains special significance. To assess the possibilities of constitutional borrowing between Islamic countries and the United States, it is important to first discuss the historical relation between the two, as well as between …

The Imposition Of The Death Penalty In The United States Of America: Does It Comply With International Norms?, Beverly Mcqueary Smith

Touro Law Review

No abstract provided.

Laughing At Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article responds to two articles by Professor John Yoo appearing in the same volume. Professor Yoo maintains that treaties, either categorically or presumptively, have the same status in the United States as in the United Kingdom, where they lack the force of domestic law, and hence are not judicially enforceable, until implemented by statute. This response argues that Yoo's thesis contradicts the text of the Constitution, which declares treaties to be the 'law of the land.' The response notes, further, that Professor Yoo's reliance on the ratification debates to read the Supremacy Clause's reference to treaties out of the …

Breard, Printz, And The Treaty Power, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court's anti-commandeering doctrine. The first concerns the distinction between commandeering and …

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …

Discussant, In Response To Justice Richard J. Goldstone, 1998 Otto L. Walter Lecture: International Human Rights At Century’S End, Stephen Ellmann

Articles & Chapters

No abstract provided.

Nineteenth-Century Orthodoxy, Richard B. Collins

Publications

No abstract provided.

The Treaty Power And American Federalism, Curtis A. Bradley

Michigan Law Review

For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …