International Law Commons^™

Significance Of The Fujimori Trial, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Safeguarding The Integrity Of Tribal Elections Through Campaign Finance Regulation, Paul W. Shagen

Cardozo Public Law, Policy & Ethics Journal

The article argues that Indian tribes must enact comprehensive campaign finance regulations to protect the integrity of their electoral processes, balancing the need to prevent corruption with First Amendment rights. These regulations must navigate the restrictive framework set by the Montana ruling, which limits tribal authority over nonmembers, while leveraging tribal sovereignty and cultural values to uphold self-governance. The analysis emphasizes the importance of aligning such regulations with both the Buckley framework and tribal constitutions to ensure enforceability and respect for collective interests.

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

Scholarly Works

The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Scholarly Works

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

From The Chair, Lela P. Love

Articles

No abstract provided.

The Effective Reach Of In Personam Reasoning In Private International Law, Tiong Min Yeo

2009 Yong Pung How Professorship of Law Lecture

Within the equitable jurisdiction, the phrase in personam has been used to describe the means of enforcement of the equitable decree, the justification for equitable jurisdiction generally, and the mechanism by which chancery rulings effectively override the common law. In the context of curial proceedings, the phrase is also used to describe the nature of jurisdiction assumed over a person, as well as the effect of a decree against a person, as opposed to a thing. In the discourse on rights, it is used to distinguish personal from property rights. In personam reasoning in the equitable sense has been used …

Commerce Flaws: "Taking Exception" With Garb V. Poland'S Misinterpretation Of The Commercial Activity And Takings Exceptions Of The Fsia, Joshua A. Kirstein

Cardozo Journal of International and Comparative Law

The Second Circuit's application of the Foreign Sovereign Immunities Act (FSIA) in the Garb case was flawed, as it incorrectly used the "core functions" test instead of the "legal characteristics" test. This led to the improper granting of sovereign immunity to Poland, denying justice to the plaintiffs in a Holocaust-era property dispute. The decision undermines the FSIA's intent and sets a concerning precedent.

The "Define And Punish" Clause And The Limit Of Universal Jurisdiction, Eugene Kontorovich

Faculty Working Papers

This Article examines whether the "Define and Punish" clause of the Constitution empowers Congress to criminalize foreign conduct unconnected to the United States. Answering this question requires exploring the Constitution's "Piracies and Felonies" provision. While it is hard to believe this can still be said of any constitutional provision, no previous work has examined the scope of the "Piracies and Felonies" powers. Yet the importance of this inquiry is more than academic. Despite its obscurity, the Piracies and Felonies power is the purported Art. I basis for a statute currently in force, which represents Congress's most aggressive use of universal …

The Push To Criminalize Aggression: Something Lost Amid The Gains?, Mark A. Drumbl

Scholarly Articles

The International Criminal Court has jurisdiction over the crime of aggression, but the Rome Statute fails to define the crime. A Special Work- ing Group on the Crime of Aggression, however, has made considerable progress in developing a definition. The consensus that has emerged favors a narrow definition. Three characteristics animate this consensus: (1) that state action is central to the crime; (2) that acts of aggression involve inter- state armed conflict; and (3) that criminal responsibility attaches only to very top political or military leaders. This Article normatively challenges this consensus. I argue that expanding the scope of the …

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

Jurisdiction Without Territory: From The Holy Roman Empire To The Responsibility To Protect, Anne Orford

Michigan Journal of International Law

This Essay focuses upon one contemporary manifestation of that ongoing battle over the relationship between jurisdiction and control over territory-the emergence and institutionalization of the "responsibility to protect" concept. The idea that States and the international community have a responsibility to protect populations has shaped internationalist debates about conflict prevention, the use of force, and international administration since its development by the International Commission on Intervention and State Sovereignty (ICISS) in 2001. The responsibility to protect concept is premised on the notion, to quote former Secretary- General Kofi Annan, that "the primary raison d'être and duty" of every State is …

From Pinochet To Rumsfeld: Universal Jurisdiction In Europe 1998-2008, Wolfgang Kaleck

Michigan Journal of International Law

This Essay provides a survey of more than fifty universal jurisdiction proceedings in European courts and illustrates that universal jurisdiction is no longer a seldom-used theoretical concept, but a widespread practice. However, it is a practice that faces a number legal and practical obstacles identified here. Similar difficulties are encountered in other mechanisms used to combat impunity, including territorial and personality jurisdiction, state accountability at the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), and civil litigation in the United States. The Essay then begins an evaluation of the last ten years of universal …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Confronting The Past: Democratic Rhetoric Or Socially Necessary?, Rachel Oster

Human Rights & Human Welfare

In the current globalized international system, politics, economics, and societal issues are the concern of not only the state but of the world as a whole. It is increasingly apparent that participation in the global community requires states to implement, at minimum, conventional democracy within which individual rights are recognized and protected. Yet for much of the developing world, democratic regimes are partially contested given that many states were historically controlled by non-democratic, often militant regimes that offered security to citizens during times of economic crises.

Universal Jurisdiction As An International 'False Conflict' Of Laws, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This symposium Essay uses the private law notion of a "false conflict" of laws to develop a coherent and normatively sound legal framework for evaluating the exercise of universal jurisdiction by states in the international legal system. The Essay suggests that properly exercised, universal jurisdiction creates no conflict of laws among states because, as a matter of prescriptive jurisdiction, universal jurisdiction is never really extra-territorial, and thus never generates the possibility of conflicting, overlapping laws. Rather, universal jurisdiction comprises a comprehensive territorial jurisdiction, originating in a universally-applicable international law that covers the globe. Individual states may apply and enforce that …

Universal Jurisdiction As An International "False Conflict" Of Laws, Anthony J. Colangelo

Michigan Journal of International Law

This Essay proposes a framework for analyzing the concept of universal jurisdiction and evaluating its exercise by States in the international legal system. In brief, the author argues that universal jurisdiction is unique among the bases of prescriptive jurisdiction in international law, and that its unique character gives rise to unique-and underappreciated- limiting principles. The main analytical device the author uses to make this argument is the notion of a "false conflict," which is borrowed from the private law field of conflict of laws, also known outside the United States as private international law. The author does not suggest that …

Reclaiming International Law From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The …

Double Jeopardy And Multiple Sovereigns: A Jurisdictional Theory, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and sharpens normative assessment of that doctrine.

The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court's dual sovereignty doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as …

Territory, Territoriality, And The Resolution Of Jurisdictional Conflict, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

On The Evolution Of The Law Of International Sea Piracy: How Property Trumped Human Rights, The Environment And The Sovereign Rights Of States In The Areas Of The Creation And Enforcement Of Jurisdiction, Leticia M. Diaz, Barry Hart Dubner

Barry Law Review

This article examines the statistics concerning piratical incidents occurring in the year 2008 and their impact on the world economy. This article also reviews the total scope of sea piracy worldwide with regard to the number and type of incidents thereof, because Somalia is not the only place in the world where sea piracy occurs. Finally, this article analyzes the history of prescribing and enforcing a jurisdiction regarding the international law of sea piracy.

Treaties As "Part Of Our Law", Ernest A. Young

Faculty Scholarship

No abstract provided.

False Sanctuary: The Australian Antarctic Whale Sanctuary And Long-Term Stability In Antarctica, Donald K. Anton

Cornell Law School Berger International Speaker Papers

The recent assertion of maritime adjudicative jurisdiction by Australian courts over a Japanese whaling company for acts contrary to Australian law in the Antarctic Southern Ocean is alarming. Private litigation, based on an internationally disputed claim to sovereignty over Antarctic territory and a further contested claim to an EEZ appurtenant to that territory, ought not to serve as a proxy for cooperative (and hopefully effective) international management of the Antarctic environment. The big danger is that if other states follow Australia's lead in claiming sovereign rights and exercising attendant jurisdiction the chances of natural resource over-exploitation and environmental harm in …

Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich

Faculty Working Papers

This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …

"Rachel's Law" Wraps New York's Long-Arm Around Libel Tourists; Will Congress Follow Suit?, Justin S. Hemlepp

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Lessons From Katrina: What Went Wrong, What Was Learned, Who's Most Vulnerable, Irwin Redlener, David M. Abramson, Richard Garfield

Cardozo Journal of Equal Rights & Social Justice

The article examines the lessons learned from Hurricane Katrina, emphasizing that while natural disasters are inevitable, their impact can be significantly mitigated through improved planning, addressing social vulnerabilities, and learning from past failures. It argues that Katrina's devastating effects were exacerbated by existing social issues and inadequate preparedness, highlighting the need for comprehensive strategies to reduce future risks.

Introductory Note To Genocide Accountability Act, Mark A. Drumbl

Scholarly Articles

On December 21, 2007, President George W. Bush signed into law the Genocide Accountability Act of 2007 (GAA) (Public Law 110-151). Co-sponsored on a bipartisan basis by several Senators, this bill passed in the Senate on March 29, 2007, and passed in the House .of Representatives on December 5, 2007, in both cases by voice vote. The GAA received considerable support from human rights groups throughout the legislative process.

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.

The Effects Test: Extraterritoriality’S Fifth Business, Austen L. Parrish

Articles by Maurer Faculty

American laws increasingly regulate the conduct of foreigners abroad. The growth in extraterritorial laws, in no small part, can be traced to the effects test - a doctrine that instructs courts to presume that Congress intended to regulate extraterritorially when foreign conduct is found to have a substantial effect within the United States. For many scholars and lawyers, the effects test is the doctrinal lynchpin for determining the geographic reach of domestic laws. Territorial limits on legislative jurisdiction, on the other hand, are seen as anachronistic; a remnant of a pre-modern, pre-globalized world.

This article takes a different, more skeptical …