International Law Commons^™

Fractured Territories And Abstracted Terrains: Human Rights Governance Regimes Within And Beyond The State, Larry Catá Backer

Indiana Journal of Global Legal Studies

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the …

Human Rights And Global Public Goods: The Sound Of One Hand Clapping?, Neil Walker

Indiana Journal of Global Legal Studies

Each operating in a presumptively general or universal register, 'public goods" and "human rights" are among the most popular and visible contemporary carriers of ideas of global law and governance and are therefore prime sources for any broader project of global justice. Their combination, moreover, holds out the prospect of a fertile engagement between the two core concerns of modern political morality our collective requirements and potential (public goods) and our individual dignity and well-being (human rights). Yet for all their ambition, public goods and human rights each face the formidable challenge of placing considerations of political authority and political …

Statehood, Power, And The New Face Of Consent, Sheldon Leader

Indiana Journal of Global Legal Studies

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning …

One Pillar: Legal Authority And A Social License To Operate In A Global Context, Hans Lindahl

Indiana Journal of Global Legal Studies

The claim that businesses have a social license to operate acquires concrete form in the second pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs) in the fundamental distinction between "compliance with all applicable laws" and "respect for human rights." The aim of this paper is to critically examine the presuppositions that undergird this distinction and to explain how and why moving beyond state-centered thinking about law, in response to violations of human rights by globally operating businesses, requires acknowledging that there is one pillar that embraces states and businesses: the legal obligation to comply with international …

Picking Up The Slackline: Can The United States And Japan Successfully Regulate Commercial Fishing Of Bluefin Tuna Following Failed Intergovernmental Attempts?, Sarah E. Bauer

Indiana Law Journal

Part I of this Note will address the reasons why intergovernmental organizations have failed to adequately regulate the commercial fishing of Bluefin tuna. Part II offers an analysis of the Bluefin markets in the United States and Japan and argues that these countries are ideal candidates for successful Bluefin regulation because of their market structures. Part III explores the likelihood that the two countries would implement such regulations, taking into account the respective governments’ histories of species-specific regulation.

Some Newly Emergent Geographies Of Injustice: Boundaries And Borders In International Law, Upendra V. Baxi

Indiana Journal of Global Legal Studies

This conversation examines the relationship between the boundaries and borders in international law and the production of geographies of injustice through the lens of the colonial epistemologies, especially of private international law in the face of mass social disasters like the archetypal Bhopal catastrophe. I also address the languages and logics of coloniality and postcoloniality, as states of consciousness and social organization, under the complex and contradictory unity of neoliberalism.

To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein

Indiana Journal of Global Legal Studies

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …

An Innovative Matrix For Dispute Resolution: The Dubai World Tribunal And The Global Insolvency Crisis, Jayanth K. Krishnan, Harold Koster

Articles by Maurer Faculty

This study examines a legal experiment that occurred during the height of the global financial crisis. As markets from the United States to Europe to the Global South shook, one country – the United Arab Emirates – found itself on the brink of economic collapse. In particular, in 2009 the U.A.E’s Emirate of Dubai was contemplating defaulting on $60 billion of debt it had amassed. Recognizing that such a default would have cataclysmic reverberations across the globe, Dubai’s governmental leaders turned to a small group of foreign lawyers, judges, accountants, and business consultants for assistance. Working in a coordinated fashion, …

A Time Of Turmoil, Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynsky, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

Agora: Reflections On Rjr Nabisco V. European Community: The Scope And Limitations Of The Presumption Against Extraterritoriality, Hannah Buxbaum

Articles by Maurer Faculty

No abstract provided.

Introductory Note To United Nations Security Council Resolution 2298, David P. Fidler

Articles by Maurer Faculty

On July 22, 2016, the UN Security Council unanimously adopted Resolution 2298 supporting efforts by the Organisation for the Prohibition of Chemical Weapons (OPCW) to remove chemical weapons from Libya and facilitate their destruction in another country. This resolution was critical to the international effort to prevent chemical weapons in Libya from being at risk of acquisition by members of the so-called Islamic State operating in Libya.

Tlos And Global Financial Markets: The Case Of Derivatives, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

Foreign Governments As Plaintiffs In U.S. Courts And The Case Against "Judicial Imperialism", Hannah L. Buxbaum

Articles by Maurer Faculty

One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a …

The Global Data Protection Implications Of "Brexit", Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Indiana Law Journal

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

The Inter-Korean Conflict Over The Northern Limit Line: Applying The Theory Of Historical Consolidation, Hyun Jin Kim

Maurer Theses and Dissertations

Regardless of its uncertain legal status, it is the legal reality that the Northern Limit Line (“NLL”) has served as a de facto maritime demarcation line in the Yellow/West Sea in the absence of a peace treaty for the Korean Peninsula. Aside from its legal definition, however, the core of the NLL conflict is whether it has been historically consolidated as a valid legal system that may be enforceable against all States, and whether South Korea has historic title over the waters lying south of the NLL. In order to find an answer, it is important to determine whether there …

An Unbalanced Act: A Criticism Of How The Court Of Arbitration For Sport Issues Unjustly Harsh Sanctions By Attempting To Regulate Doping In Sport, Melissa Hewitt

Indiana Journal of Global Legal Studies

To participate in international competitions, countries must submit to the doping rules set forth in the World Anti-Doping Code (the Code), a document brought into being by the World Anti-Doping Agency (WADA). Under the Agency's Code, athletes are required to commit to mandatory binding arbitration in the Court of Arbitration for Sport (CAS), which gives them few chances for review of unjustly harsh sanctions. The CAS needs to re-examine its method of appealing doping cases because WADA's current strict liability scheme, coupled with the CAS's transnational jurisdiction, continually violates the rights of international athletes.

Austerity, The European Council, And The Institutional Future Of The European Union: A Proposal To Strengthen The Presidency Of The European Council, Federico Fabbrini

Indiana Journal of Global Legal Studies

This article contextualizes the resilience of austerity in Europe, explaining it in light of the transformations in the EU system of governance. As the article maintains, since the eruption of the Eurocrisis, the European Council-the body congressing the heads of state and government of the EU member states together with its President and the President of the European Commission-has risen to the center of EU governance. In an intergovernmental institution such as the European Council, however, larger and wealthier states have been able to impose their preferences on other states-a development that is at odds with the anti-hegemonic nature of …

Legislating Safety Nets: Comparing Recent Social Protection Laws In Asia, Surabhi Chopra Prof.

Indiana Journal of Global Legal Studies

In recent years, several Asian countries have begun moving away from patchwork welfare programs toward providing more comprehensive social protection. This is a significant shift in a region where social welfare has not been politically popular, and the family has traditionally absorbed the burden of supporting the young, the old, and the ailing. Two of these states-India and Indonesia-have put new social protection initiatives into law rather than simply formulating executive policy. In this article, I examine recent social protection laws in both countries. I look in particular at India's National Food Security Law, passed in 2013, and Indonesia's laws …

The Role Of Central Banks In Global Austerity, Timothy A. Canova

Indiana Journal of Global Legal Studies

The literature on austerity, by scholars and policymakers alike, has largely downplayed the important role of central banks in designing and implementing global austerity both before and since the 2008 financial crisis. This article considers how and why the world's leading central banks display an inherent bias toward austerity. As central banks have become increasingly influenced and even captured by large private banks and financial institutions, they have pursued policy agendas that favor those same private interests. The structure of the U.S. Federal Reserve suggests a central bank that has been captured by design and is rife with inherent conflicts …

A Review Of "Climate Justice: Vulnerability And Protection," By Henry Shue, Edwardo Rhodes

Indiana Journal of Global Legal Studies

Henry Shue's Climate Justice: Vulnerability and Protection offers an extremely useful and readable guide to the key challenges, workable objectives, and possible responses to a major-if not the major-global problem faced today. For anyone interested or working in the area of international carbon emission control and remediation, this book places the subject in a combined philosophical and economic development framework while imposing an overarching principle of fairness.

Henry Shue presents an interesting and informative collection of essays and articles on climate change and the need for a method of global response to deal with the prickly issues of global warming. …

Potential Exit From The Eurozone: The Case Of Spain, Antonio Estella

Indiana Journal of Global Legal Studies

According to a recent opinion poll that covered seven members of the Eurozone, Spain would be the Member State of this group that is most in favor of leaving the euro. In this public opinion context, and above all since the summer of 2012, debate has been growing in this country about the prospects of its exiting the European Monetary Union. In this article I argue that there are good reasons for taking this debate seriously. Using Spain as a case study, I analyze what the determinants of this decision could be. In particular, I analyze the economic determinants that …

Editors' Note, Alfred C. Aman, Lydia Barbash-Riley

Indiana Journal of Global Legal Studies

No abstract provided.

The Financial Crisis, The European Union Institutional Order, And Constitutional Responsibility, Maastricht Treaty, Democracy Deficit, Lisbon Treaty,, Paul Craig

Indiana Journal of Global Legal Studies

The financial crisis sent shock waves throughout the European Union, the effects of which are still being felt. This article focuses on the institutional dimension of the crisis, and examines its impact on the relationship between the member states and the European Union, and between the organs of the European Union itself. The analysis is undertaken from a temporal perspective. It begins with consideration of the treaty provisions that shaped the balance of power within the European Union, and who bears the primary responsibility for this form of institutional ordering. It is argued that while there is a very considerable …

The Politics Of Fiscal Austerity: Democracies And Foresight, Paul L. Posner

Indiana Journal of Global Legal Studies

Daunting fiscal policy challenges face democratic systems throughout the world. Fiscal austerity in the wake of the Great Recession prompted nations in the Organisation for Economic Co-operation and Development (OECD) to institute major spending cuts and tax increases, increases that caused political and social fallout for years to come. While economies and budgets have improved in the past several years, significant fiscal adjustments lie ahead due to aging populations and the seemingly inexorable growth of health care costs. Faced with larger cohorts of retirees and fewer workers, nations will have to come to grips with a fiscal reality of higher …

No Simple Fix: Fiscal Rules And The Politics Of Austerity, Alasdair Roberts

Indiana Journal of Global Legal Studies

Fiscal rules were supposed to provide a simple remedy for out-ofcontrol government spending. They were predicated on a deep skepticism about the capacity of democratic systems to exercise fiscal self-control. After three decades of experimentation, it is evident that advocates of fiscal rules overestimated the capacity of legal instruments to impose discipline on democratic processes. Certainly, many advanced democracies have improved their fiscal performance-but fiscal rules have played a small role in this process. Experience suggests that advocates of fiscal rules drew the wrong lessons from the experience of the 1970s, and underestimated the capacity of democratic systems to respond …

Surviving The Crisis And Austerity: The Coping Strategies Of Portuguese Households, Catarina F. Frade, Lina Coelho

Indiana Journal of Global Legal Studies

In recent years, Southern European households have been facing acute economic hardship involving falling incomes, rising unemployment, devalued investment portfolios, and a growing burden of debt. This means most households have been forced to make unusual adjustments to their expenditure and living standards. However, Portuguese society has revealed the capacity to deal with austerity through the way households are resorting to self-mobilization and solidarity-based strategies. These adjustment strategies are inscribed in a cultural framework in which familial values, prevalent in Southern European societies, stand out in supporting a strong, operative welfare society. This feature is confirmed hereby through empirical research …

Why 'Fiscal Austerity'? A Review Of Recent Evidence On The Economic Effects Of Sovereign Debt, Catherine Bosner-Neal

Indiana Journal of Global Legal Studies

Concerns about the economic effect of high sovereign debt levels have motivated policy makers to constrain or reduce the growth of fiscal deficits, a practice commonly known now as "fiscal austerity." However, what do we know about the economic impacts of sovereign debt? This article provides an overview of some recent empirical economic research into this question. The article first discusses data and estimation challenges confronted by empirical research into the impact of sovereign debt on economic growth. The article then reviews several studies, which vary by country sample, time period studied, and estimation technique employed. The article also reviews …

Austerity, Debt Overhang, And The Design Of International Standards On Sovereign, Corporate, And Consumer Debt Restructuring, Susan Block-Lieb

Indiana Journal of Global Legal Studies

Following the Asian Financial Crisis, sovereign debt defaults prompted calls by the International Monetary Fund (IMF) for a statutory Sovereign Debt Restructuring Mechanism (SDRM). In promoting the SDRM, IMF leaders argued that countries' sovereign debt problems needed something like U.S. Chapter 11, which is to say that IMF leaders supported the SDRM proposal with reference to legal claims rather than relying on purely economic arguments about the welfare benefits of resolving debt overhang. Framing the debate in this way caught on, but by 2005 the IMF board of directors had rejected the SDRM proposal. The current Global Financial Crisis similarly …

The Best Interests Of A Trafficked Adolescent, Anah Hewetson Gouty

Indiana Journal of Global Legal Studies

For decades, the world has faced a tremendous obstacle in locating trafficking victims and their perpetrators. The United States has enacted the Trafficking Victims Protection Act (TVPA) and implemented a system of Trafficking in Persons Reports (TIPs) to track domestic progress. Nonetheless, even more challenging than addressing adult trafficking is conquering the rampant existence of child trafficking, which inherently has its own unique challenges. Child trafficking comes in many forms and affects different regions of the world in various ways. Misunderstanding precisely what constitutes trafficking is one of the obstacles to ridding the world of its existence. Moreover, the victimsadolescents- …