International Law Commons^™

Modernity And The Law: A Late Twentieth Century View, Robert P. Burns

Notre Dame Journal of International & Comparative Law

This Article explores Roberto Unger’s understanding of the specific significance that modernity has for law. It provides an account of the distinctions among customary law, bureaucratic law, the modern liberal rule of law ideal, and the unraveling of the rule of law in postliberal societies. It compares his views with those of other major theorists of modernity and with legal theorists. Finally, it discusses his speculations about then future developments and the relationship between central institutional and philosophical issues.

A Second Chance On Earth: Understanding The Selection Process Of The Judges Of The Colombian Special Jurisdiction For Peace, Santiago Pardo Rodríguez

Notre Dame Journal of International & Comparative Law

For over fifty years, Colombia has faced a bloody and cruel civil conflict. Some of the most conservative studies have estimated that the total death toll of the war may be 220,000. The weight of this number heavily lies on the civilian population. It is estimated that around 81% of those killed in the conflict are non-combatant civilians. This represents, according to the data collected by the government’s Center for National Memory, around 180,000 civilian victims. In other words, as a civilian, the probability of being a victim in the Colombian conflict was nine times higher than a military or …

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Challenges To, And Manifesto For, Fact-Finding In A Time Of Disinformation, Agnés Callamard

Notre Dame Journal of International & Comparative Law

Liberal and democratic values are in jeopardy, as is the rules-based international system and the norms it embodies, both being subject to multiple attacks that, once taboo, now, quite to the contrary, are both claimed and carried out with pride. This Article assesses the current human rights environment from the perspective of a United Nations factfinder. The impact of technological advancement on the human rights framework and the process of evidence-gathering is discussed, particularly regarding the spread of misinformation. The Article concludes with a manifesto for fact-finding as a pathway to knowledge and justice.

The Rise Of Hybrid Warfare, Waseem Ahmad Qureshi

Notre Dame Journal of International & Comparative Law

In the twenty-first century, wars are not declared or waged conventionally; instead, conflicts are instigated by clandestine agents using cyber tools, information operations, NGOs, nonstate actors, economic tools, propaganda, ambiguity, terrorism, and insurgency or rebel movements. In hybrid warfare, the lines between peacetime and wartime and between combatants and civilians are blurred. Further, systemic aggression is imposed on a targeted state using gray zones, nonlinear warfare, unrestricted warfare, unconventional warfare, and color revolutions to avoid attribution and possible retribution for the aggression. Hybrid warfare employs a wide array of power tools, ranging from political, economic, military, and civil to informational. …

Legal System Network Effects And Global Legal Development, David C. Donald

Notre Dame Journal of International & Comparative Law

Law originates in local environments, yet can be transmitted globally or over time to new contexts and foreign or future users. At its origin, law arises in response to social needs, but once formalized it takes on a semantic life of its own in a network of users. A rule created in response to a random New York plaintiff could—with sufficient popularity—end up as the standard norm applied globally, regardless of its underlying suitability for specific local needs.

To better understand the consequence of these legal system network effects on global legal development, this Article applies Klausner’s network theory of …

Letter From The Editor, Brad A. Rocheville

Notre Dame Journal of International & Comparative Law

No abstract provided.

International "Constitutions" And Comparative Constitutional Law, Michael Da Silva

Notre Dame Journal of International & Comparative Law

Many legal scholars and jurists see a particular document or a collection of documents as a means of constitutionalizing international law. The Charter of the United Nations is a prime example. Based on this, comparisons are made between international law and domestic constitutional orders, and these comparisons are sometimes used to decide cases. However, there is reason to question whether the international legal order has enough features of domestic constitutional orders to justify judicial comparison between the international legal order and domestic constitutional orders. The ongoing constitutionalization process is unlikely to produce an international legal order with sufficiently similar features …

Note: Building Blocks Of A Fundamental Right: A Thought Experiment On The Constitutional Right To A Livable Climate, Melanie Hess

Notre Dame Journal on Emerging Technologies

When civil rights lawyers sought to overturn Plessy v. Ferguson in the years leading up to Brown v. Board of Education, they faced a history of institutionalized segregation and inequality, constitutional acceptance of the “separate but equal” doctrine, and sharp social divisions on the issue. Other landmark cases of rights recognition, such as Obergefell v. Hodges and Roe v. Wade, similarly built upon years of evolution in law, precedent, and social opinion that made them inconceivable before their time. Early versions of the litigation strategies envisioning these judgments might have been tentative and vague, lacking in factual, legal, …

Concluding Rejoinder: The Art Of International Law And Altruism Of International Lawyers, Mary Ellen O'Connell

NDLS in the News

In the introductory essay, I sought to apply The Art of Law in the International Community as a response not only to military force and other ills but to the COVID-19 pandemic. Four colleagues have contributed on how they believe the book works and could work better. They have done so at a time of extraordinary challenge and in a spirit of generosity toward the goal we all seek, the flourishing of the created world.

A Call For An International Governance Framework For Human Germline Gene Editing, Melanie Hess

Notre Dame Law Review

This Note will argue that human germline editing ought to be subject to a worldwide regulatory initiative contained in an international governance framework. It will touch on the justifications for the call for this agreed upon framework and discuss the current state of regulation of human germline editing, including norms and principles promulgated by international instruments and important statements on the topic. Finally, it will propose suggestions for the substance that an international governance framework should include and acknowledge the challenges in implementing such a framework.

Letter From The Editor, Brad A. Rocheville

Notre Dame Journal of International & Comparative Law

No abstract provided.

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Notre Dame Journal of International & Comparative Law

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

Collective Countermeasures In Cyberspace, Jeff Kosseff

Notre Dame Journal of International & Comparative Law

The president of Estonia, Kersti Kaljulaid, has supported the use of collective countermeasures in response to cyberspace crimes. Collective countermeasures would allow an uninjured state to provide guidance or carry out countermeasures on behalf of another state. This Article advocates for collective countermeasures in cyberspace so long as the operations are carefully executed and subject to the same restrictions as individual countermeasures. This Article further finds for the following in favor of limited forms of collective countermeasures: (1) the highly interconnected nature of threats in cyberspace; (2) states with more sophisticated cyber capabilities can leverage for comparative advantages; (3) states …

An Extraterritorial Human Right To Cybersecurity, Ido Kilovaty

Notre Dame Journal of International & Comparative Law

Cybersecurity breaches have affected consumers and the landscape of politics globally. Legal developments have been reactive and incomprehensive. The fatal flaws of international law make it an ill-suited solution to these concerns because international law binds state actors and does not give individuals rights. International human rights law, however, provides the best solution because it does provide harmed individuals with rights and mechanisms to seek recourse. Cybersecurity relates to several key areas of human rights law and, therefore, its regulation is well suited to the existing international human rights regulatory scheme. This Article explores the possibility of using international human …

It’S Time To Turn On The Lights: The Necessary Steps For The Rural Electrification Of Sub-Saharan Africa, John Morris

Notre Dame Journal of International & Comparative Law

While each country in Africa is in a different state of electrification, this Note focuses on the nations of Tanzania and Kenya. Comparatively, in the First World, power generation was a gradual and non-linear process that was slow to perfect. This Note argues that the lack of rural electrification in sub-Saharan Africa will continue without a confluence of investment, support, and regulation. Renewable energy sources (such as solar, wind, and geothermal) seem promising, but none are without their own limitations. The use of mini-grids will play an important role in electricity access for sub-Saharan Africa. This Note advocates that the …

Domestic Law Responses To Transnational Cyberattacks And Other Online Harms: Internet Dreams Turned To Internet Nightmares And Back Again, Clive Walker, Ummi Hani Binti Masood

Notre Dame Journal of International & Comparative Law

Since its utilization has become widespread, the potential of the Internet has often been overshadowed by the harms it’s capable of bringing upon society. Regulation has not yet properly addressed the harms presented to individuals’ cybersecurity and the U.K. has focused and set objectives at a national security level, while ignoring the effects of attacks on individual citizens. This Article considers whether it is possible to create a domestic legal response to transnational cyberattacks and the appropriateness of law to address the threats, as they exist. The law must be efficient, effective, and fair, which are all aims it may …

Neutrality In The Modern World: Internet Regulation's Impact On Economics And Society, Sarah Deagostino

Notre Dame Journal of International & Comparative Law

In the United States, net neutrality laws prevented service providers from restricting open access to the Internet. In 2017, these laws were repealed and consumers became concerned that Internet providers would take advantage of them through blocking, throttling, and paid prioritization. The trend in the United States, from the rise of the telephone and wire transfer to the rise of the Internet, was toward facilitating access to the Internet for all citizens. This is intended to result in economic advantages for the country, and aid in the development of broadband Internet. Open access to the Internet was regarded as providing …

The Killing Of Soleimani And International Law, Mary Ellen O'Connell

NDLS in the News

On 3 January, missiles launched from a United States Reaper drone struck two vehicles leaving Baghdad’s international airport. At least seven people died in the attack, including the commander of Iran’s Quds force, General Qassem Soleimani. On 5 January, Iranian Major General Hossein Dehghan, reported to be the military adviser to Iran’s Supreme Leader, gave an exclusive interview to CNN and said Iran “would retaliate directly against US ‘military sites.’”

The Complexities Of Democracy, Development, And Human Rights In China's Belt And Road Initiative, Diane Desierto

Journal Articles

China's Belt and Road Initiative (BRI)-a dense network of China-funded multi-year infrastructure projects in over 65 countries from the Western Pacific to the Baltic Sea, collectively aiming to establish China's strategic "Maritime Belt" and "Silk Road" connectivity using an estimated range of USD$1 Trillion to USD$8 Trillion--is as unprecedented phenomenon in sovereign project financing and bilateral investment lending, since the United States' grant of USD $800 Billion for the Marshall Plan was for Europe's post World War II reconstruction. The scale, scope, and terms of BRI projects remain shrouded in relative opacity, with China as of this writing only incrementally …

Promoting International Procedural Norms In Competition Law Enforcement, Roger P. Alford

Journal Articles

It is a pleasure to participate in the 2019 Kansas Law Review Symposium, "Antitrust Law and Policy in the 21st Century." Antitrust is once again a hot topic and discussion about how to effectively enforce the laws in a digital age is generating widespread attention. My focus will be on the topic of promoting fundamental due process in competition law investigation and enforcement. With competition authorities around the globe becoming increasingly more active, it is one of the most important topics on the antitrust agenda. And this year, we witnessed a watershed moment with the adoption of a new framework …

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

The International Law Origins Of American Federalism, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Courts and commentators have long struggled to reconcile prominent federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in the Constitution's text and are the product of improper judicial activism. This Article suggests a way to reconcile federalism and textualism by looking to a surprising source-international law. The Constitution contains numerous references to "States," and the …

China's Maritime Law Enforcement Activities In The South China Sea, Diane Desierto

Journal Articles

China, one of the territorial and maritime claimants of the South China Sea, declared in April 2020 that it had created two new administrative districts in the South China Sea:

Xisha district, covering the Paracel Islands and Macclesfield Bank, and Nansha district covering the Spartly [sic] Islands .... The new administrative districts are to be under the authority of the local government in Sansha, a city located on Woody Island which is administratively part of Hainan province. The Xisha district will be based in Sansha while the Nansha district will operate from Fiery Cross Reef in the Spratlys.

Sansha City …

The United States, The International Criminal Court, And The Situation In Afghanistan, Sara L. Ochs

Notre Dame Law Review Reflection

The United States has always had a very complicated and tense relationship with the International Criminal Court (ICC) and with international criminal law generally. Yet, under the Trump administration, the U.S.–ICC relationship has deteriorated to an unprecedented level. Within the last few years, the U.S. government has launched a full-scale attack on the ICC—denouncing its legitimacy, authority, and achievements, blocking investigations, and loudly withdrawing all once-existing support for the court.

These hostilities bubbled over following the November 2017 request by the ICC Chief Prosecutor, Fatou Bensouda, for the court to open an investigation into alleged war crimes and crimes against …

Drone Attacks On Saudi Aramco Oil Installations, Mary Ellen O'Connell

NDLS in the News

Half of Saudi Arabia’s oil production has been stopped by air attacks involving drones and possibly cruise missiles on 14 September 2019. Houthi rebels in Yemen have claimed responsibility. United States Secretary of State Mike Pompeo has asserted by tweet that Iran is responsible because there is “no evidence the attacks came from Yemen” and Iran is behind “100” attacks on Saudi Arabia. The U.S. has since released satellite imagery showing immense smoke clouds. Unnamed American officials say 19 sites were struck. According to the BBC, on 16 September, ‘UK, Foreign Secretary Dominic Raab said it was not …

The Necessity Of Human Rights Legal Protections In Mutual Legal Assistance Treaty Reform, Christine Galvagna

Notre Dame Journal of International & Comparative Law

Mutual legal assistance treaty (MLAT) reform is a transnational legal movement aimed at facilitating more rapid law enforcement access to cross-border data, while also preventing violations of state sovereignty through the exercise of extraterritorial jurisdiction over data. Efforts primarily focus on the United States (U.S.) mutual legal assistance (MLA) process, as it is exceedingly slow and convoluted, but also unavoidable, given that most major tech companies have their bases in the U.S. Recently proposed or enacted legal instruments include the U.S. CLOUD Act, the European Union’s (EU) e-Evidence proposal, Council of Europe’s forthcoming Additional Protocol to the Convention on Cybercrime, …

Family Leave: Comparing The United States' Family And Medical Leave Act With Sweden's Parental Leave Policy, Mallory Campbell

Notre Dame Journal of International & Comparative Law

This Article focuses on parental leave in the United States, which mostly relies on the Family and Medical Leave Act (FMLA), and compares it to parental leave policies in other countries, particularly Sweden. While the FMLA has many drawbacks, Sweden and other countries have robust and progressive leave plans that the United States should look to in amending the FMLA or adopting a new parental leave policy.

Letter From The Editor, Lara Thiele

Notre Dame Journal of International & Comparative Law

No abstract provided.