International Law Commons^™

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

Putting The Illegal Wildlife Trade In The Crosshairs: How The Global Conservation Crisis Demonstrates The Need For Lacey Act Enforcement Of Foreign Laws, Jonathan Gonzalez

William & Mary Environmental Law and Policy Review

No abstract provided.

The Logic Of Contract In The World Of Investment Treaties, Julian Arato

William & Mary Law Review

Investment treaties protect foreign investors who contract with sovereign states. It remains unclear, however, whether parties are free to contract around these treaty rules, or whether treaty provisions should be understood as mandatory terms that constrain party choice. While investment treaties clearly apply to contracts in some way, they are silent as to how these instruments ultimately interact. Moreover, arbitral jurisprudence has varied wildly on this point, creating significant problems of certainty, efficiency, and fairness—for states and foreign investors alike.

This Article reappraises the treaty/contract issue from the ex ante perspective of contracting states and foreign investors. I advance three …

The Common Law Of War, Jens David Ohlin

William & Mary Law Review

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the “common law of war” referred to a branch …

Putting The Spotlight On “The Terminator”: How The Icc Prosecution Of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, Sarah T. Deuitch

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Customary Constraints On The Use Of Force: Article 51 With An American Accent, William C. Banks, Evan J. Criddle

Faculty Publications

This article, prepared for the symposium on ‘The Future of Restrictivist Scholarship on the Use of Force’, examines the current trajectory of restrictivist scholarship in the United States. In contrast to their counterparts in continental Europe, American restrictivists tend to devote less energy to defending narrow constructions of theUNCharter. Instead, they generally focus on legal constraints outside the Charter’s text, including customary norms and general principles of law such as necessity, proportionality, deliberative rationality, and robust evidentiary burdens. The article considers how these features of the American restrictivist tradition reflect distinctive characteristics of American legal culture, and it explores the …

Liability And Compensation For Damage Resulting From Co2 Storage Sites, Michael Faure

William & Mary Environmental Law and Policy Review

This Article follows the economic analysis of law as the methodology for analyzing appropriate liability and compensation mechanisms with respect to damages resulting from CO2 storage sites. There are various reasons for employing this approach. One reason is that many have already discussed the design of a liability and compensation scheme for CCS-related damages. But these earlier studies have not yet approached the issue from the angle of an economic analysis of law. The advantage of thismethodology is that attention is paid to the way in which various liability and compensation schemes affect the incentives for prevention of the various …

Seeking Inconsistency: Advancing Pluralism In International Criminal Sentencing, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Brigham-Kanner Property Rights Conference Journal, Volume 4, William & Mary Law School

Brigham-Kanner Property Rights Journal

Defining the Reach of Property

October 30-31, 2014

Panel 1: The Role of the Advocate in Defining Property

Panel 3: Balancing Private Property and Community Rights

Panel 4: Property Rights in Developing and Transitional Countries

Panel 3 Q&A: Discussion on Balancing Private Property and Community Rights

Three Grotian Theories Of Humanitarian Intervention, Evan J. Criddle

Faculty Publications

This Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their …

Book Review Of Fraudulent Evidence Before Public International Tribunals: The Dirty Stories Of International Law, Nancy Amoury Combs

Faculty Publications

No abstract provided.

U.S. V. Esquenazi: U.S. Appellate Court Defines “Instrumentality” Under The Foreign Corrupt Practices Act For The First Time, Jon Jordan

William & Mary Business Law Review

No abstract provided.

Maturing Justice: Integrating The Convention On The Rights Of The Child Into The Judgments And Processes Of The International Criminal Court, Linda A. Malone

Faculty Publications

No abstract provided.

“First, Do No Harm”: Legal Guidelines For Health Programmes Affecting Adolescents Aged 10–17 Who Sell Sex Or Inject Drugs, Brendan M. Conner

Faculty Publications

No abstract provided.

The Hedge Fund Regulation Dilemma: Direct Vs. Indirect Regulation, Hossein Nabilou, Alessio M. Pacces

William & Mary Business Law Review

This Article studies regulatory strategies to address the potential systemic risk of hedge fund operation in financial markets. Due to the implications of the choice of regulatory strategies and instruments in terms of mitigating systemic risk, the Article focuses on one critical aspect of hedge fund regulation, namely the choice between direct regulation and indirect regulation. This Article defines the distinction between direct and indirect regulation, maps this distinction’s implications in terms of regulatory techniques and instruments, and analyzes the arguments for and against direct and indirect regulation of hedge funds. This Article argues that the indirect regulation of hedge …

Standing For Human Rights Abroad, Evan J. Criddle

Faculty Publications

When may states impose coercive measures such as asset freezes, trade embargos, and investment restrictions to protect the human rights of foreign nationals abroad? Drawing inspiration from Hugo Grotius’s guardianship account of humanitarian intervention, this Article offers a new theory of states’ standing to enforce human rights abroad: under some circumstances, international law authorizes states to impose countermeasures as fiduciary representatives, asserting the human rights of oppressed foreign peoples for the benefit of those peoples. The fiduciary theory explains why all states may use countermeasures to vindicate the human rights of foreign nationals abroad despite the fact that they do …

From Prosecutorial To Reparatory: A Valuable Post-Conflict Change Of Focus, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Suicide In The Name Of Honor: Why And How U.S. Asylum Law Should Be Modified To Allow Greater Acceptance Of Honor-Violence Victims To Prevent “Honor Suicides”, Ayla M. Kremen

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Orchestrating Under Uncertainty: The Organization Of Sustainable Development At The United Nations, Philip A. Sandick

William & Mary Environmental Law and Policy Review

No abstract provided.

Rethinking Ddt: The Misguided Goals Of The Stockholm Convention On Persistent Organic Pollutants And A Plan To Fight Malaria Worldwide, Eva Zelson

William & Mary Environmental Law and Policy Review

No abstract provided.

Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle

Faculty Publications

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximize human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals …

Determining Extraterritoriality, Franklin A. Gevurtz

William & Mary Law Review

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality—which the United States Supreme Court has increasingly invoked in recent years—calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside the United States …

Incapacitating The State, Daryl J. Levinson

William & Mary Law Review

No abstract provided.

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …

International Law And Dworkin's Legal Monism, Michael S. Green

Popular Media

No abstract provided.

Section 2: Congress & The Obama White House, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Enforcement Activism Of The Eu’S Renewable Energy Directive During The Global Financial Crisis, Jon Truby

William & Mary Environmental Law and Policy Review

No abstract provided.

Gaia’S Navy: The Sea Shepherd Conservation Society’S Battle To Stay Afloat And International Law, Gerry Nagtzaam

William & Mary Environmental Law and Policy Review

This Article critically examines the Sea Shepherd Conservation Society and its self-appointed role to protect oceanic life. In Part I, the Article examines the history of this radical environmental group, the role performed by its charismatic leader, Paul Watson, its organizational structure, its strategies and tactics, its governing philosophy, and its attitudes to violence. Part II provides a history of the various direct actions carried out by the group; it examines the organization’s ongoing confrontations with the Japanese whaling fleet, documents the current legal travails the group and its leader are experiencing, and asks whether its methods are counterproductive to …

Responsibility For Regime Change, Jay Butler

Faculty Publications

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of the targeted territory is outmoded. Based on a careful examination of subsequent practice of the parties to the conventions, this Article asserts a new interpretation of these treaties and argues that regime changers are now under positive obligations in the postwar period and beyond.

Through their conduct and evaluation of modern regime-change missions, states, both individually and acting collectively through international organizations, …

Rio + 20: What Difference Has Two Decades Made To State Practice In The Regulation Of Invasive Alien Species?, Sophie Riley

William & Mary Environmental Law and Policy Review

This Article collects and analyzes information available from the Convention on Biological Diversity National Reports to consider what members themselves have identified as their regulatory strengths and weaknesses. Against this backdrop, the Article evaluates the effectiveness of international environmental law in guiding domestic regimes, highlighting that where international law is imprecise or inconsistent, it can hinder the development of successful State practice.