International Law Commons^™

Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh

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This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence "to prosecute those who bear the greatest responsibility" for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

Resilience In Transboundary Water Governance: The Okavango River Basin, Barbara Cosens

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When the availability of a vital resource varies between times of overabundance and extreme scarcity, management regimes must manifest flexibility and authority to adapt while maintaining legitimacy. Unfortunately, the need for adaptability often conflicts with the desire for certainty in legal and regulatory regimes, and laws that fail to account for variability often result in conflict when the inevitable disturbance occurs. Additional keys to resilience are collaboration among physical scientists, political actors, local leaders, and other stakeholders, and, when the commons is shared among sovereign states, collaboration between and among institutions with authority to act at different scales or with …

Assessing Legal Advocacy To Advance Roma Health In Macedonia, Romania, And Serbia, Tamar Ezer

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Across Europe, Roma suffer extreme marginalisation, negatively impacting their health. Many cannot access healthcare at all. For others, the health system is a hostile place. At the same time, good legal frameworks are in place to protect health rights, and there is increasing recognition of systemic violations experienced by Roma. Essential to building on this momentum and closing the gap between standards and implementation is Roma ability to conduct legal advocacy. Since 2010, the Open Society Foundations has supported Roma engagement in Macedonia, Romania and Serbia in the following advocacy strategies: i) legal empowerment, ii) documentation and advocacy, iii) media …

Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh

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This article examines the right to self-representation in international criminal law, and the common challenges posed for judges effectuating that right in international criminal courts. Using a comparative law approach, the paper demonstrates how the interpretation of that right initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international law, the author contends that this right seems better in theory than in practice. Indeed, since no self-representing …

Treaty Interpretation And Constitutional Transformation: Informal Change In International Organizations., Julian Arato

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Like all constituted bodies of government, international organizations change over time-sometimes in profound and unexpected ways. Besides developing through the obvious mechanism of formal amendment by the constituent member states, these governance bodies can and do undergo a more autonomous kind of constitutional development-what might be called informal constitutional change or transformation. This type of quiet evolution may occur on different levels-including the reordering of the organization's internal architecture in terms of the relative competences of its various organs, as well as the development of the powers of the organization as a whole vis-a­vis the states parties. Unlike formal amendment, …

Persuasion Treaties, Melissa J. Durkee

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All treaties, akin to contracts between nations, formalize the promises of their parties. Yet the contents of those promises differ, with important consequences.

One particular difference is underappreciated and divides treaties into two fundamentally different categories. In one category of treaty, nations agree that they themselves will act, or refrain from acting, in certain ways. For convenience, I call these “resolution” treaties because they demand that states resolve to act. In the second category, nations make promises they can only keep if nonstate third parties also act or refrain from acting. These are what I term “persuasion” treaties because they …

China's Golden Tax Project: A Technological Strategy For Reducing Vat Fraud, Jane K. Winn, Angela Zhang

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Unlike the United States, where sales tax is a common form of indirect tax, almost all countries around the world-both developed and developing alike-now impose a value added tax (VAT). In the early 1990s, as part of its comprehensive economic reform program initiated over 30 years ago, the People's Republic of China implemented a VAT. Monitoring compliance with VAT is a serious challenge in developing countries, and China is no exception in that regard.

To address this challenge, China launched a major fiscal reform project called the "Golden Tax Project" (GTP) which mandates the use of specific sophisticated information technologies …

Introduction To Mobile Money In Developing Countries: Financial Inclusion And Financial Integrity Conference Special Issue, Jane K. Winn, Louis De Koker

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This special issue of the Washington Journal of Law, Technology & Arts contains papers contributed to a conference held at the University of Washington School of Law on April 20, 2012. The conference, entitled Mobile Money in Developing Countries: Financial Inclusion and Financial Integrity, was organized by the University of Washington School of Law with the support of the Linden Rhoads Dean’s Innovation Fund, Deakin University School of Law, Australia, and the United Nations Commission on International Trade Law (UNCITRAL).

The conference provided an early opportunity to analyze the impact of the newly-released revised 2012 Financial Action Task Force (FATF) …

Ethics And International Law: Integrating The Global Justice Project(S), Steven R. Ratner

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Academic discourse on global justice is at an all-time high. Within ethics and international law, scholars are undertaking new inquiries into age-old questions of building a just world order. Ethics – political and moral philosophy – poses fundamental questions about responsibilities at the global level and produces a tightly reasoned set of frameworks regarding world order. International law, with its focus on legal norms and institutional arrangements, provides a path, as well as illuminates the obstacles, to implementing theories of the right or of the good. Yet despite the complementarity of these two projects, neither is drawing what it should …

Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson

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This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.

Custom, General Principles And The Great Architect Cassese, Mary Fan

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Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must study the …

Value Divergence In Global Intellectual Property Law, J. Janewa Osei-Tutu

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It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …

Accountability And The Sri Lankan Civil War, Steven R. Ratner

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Sri Lanka's civil war came to a bloody end in May 2009, with the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by Sri Lanka's armed forces on a small strip of land in the island's northeast. The conflict, the product of long-standing tensions between Sri Lanka's majority Sinhalese and minority Tamils over the latter's rights and place in society, had begun in the mid-1980s and ebbed and flowed for some twenty-five years, leading to seventy to eighty thousand deaths on both sides. Government repression of Tamil aspirations was matched with ruthless LTTE tactics, including suicide bombings of civilian …

Too Rough A Justice: The Ethiopia-Eritrea Claims Commission And Civil Liability For Claims For Rape Under International Law, Ryan S. Lincoln

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The developments in international law prohibiting rape during armed conflict have grown at a rapid pace in recent decades. Whereas rape had long been considered an inevitable by-product of armed conflict, evolution in international humanitarian law (IHL) has relegated this conception mostly to the past. The work of international criminal tribunals has been at the forefront of this change, developing the specific elements of the international crime of rape, and helping to change the perception of rape in international law violations of IHL, however also give rise to civil liability Despite the advances with respect to rape made in the …

Africa And The International Criminal Court, Charles C. Jalloh

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A Functional Approach To Targeting And Detention, Monica Hakimi

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The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …

Eric Stein (1913-2011), Daniel Halberstam, Steven Ratner, Mathias Reimann

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On July 28,2011, Eric Stein, pillar of international law, pioneer of the legal study of European integration, and master of comparative law, passed away in Ann Arbor, Michigan. He was ninety-eight years old. He joined this Journal's Board of Editors in 1963, serving as a regular member until 1978, and thereafter as an honorary editor. Stein was the last of that great generation of European-educated jurists who fled Nazism and became leading figures in comparative and international law in the United States.

After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein

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How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. …

Rule Of Law For Whom? Strengthening Rule Of Law As A Solution To Sexual Violence In The Democratic Republic Of Congo, Ryan S. Lincoln

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This article suggests that programs designed to strengthen the rule of law in general are unlikely to be effective against the widespread problem of sexual violence in the Democratic Republic of the Congo. I argue that while weak rule of law perpetuates sexual violence, only rule of law programs designed specifically with respect to the needs, risks, and cultural norms pertaining to Congolese women can help curb this problem. The article begins with a brief history of conflict in the Great Lakes region of Africa to provide context for a discussion of the scope of sexual violence in the eastern …

Contextualizing Sexual Violence Committed During The War On Terror: A Historical Overview Of International Accountability, Ryan S. Lincoln

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When Corporations Translate Treaties, Caroline Bradley

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Special Issue On International Criminal Law: Editorial, Charles C. Jalloh

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Consultation And Legitimacy In Transnational Standard-Setting, Caroline Bradley

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Assessing The African Union Concerns About Article 16 Of The Rome Statute Of The International Criminal Court, Charles C. Jalloh, Dapo Akande, Max Du Plessi

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This article assesses the African Union's (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU's repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC's failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

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This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.

Introduction To Special Symposium Feature: Successes And Failures In International Human Trafficking Law, Bridgette A. Carr

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The Essays in this issue of the Michigan Journal of International Law showcase the results of an important and historic symposium held at the University of Michigan Law School in February 2011. Acknowledging the ten-year anniversary of both the international Protocol to Prevent, Suppress, and Punish Trafficking in Persons (Trafficking Protocol), and the Trafficking Victims Protection Act (TVPA) in the United States, the conference brought together an extraordinary group of legal scholars, government officials, and practitioners to examine the successes and failures in international human trafficking law. The need to evaluate both the successes and failures in antitrafficking law is …

How Piracy Has Shaped The Relationship Between American Law And International Law, Joel H. Samuels

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To Proceed With Caution? Aiding And Abetting Liability Under The Alien Tort Statute, Ryan S. Lincoln

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Transboundary River Governance In The Face Of Uncertainty: Resilience Theory And The Columbia River Treaty, Barbara Cosens

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The Human Rights Of Non-Citizens. By David Weissbrodt. (Book Review), Caroline Bettinger-López, Bassina Farbenblum

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No abstract provided.