International Law Commons^™

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Exploring The Limits Of International Human Rights Law, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

The Limits of International Law stands on the shoulders of international relations realists who have traditionally argued that international law does not affect interstate relations and is therefore unworthy of much scholarly attention. International law scholars have in many ways set out to disprove the realist claim and explain the sources and effects of law as separate from politics: Why do states, which are driven primarily (according to realist theory) by a need to protect and expand security interests, insist on using international law at all? In Limits, Jack Goldsmith and Eric Posner engage both the international relations …

Medellin, Norm Portals, And The Horizontal Integration Of International Human Rights, Margaret E. Mcguinness

Faculty Publications

(Excerpt)

The dominant narrative of the Medellín v. Dretke line of cases challenging widespread noncompliance by the United States with the notification provisions of Article 36 of the Vienna Convention on Consular Relations (VCCR) tells a story of vertical treaty enforcement. The United States has agreed to be bound by a treaty that requires law enforcement authorities to inform foreign nationals arrested in this country of their right to notify their consulates and also requires authorities to permit the foreign consulate to assist its nationals. The United States has further agreed that the International Court of Justice (ICJ) has jurisdiction …

Multilateralism And War: A Taxonomy Of Institutional Functions, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

The dichotomy that emerged from the debate over the United States' invasion of Iraq, pitting multilateralism against unilateralism, has generally obscured more than it has enlightened about the law, rationales and effectiveness of multilateralism in war. This Article examines "security multilateralism" and concludes that, while the authority to address peace and security is, as a matter of international law, aggregated at the Security Council, the functions through which the United Nations works in support of that aggregated legal mandate are dispersed throughout the organization and affiliated bodies. Inquiries that seek to measure the effectiveness of U.N. security multilateralism against …

Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs

Faculty Publications

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of …

Livre Comércio E O Meio Ambiente, Darren Rosenblum

Faculty Publications

(Excerpt)

Primeiramente eu gostaria de agradecer a Cláudia Lima Marques por organizar esta interessante e empolgante conferência. Devo fazer um prefácio dos meus comentários dizendo que a minha bolsa se foca mais em leis de comércio internacional do que direito ambiental. Contudo é claro para mim que estas duas áreas estão substancialmente relacionadas, como ficará claro através da minha fala de hoje.

Esta apresentação se focará na questão do "livre comércio" nos Estados Unidos e o impacto doméstico no meio ambiente. Então, irei falar dos aspectos gerais do crescente sistema de comércio global. Finalmente irei fazer paralelos entre a economia …

International Courts And Tribunals, Nancy Amoury Combs, Carl Magnus Nesser, Ucheora O. Onwuamaegbu, Mark B. Rees, Jacqueline Weisman

Faculty Publications

This article reviews and summarizes significant developments in 2004 concerning international courts and tribunals, particularly events relating to tbe International Court of Justice, tbe United Nations Compensation Commission, the Iran-U.S. Claims Tribunal, and tbe Claims Resolution Tribunal. Significant developments relating to the International Criminal Court, the International Criminal Tribunals for the former Yugoslavia and for Rwanda, proposed additional ad hoc international criminal tribunals, the International Tribunal for the Law of tbe Sea, and tbe World Trade Organization dispute settlement system and other trade dispute settlement systems are detailed in other articles in this issue.

Moderating Politics In Post-Conflict States: An Examination Of Bosnia And Herzegovina, Angela M. Banks

Faculty Publications

The individuals who negotiated the peace agreement that ended the war in Bosnia and Herzegovina considered ethnicity to be the most salient division within Bosnian society. Consequently they organized Bosnia's political structure around ethnic representation. While it is doubtful that peace in Bosnia would have been possible without guarantees for ethnic-based political representation, such guarantees have proven insufficient for building a functioning, stable, and cohesive state. This article analyzes the role that Bosnia's political framework, which focuses exclusively on ethnic representation, has played in impeding the development of a significant cadre of moderate political actors and in hindering the success …

Sending The Right Signals: Using Rent-Seeking Theory To Analyze The Cuban Central Bank, Jose M. Gabilondo

Faculty Publications

No abstract provided.

A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Baidoe Ansah

Faculty Publications

This article's point of departure is the US's war against Iraq, which was begun in 2003 under various rationales - political, legal, and moral. As the legal and political justifications fell away or were cast into question, the moral became the primary reason for going to war. The justifications were, however, construed in religious language. For many, this "return" of religion within US foreign policy seemed particular to the Bush Administration. Others have argued that the turn to religion in time of war is nothing new. Nevertheless, the war and its justifications made me wonder about the nature of public …

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi

Faculty Publications

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …

European Union Legal Materials: An Infrequent User's Guide, Duncan E. Alford

Faculty Publications

No abstract provided.

Do Former Leaders Have An International Right To Act As Their Own Lawyer In War Crimes Trials?, Michael P. Scharf, Christopher Rassi

Faculty Publications

Picture what would happen if former Iraqi dictator Saddam Hussein sought to represent himself at his war crimes trial before the Iraqi Special Tribunal. While doing so, assume that the judge presiding over his case decided to follow the precedent of the Trial Chamber of the International

Criminal Tribunal for the former Yugoslavia (ICTY) that tried the case of Slobodan Milosevic, which held: "[U]nder customary international law, the defendant has a right to counsel, but he also has a right not to have counsel."

Errors And Missteps: Key Lessons The Iraqi Special Tribunal Can Learn From The Icty, Ictr, And Scsl, Michael P. Scharf, Ahran Kang

Faculty Publications

In a few months, the trial of Saddam Hussein and other former Iraqi regime leaders will begin before the Iraqi Special Tribunal (IST). The IST is a unique "internationalized-domestic tribunal" whose Statute and Rules of Procedure are modeled upon the UN-created Yugoslavia War Crimes Tribunal (ICTY), Rwanda Genocide Tribunal (ICTR), and the Special Court for Sierra Leone (SCSL), but whose judges are all Iraqis and whose courtroom is in Baghdad. There is much the IST can learn both from the successes and missteps of the ICTY, ICTR, and SCSL; many of the issues that will arise in the trials of …

Will Saddam Hussein Get A Fair Trial?, Michael P. Scharf

Faculty Publications

Debate between Dr. Curtis F. J. Doebbler and Professor Michael P. Scharf

The Internationalism Of Justice Harry Blackmun, Margaret E. Mcguinness

Faculty Publications

(Excerpt)

Throughout the symposium we have heard a host of adjectives to describe Justice Harry Blackmun and his jurisprudence, among them "willful," "liberal," "conservative," and "humble." Added to this list is what Professor Ruger calls "the ultimate compound taxonomy" for Justice Blackmun, a "'White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs.'" One adjective that is conspicuously missing is "internationalist," a term that describes an important, though less discussed, dimension of Justice Blackmun and his jurisprudence. Internationalism is, in part, reflected in Justice Blackmun's "preference change" or shift from "relatively conservative to relatively liberal." At the same time, internationalism …

Resolving Treaty Conflicts, Christopher J. Borgen

Faculty Publications

The viability of international law rests largely on the viability of treaties as a source of law. In the second half of the twentieth century, the international state system was supported by the development of treaties. States focused the majority of their regime-building efforts on three sets of concerns: restraining interstate conflict, securing human rights, and managing the economic system. States used treaties as the primary tool in the construction of these international institutions and in the codification of these norms. Moreover, treaties shift issues from the political arena into a juridical, rule-based, forum.

The very success of treaties as …

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

Profile: Judge George H. Aldrich, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Ending Impunity The Case For War Crimes Trials In Liberia, Charles Chernor Jalloh, Alhagi Marong

Faculty Publications

This paper argues that Liberia owes a duty under international law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the various warring parties in the course of 14 years of brutal conflict. The authors evaluate the options for prosecution, starting with the possible use of Liberian courts. They argue that even if willing, the national courts are unable to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in …

Genocide And The Eroticization Of Death: Law, Violence, And Moral Purity, Tawia Baidoe Ansah

Faculty Publications

In this article, I ask: What is the relationship between law and morality in response to mass violence and suffering abroad? How does law shape and determine our moral response to mass death and suffering? We repose in the law itself a desire to define the moral and the ethical parameters of legal-political action. Thus, when faced with mass violence and suffering abroad, law functions as a proxy for morality. The legal prohibition under the Genocide Convention defines morality, or cabins the variety of moral responses into a single and universally applicable ethical-legal norm of response to genocide. The moral …

Sexual Violence And International Criminal Law: An Analysis Of The Ad Hoc Tribunal's Jurisprudence & The International Criminal Court's Elements Of Crimes, Angela M. Banks

Faculty Publications

No abstract provided.

Book Review: Law And Colonial Cultures: Legal Regimes In World History, 1400-1900, Sam F. Halabi

Faculty Publications

Challenging scholars of both colonial history and globalization, Lauren Benton's Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems.

Using "Norms" To Change International Law: Un Human Rights Laws Sneaking In Through The Back Door, Troy A. Rule

Faculty Publications

For decades, multinational businesses have self-regulated their operations with respect to human rights, largely unfettered by international law. In recent years, however, human rights groups have advocated that the United Nations (“UN”) create clear legal obligations for multinationals respecting their human rights-related conduct. At least partly due to the substantial burden such obligations could place on international businesses, these efforts by human rights proponents have proven largely fruitless--until now.On August 13, 2003, the UN Sub-commission on the Promotion and Protection of Human Rights adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human …

International Courts And Tribunals, Nancy Amoury Combs, Ucheora O. Onwuamaegbu, Mark B. Rees, Jacqueline Weisman

Faculty Publications

This article reviews and summarizes significant developments in 2003 concerning international courts and tribunals, particularly events relating to the International Court of Justice, the United Nations Compensation Commission, the Iran-U.S. Claims Tribunal and the Claims Resolution Tribunal. Other articles in this issue detail significant developments relating to the International Criminal Court, the International Criminal Tribunals for Rwanda and the former Yugoslavia, the proposed additional ad hoc international criminal tribunals, the International Tribunal for the Law of the Sea, the World Trade Organization dispute settlement system, and other trade dispute settlement systems.

International Law And Religion In Latin America: The Beagle Channel Dispute, M C. Mirow

Faculty Publications

In 1978, an Argentine diplomat proposed a method of defusing a territorial dispute that very nearly sparked off a war between Argentina and Chile, It,was an offer calculated to be rejected by Chile, and yet Chile’s immediate response was “Agreed” - a response so unthinkable to Argentina that within hours its military Junta revoked the power of the Foreign Minister and the President to sign the agreement it had just proposed. In December 1978, the countries were quickly moving towards a war that, if waged, would most likely have engulfed much of Latin America. The Vatican, however, intervened and brought …

Foreword: Terrorism On Trial, Michael P. Scharf, Amy E. Miller

Faculty Publications

While the Lockerbie approach is currently out of vogue, are there nonetheless lessons from Lockerbie that policy makers can draw on in determining how to best use law as a weapon against terrorism in the future? To explore this important and timely question, the Frederick K. Cox International Law Center assembled a group of high level United Nations officers, former U.S. government officials, noted prosecutors and defense counsel, and prominent journalists and scholars for a day-long symposium at Case Western Reserve University School of Law on October 8, 2004, entitled "Terrorism on Trial." The conference, which was cosponsored by the …

The World Trade Organization And Participatory Democracy: The Historical Evidence, Peter M. Gerhart

Faculty Publications

No abstract provided.

Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects, Michael P. Scharf

Faculty Publications

This article examines the proposal to define terrorism as the peacetime equivalent of war crimes in the context of answering two questions: First, why might it be useful to define terrorism by reference to the existing laws of war? And second, what are the potential negative consequences which might counsel against such an approach?

Rulemaking From The Bench: A Place For Minimalism At The Icty, Megan A. Fairlie

Faculty Publications

This article explores the ability of the International Criminal Tribunal for the former Yugoslavia to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the Tribunal’s judiciary, the Court should simply decide the case before it rather that create broad and binding rules. …