International Law Commons^™

The International Criminal Court's Jurisdiction Over The Nationals Of Non - Party States: A Critique Of The U.S. Position, Michael P. Scharf

Faculty Publications

This article analyzes the validity of the U.S. argument against the ICC's jurisdiction over the nationals of non-party states in the context of historic precedent and the principles underlying international criminal jurisdiction, and demonstrates that it is not the jurisdiction of the ICC over the nationals of non-party states, but the U.S. government's legal argument, which rests on shaky foundations. The article also highlights the potential unintended repercussions of the current U.S. legal position. This analysis could have a substantial bearing on the approach the United States takes to the Rome Statute, for it indicates that the United States actually …

The Icc's Jurisdiction Over The Nationals Of Non-Party States: A Critique Of The U.S. Position, Michael P. Scharf

Faculty Publications

This article analyzes the validity of the U.S. argument against the ICC's jurisdiction over the nationals of non-party states in the context of historic precedent and the principles underlying international criminal jurisdiction, and demonstrates that it is not the jurisdiction of the ICC over the nationals of non- party states, but the U.S. government's legal argument, which rests on shaky foundations. The article also highlights the potential unintended repercussions of the current U.S. legal position. This analysis could have a substantial bearing on the approach the United States takes to the Rome Statute, for it indicates that the United States …

Law And International Relations: Introductory Remarks And Panel Discussion, Julian Knowles, Christopher J. Borgen, Arthur Rovine, William Paul, Carlos Manuel Vazquez

Faculty Publications

This panel was cosponsored by the American Society of International Law (ASIL). The ASIL was founded in 1906 by Secretary of State Elihu Root to inform and engage the public on issues of international law. It is a nonprofit, nonpartisan membership association and research institute dedicated to providing both information about international law in all its forms and a forum for debate and discussion. This panel was one such forum. It was organized under the auspices of the ASIL Judicial Outreach Program, chaired by Justice Sandra Day O'Connor. The Judicial Outreach Program provides information resources for federal and state judiciaries. …

Can International Law Help? An Analysis Of The Colombian Peace Process, Jorge L. Esquirol

Faculty Publications

No abstract provided.

Book Review Of The Riddle Of All Constitutions: International Law, Democracy, And The Critique Of Ideology, Evan J. Criddle

Faculty Publications

No abstract provided.

The International Judicial Dialogue: When Domestic Constitutional Courts Join The Conversation, Tara Leigh Grove

Faculty Publications

No abstract provided.

International Criminal Jurisprudence Comes Of Age: The Substance And Procedure Of An Emerging Discipline, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Carter, Reagan, And Khomeini: Presidential Transitions And International Law, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Book Review Of Kosovo: How Myths And Truths Started A War, Linda A. Malone

Faculty Publications

No abstract provided.

Reflections: Beyond Compliance Theory-Trips As A Substantive Issue, Peter M. Gerhart

Faculty Publications

Introduction to symposium on TRIPS as a Substantive Issue, Cleveland, Ohio, 2000.

The Tools For Enforcing International Criminal Justice In The New Millennium: Lessons From The Yugoslavia Tribunal, Michael P. Scharf

Faculty Publications

It is one thing to create an international institution devoted to enforcing international justice; it is quite another to make international justice work. Unlike the Nuremberg Tribunal, whose orders were implemented by the Allied occupation forces, the ICC will have no constabulary. In the absence of a direct enforcement mechanism, the ICC will have to rely on state cooperation and indirect means of inducing compliance with its arrest orders and requests for judicial cooperation.

The range of enforcement measures potentially available to the ICC include: (1) condemnation of non-cooperation by the Assembly of State Parties or the U.N. Security Council; …

International Institutions, Michael P. Scharf, John Knox, Michelle Mulvena, Chris Potter, Tracy Sund

Faculty Publications

No abstract provided.

More Sorry Than Safe: Assessing The Precautionary Principle And The Proposed International Biosafety Protocol, Jonathan H. Adler

Faculty Publications

Part I of this paper provides a brief overview of the development of biotechnology, its regulation and its use, with a particular emphasis on agricultural biotechnology. Part II outlines the United Nations Convention on Biological Diversity, which provides an international legal framework for a biosafety protocol and summarizes the results of recent protocol negotiations, such as those conducted in Cartagena, Colombia in February 1999, which continued in Montreal in January 2000. Part III explains why the proposed protocol embodies a variant of the precautionary principle and why such policies may do more harm than good. This paper concludes with some …

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Faculty Publications

Just over ten years ago, Germans tore down a wall that divided their country and the whole of Europe. Stepping through the hole in the Berlin Wall, they took the first steps towards the reunification of West and East Germany and the end of the Cold War. Today another wall is being torn down—that between purely domestic law and international law. Companies are engaged in international trade at ever increasing rates. Environmental degradation has proved to be a global problem that cannot be solved with uncoordinated local measures. Individuals worldwide are pressing their governments for the recognition of a common …

The Appointment Of General Yaron: Continuing Impunity For The Sabra And Shatilla Massacres, Linda A. Malone

Faculty Publications

No abstract provided.

A Race Approach To International Law (Rail): Is There A Need For Yet Another Critique Of International Law, Ediberto Román

Faculty Publications

This work reviews an important shortcoming of the dominant public international paradigm and the recent methodical responses to that edifice. Specifically, this article argues that issues of race have not been significantly addressed in international law discourse. In particular, this Article notes that in the theoretical discourse some writers have discussed race, but the thrust of the discourse marginalizes the importance of race. In the practice of international law, people of color are affected but rarely recognized in policy debates. Additionally, this work attempts to explain how a discourse that positions race at the center of the discourse increases the …

On Children And Dual Nationality: Sabet And The Islamic Republic Of Iran, Nancy Amoury Combs

Faculty Publications

The Iran-United States Claims Tribunal's recent decision in Sabet and The Islamic Republic of Iran sheds new light on difficult issues concerning the dual nationality of minors. In particular, the case was the first in which the Tribunal determined minor dual national claimants to have a dominant and effective nationality different from that of either of their parents. Further, the Tribunal broke new ground in its analysis of 'the caveat,' an equitable doctrine that can bar the claims of dual nationals. This article applauds the Tribunal's advances in its caveat jurisprudence and develops a new approach that would further those …

Clear And Present Danger: Enforcing The International Ban On Biological And Chemical Weapons Through Sanctions, Use Of Force, And Criminalization, Michael P. Scharf

Faculty Publications

Currently there are two means of enforcing the international prohibition of chemical and biological weapons. First, the international community can induce compliance through imposition of sanctions, such as trade embargoes, freezing of assets and diplomatic isolation. Second, when sanctions fail, States can individually or collectively respond to the threat of chemical or biological weapons by using military force. After exploring the potential strengths and weaknesses of these approaches, this article examines the desirability of supplementing them with a third approach based on the criminal prosecution of persons responsible for the production, stockpiling, transfer, or use of chemical and biological weapons.

The Amnesty Exception To The Jurisdiction Of The International Criminal Court, Michael P. Scharf

Faculty Publications

This article examines the paradoxical question of whether the International Criminal Court will require justice at the expense of peace. Notwithstanding the popular catch phrase of the 1990s - "no peace without justice"' - peace and justice are sometimes incompatible goals. To end an international or internal conflict, negotiations must often be conducted with the very leaders who were responsible for war crimes and crimes against humanity. When this is the case, insisting on criminal prosecutions can prolong the conflict, resulting in more death, destruction, and human suffering.

Discovery In International Legal Developments Year In Review: 1998, Christopher J. Borgen

Faculty Publications

American procedure regarding international discovery stems from 28 U.S.C. §§ 1781-1783, and the Federal Rules of Civil Procedure, in particular Rule 28(b). The leading case on the topic of international discovery is the Supreme Court's decision in Société Nationale Industielle Aerospatiale v. United States District Court. Many later cases base their reasoning on interpretations of Aerospatiale. This article is a brief review of developments during the year.

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …

Reconstructing Self-Determination: The Role Of Critical Theory In The Positivist International Law Paradigm, Ediberto Román

Faculty Publications

This article (or conference transcription) discuses the role that critical race theory may have on what, will be called, self-determination movements. It commences with the introduction of four speakers Taygab Muhmud, Seigfried Weissner, Julie Mertus and Donna Coker, discussing various forms of self-determination movements of indigenous people, the neocolonial plight of the people of South Asia and a comparative analysis of Eastern Europeans. The article then undertakes an innovative critical analysis of the acceptance of the liberal international law doctrine of self-determination. In particular, it will critique the purportedly universal norm of self-determination in order to expose and explain its …

International Comity And The Foreign Tax Credit: Crediting Nonconforming Taxes, Glenn E. Coven

Faculty Publications

No abstract provided.

The Letter Of The Law: The Scope Of The International Legal Obligation To Prosecute Human Rights Crimes, Michael P. Scharf

Faculty Publications

While international criminal conventions are limited in their application, there is growing recognition of a duty for states to do something to give meaning to human rights.

Discovery In International Legal Developments Year In Review: 1997, Christopher J. Borgen

Faculty Publications

U.S. law provides litigants with a variety of means to obtain evidence from foreign jurisdictions. The Federal Rules of Civil Procedure (the Federal Rules) and rules of state courts may be used if a U.S. court has jurisdiction over the person who is in control of the evidence in question. Section 1783 of tide 28 of the United States Code provides a means for serving a subpoena on U.S. nationals or residents abroad. Litigants may also obtain foreign discovery through letters rogatory as permitted by 28 U.S.C. § 1781 and treaties such as the Hague Convention on Taking Evidence (the …

Law And Economic Development: A New Beginning?, Lan Cao

Faculty Publications

No abstract provided.

The Prosecutor V. Dusko Tadic: An Appraisal Of The First International War Crimes Trial Since Nüremberg, Michael P. Scharf

Faculty Publications

No abstract provided.

Have We Really Learned The Lessons Of Nüremberg?, Michael P. Scharf

Faculty Publications

No abstract provided.

Getting Serious About An International Criminal Court, Michael P. Scharf

Faculty Publications

No abstract provided.

Swapping Amnesty For Peace: Was There A Duty To Prosecute International Crimes In Haiti?, Michael P. Scharf

Faculty Publications

By examining the political realities of the Haiti situation and the applicable provisions of treaty and customary law, this Article seeks to assess whether the Haitian amnesty did indeed achieve "a proper mix." To this end, the Article begins with a description of the abuses reportedly committed by Haiti's military regime and the international community's attempts to restore the democratically-elected govemment to power. Next, it explores the policy arguments for and against amnesty as applied to the Haitian situation and analyzes the scope of both the Haitian amnesty law and President Aristide's amnesty decree. This section is followed by a …