International Law Commons^™

A Hitchhiker’S Guide To The Oecd’S International Vat/Gst Guidelines, Walter Hellerstein

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The OECD’s International VAT/GST Guidelines, which were released in their consolidated form at the OECD’s Global Forum on VAT in Paris in late 2015, are the culmination of nearly two decades of efforts to provide internationally accepted standards for consumption taxation of cross-border trade, particularly trade in services and intangibles. This article provides a roadmap to the Guidelines, especially for readers who may be unfamiliar with consumption tax principles, in general, or VATs in particular. Part II of the article provides the background to the Guidelines, describing the basic features of a VAT, the problems with which the Guidelines are …

Securing Child Rights In Time Of Conflict, Diane Marie Amann

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Each term in the title of this essay seems simple, yet provides much food for analytical thought. The essay thus explores: what is “conflict,” and whether there is a “time” when it is not present; who is a “child”; whether and to what extent children enjoy “rights”; and, finally, how local, national, and international regimes go about “securing” those rights. The essay – based on a talk given at the 2015 International Law Weekend in New York – concludes with a glance at a new potential avenue for child security: the Sustainable Development Goals which the U.N. General Assembly adopted …

The Business Of Treaties, Melissa J. Durkee

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Business entities play important and underappreciated roles in the production of international treaties. At the same time, international treaty law is hobbled by state-centric presumptions that render its response to business ad hoc and unprincipled.

This Article makes three principal contributions. First, it draws from case studies to demonstrate the significance of business participation in treaty production. The descriptive account invites a shift from attention to traditional lobbying at the domestic level and private standard-setting at the transnational level to the ways business entities have become autonomous international actors, using a panoply of means to transform their preferred policies into …

Harmonizing European Tort Law And The Comparative Method A Review Of Basic Questions Of Tort Law From A Comparative Perspective (Helmut Koziol Ed., Sramek 2015), Michael Wells

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This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s …

Children, Diane Marie Amann

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This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

Zivotofsky Ii's Two Visions For Foreign Relations Law, Harlan G. Cohen

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The five opinions in Zivotofsky v. Kerry – four by the Supreme Court’s Republican-nominated Justices – exposed fault-lines over foreign relations law that have remained hidden in many of the Court’s other cases. This short essay, part of an AJIL Unbound Agora on the case, explores the most notable of these fissures – that between Justice Kennedy, who wrote the majority opinion, and Chief Justice Roberts, who dissented. Their disagreement in this case highlights the two Justices’ very different visions of U.S. foreign relations law and reveals the dynamic that has defined the direction of the Court over the last …

Formalism And Distrust: Foreign Affairs Law In The Roberts Court, Harlan G. Cohen

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When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the RobertsCourt foreign affairs law jurisprudence.

The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state laws, …

Concept And Contract In The Future Of International Law, John Linarelli

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This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

Are We Serious About Performers' Rights?, Mary Lafrance

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Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …

Non-State Armed Groups And The Role Of Transnational Criminal Law During Armed Conflict, Christopher L. Blakesley, Dan E. Stigall

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With the ascendance of the terrorist group known as the Islamic State of Iraq and Syria (ISIS), the international community has struggled to adapt to the new international security context. Among the challenges that are currently being confronted are questions relating to how states may effectively facilitate international cooperation to counter ISIS (especially among countries in the Middle East and North Africa). Within this context, guidance from the United Nations on international cooperation posits that “[t]he universal counter-terrorism conventions and protocols do not apply in situations of armed conflict” – a legal position that would serve to stymie important cooperative …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

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The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

The Death Of Deference And The Domestication Of Treaty Law, Harlan G. Cohen

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How much deference do courts give to Executive branch views on treaty interpretation? The Restatement (Third) of the Foreign Relations Law of the United States tells us that courts “will give great weight to an interpretation made by the executive branch,” and earlier empirical studies suggested that deference to Executive in such cases was robust. But is that still the case? The Supreme Court’s rejection of the Executive’s view in a series of high profile cases including Hamdan v. Rumsfeld, BG Group PLC v. Republic of Argentina, and Bond v. United States should raise some doubts. This short article investigates, …

Theorizing Precedent In International Law, Harlan G. Cohen

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Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a …

The Post-Postcolonial Woman Or Child, Diane Marie Amann

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This essay is based on remarks given as Distinguished Discussant for the 16th annual Grotius Lecture at the 2014 Annual Meeting of the American Society of International Law/Biennial Conference of the International Law Association. The essay examines the international law status of women, on the one hand, and children, on the other, through the contemporary lens of the post-postcolonial world and the historical lens of Hugo Grotius and the colonialist era. In so doing, the essay responds to the principal Grotius Lecture, "Women and Children: The Cutting Edge of International Law," which was delivered by Radhika Coomarswamy, NYU Global Professor …

Sea Change: New Rulemaking Procedures At The International Labour Organization, Desiree Leclercq

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The International Labour Organization (“ILO”) turns 100 years old in 2019, and is accordingly one of the oldest international organizations. Its mandate to promote decent work through standard-setting and norm supervision has been challenged by rapid changes in the world of work brought on by globalization, technological advancements, and an increasingly migratory workforce. These changes require the ILO to maintain a flexible system of norm creation and rulemaking that can adapt just as rapidly.

To ensure a flexible system, the ILO should be able to revise its instruments in a sufficiently responsive time. The ILO’s rule to amend its instruments, …

Formalism And Distrust: Foreign Affairs Law In The Roberts Court,, Harlan G. Cohen

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When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence. The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state …

Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer

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This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary to …

The Story Of Jewish Polygamy, Mark Goldfeder

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This Article examines the intersection of law, religion, and culture in the evolution of polygamy in the Jewish tradition. It traces the development of Jewish thought on polygamy over time by assembling and analyzing relevant discussions, arguments, decisions, and biblical interpretations from the time of the Hebrew Bible passages, when plural marriage was an accepted part of Jewish society, to the early Middle Ages when the practice was formally and conclusively rejected. In doing so, the Article attempts to untangle the various influences-both practical and doctrinal, internal and external-on the evolution of marriage law in Jewish communities. These findings highlight …

The Adoption Of Children In Judaism And In Israel; A Conceptual And Practical Review, Mark Goldfeder

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Religion has played a fairly significant role in the history of adoption law, both in the U.S. and internationally. Although there are plenty of questions raised by religion in the context of adoption, one particular issue revolves around whether or not religion should factor into a "best interests of the child" placement determination. Whether or not it should factor into the determination, in practice religion often plays a part in the legal determination of which home will provide the best and most supportive environment for an adopted child. While much has been written about the legal aspect of putting a …

Who Should Be A Jew? Conversion In The Diaspora And In The Modern Nation-State, Mark Goldfeder, Michael J. Broyde

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No abstract provided.

How Trade Law Changed: Why It Should Change Again, John Linarelli

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No abstract provided.

The Marrakesh Puzzle, Marketa Trimble

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This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …

International Law And The Future Of Peace, Diane Marie Amann

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These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

Lawyers And Precedent, Harlan G. Cohen

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Despite common references to the “invisible college of international lawyers,” and the doctrinal role granted to “the most highly qualified publicists of the various nations,” the role of lawyers, as lawyers, in the creation, development, and maintenance of the international legal order remains oddly underexplored. This short essay, prepared as part of a symposium on “The Role of Non-State Actors in International Law,” explores the role of lawyers as independent actors within international law. It argues that focusing on lawyers can help provide insights into how international law develops — specifically here, how and why a practice of precedent seems …

Book Review: Reimagining Child Soldiers In International Law And Policy By Mark A. Drumbl., Diane Marie Amann

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Book review of Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl(New York: Oxford Univ. Press, 2012).

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

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The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

International Law’S Erie Moment, Harlan G. Cohen

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Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.

Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the …

The State Of Israel’S Constitution; A Comparison Of Civilized Nations, Mark Goldfeder

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The art of constitution-making is never one-dimensional. In regard to the United States' model, it has recently been argued that "[d]espite the enormous literature on the critical period, including the foreign affairs imperatives behind the movement for reform, it is not fully understood that the animus behind the reform effort that culminated in the new Constitution was a desire to ensure that the United States would be in a position to meet its international commitments and thereby earn international recognition."' While there are obvious differences, and while this concept is perhaps of even greater importance and more poignantly felt for …

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

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Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

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The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …