International Law Commons^™

Refugees, Internally Displaced Persons, And International Humanitarian Law, Francois Bugnion

Fordham International Law Journal

The fact that war is the primary cause of people being uprooted prompts us to ask what protection the law of armed conflict affords refugees and displaced persons. How does humanitarian law protect groups of civilians from being forced to flee? What protection does it offer those who have nevertheless been uprooted, and how does that protection interrelate with refugee law? How can the Red Cross and Red Crescent organizations, in particular the International Committee of the Red Cross (“ICRC”), come to the aid of refugees and displaced persons? These are the questions this Article aims to answer. First, however, …

Refuge In An Insecure Time: Seeking Asylum In The Post-9/11 United States, Eleanor Acer

Fordham International Law Journal

The current climate of insecurity has in a sense presented an opportunity for those with restrictive immigration agendas to use a new vocabulary to advance long desired objectives as well as new policies that sacrifice fairness and negatively affect immigrants. The result has been a decline in due process and the undermining of basic protections of international refugee and human rights law, including: the prohibition on arbitrary detention, embodied in Article 9 of the International Covenant on Civil and Political Rights; the prohibition on returning a refugee to persecution, the cornerstone of the 1951 Convention Relating to the Status of …

Earned Sovereignty: An Emerging Conflict Resolution Approach, Paul Williams, Karen Heymann

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Treaty Power And The Patent Clause: Are There Limits On The United States' Ability To Harmonize?, Timothy R. Holbrook

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Forum Selection In International Contract Litigation: The Role Of Judicial Discretion, Hannah Buxbaum

Articles by Maurer Faculty

The United States is currently involved in negotiation of the Hague Convention on Exclusive Choice of Court Agreements, which would regulate the enforceability of forum-selection clauses in international contracts. That project - as well as the recent focus in globalization literature on more active judicial management of forum selection - draws attention to one unusual aspect of U.S. jurisdictional law: that dismissal on the basis of forum non conveniens is available even in cases arising out of contracts including negotiated forum selection clauses. This article examines the resulting tension between the right of contract parties to select a forum in …

National Courts, Global Cartels: F. Hoffman-Laroche V. Empagran, S.A., Hannah Buxbaum

Articles by Maurer Faculty

This comment discusses the Supreme Court's recent decision in Hoffman-LaRoche v. Empagran, an action brought by foreign plaintiffs under U.S. antitrust law to recover damages caused by the activities of a global price-fixing cartel. It describes the jurisdictional issues raised by conduct that affects the global market for a particular good, and analyzes the Court's reliance on notions of comity to restrain the reach of U.S. antitrust law. It argues, however, that the decision does not in fact undermine the anti-comity approach adopted in the 1993 Hartford Fire case, as the Court here assumes that the cartel's effects in the …

Book Review. Journal Of The National Human Rights Commission, India, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.

International Law And Weapons Of Mass Destruction: End Of The Arms Control Approach?, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Against Global Governance In The Wto, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

In "Global Governance and the WTO," Professor Andrew Guzman has done an impressive job of articulating a vision of the World Trade Organization (WTO) that many international lawyers share. In this vision, the WTO's mission should be expanded beyond its present task of facilitating tariff reductions and preventing covert protectionism. Rather, the WTO should take on substantive authority in a wide variety of non-trade areas, including the environment, labor, human rights, and public health. Unlike many people who share this vision, Guzman takes the time to describe how it might best be accomplished. He advocates specialized WTO departments and periodic …

Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee

Faculty Scholarship

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in …

Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell

Journal Articles

To wage war consistently with international law, a national leader must be able to answer at least three questions in the affirmative: Is there a right to resort to force? Is the use of force necessary? If it is necessary, can it be carried out in a way that the cost in terms of human lives, property, and damage to the natural environment will not outweigh the value of resorting to force? If the answer to any of these questions is no, the use of force is unlawful. International lawyers tend to focus on the first question, understandably. Why analyze …

Something's Rotten In The State Of Party-Appointed Arbitration: Healing Adr's Black Eye That Is "Nonneutral Neutrals", Seth H. Lieberman

Cardozo Journal of Conflict Resolution

This Note will first explore the history of arbitration, particularly within the United States. It will predominantly examine the traditional definitions of arbitrators and any consistencies throughout the various differences of arbitrator definitions. Second, this Note will investigate the traditional definitions of and roles played by advocates in traditional litigation and alternative dispute resolution. It will contrast advocates with party-appointed arbitrators, particularly focusing on their history, reasons for their creation, and their intended purpose.

Third, this Note will investigate the characteristics of modern party-appointed arbitrators, focusing on what scholars and parties regard as their expected behavior in a tripartite arbitration. …

The End Of Legitimacy, Mary Ellen O'Connell

Journal Articles

IRAQ: ONE YEAR LATER

INTRODUCTORY REMARKS by Mary Ellen O'Connell, 261

THE USE OF FORCE IN IRAQ: ILLEGAL AND ILLEGITIMATE by Anne-Marie Slaughter, 262-63

THE IRAQ WAR AND THE FUTURE OF INTERNATIONAL LAW by Richard Falk, 263-66

THE ROLE OF INTERNATIONAL LAW AND THE UN AFTER IRAQ by Thomas M Franck, 266-69

THE END OF LEGITIMACY by Mary Ellen O'Connell, 269-70

THE PROBLEMS OF LEGITIMACY-SPEAK by James Crawford, 271-73

International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Role Of The Bank For International Settlements In Shaping The World Financial System, The , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

The Bank for International Settlements ("BIS") was set up in Basel, Switzerland in 1923 to handle remaining financial issues from World War II largely having to do with German reparation payments. It was the first of the semi-public international banks. Over the years its functions have changed and, largely since the late 1970's, it has served as the situs for the world's central banks and financial regulators to pool ideas and deal with international financial issues. A group of committees, com- posed largely of representatives of central bankers, now meets at BIS and has been issuing memoranda and drafts of …

Whose Justice - Reconciling Universal Juristidiction With Democratic Principles, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Trip-Ping Over Business Method Patents, Vincent Chiappetta

Vanderbilt Journal of Transnational Law

Professor Chiappetta argues that the current effort to expand substantive international patent law harmonization to include business method patenting is ill-conceived and unsupportable. Such patents cannot be justified on the economic incentive grounds supporting the Western regimes. They are not part of the existing TRIPS agreement, and under present circumstances they should not be added. Any future agreement, bi-lateral or multi-lateral (including an extension of TRIPS), must be based on a better calibrated form of protection (less than patent) and should occur only after the persistent normative differences and the distributional consequences of international substantive harmonization have been addressed.

Conclusion: The Rule Of Law Among Countries, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

No abstract provided.

Was Bedeutet "Terrorismus?", Michael P. Malloy

McGeorge School of Law Scholarly Articles

No abstract provided.

International Legal Developments In Review: 2003 [Foreign Law Review], Roger P. Alford

Journal Articles

Contents

• Introduction

Volume 38 Issues 2 (Summer) and 3 (Fall) are titled "International Legal Developments in Review: 2003." This Fall issue covers specific country laws. In previous volumes the Fall issue was titled "Foreign Law Year in Review..." and covered specific country laws.

Passports And Nationality In International Law, Adam I. Muchmore

Faculty Scholarship

Shifts in state control over territory can have substantial consequences for the nationality of individuals. This Article explores situations where an individual finds that the state which issued him a passport no longer recognizes his nationality. The law of binding state action, a set of broadly-accepted rules regulating state representations to other states, may provide more protection for passport-holders than the “soft” norms of human rights law.

Enforcing International Labor Standards: The Potential Of The Alien Tort Claims Act, Marisa A. Pagnattaro

Vanderbilt Journal of Transnational Law

Professor Pagnattaro argues that courts should allow claims under the Alien Tort Claims Act (ATCA) to enforce international labor rights for alien workers. She begins by reviewing the history of the ATCA and the developing jurisprudence in the international labor context, including recent and pending cases involving employee ATCA claims against U.S. multinational corporations. After outlining what is necessary to assert an ATCA claim, including what is required to satisfy jurisdictional requirements, to state a claim under the law of nations, and to hold employers liable for violations of the law of nations, she details international foundations which can be …

Order In The Court: Judicial Stability And Democratic Success In Haiti, Ben J. Scott

Vanderbilt Journal of Transnational Law

Haiti faces many challenges in its attempt to build a stable, liberal democracy. Haitians have endured a legacy of chaotic and heavy-handed rule in recent decades, and the success of democracy in Haiti is both hoped for and doubted by Haitians and the international community. One reason for the doubts has been the failure of the Haitian government successfully to implement free and fair elections. Citizens and candidates are often hesitant even to participate in elections. Though both were tragic, neither the failed legislative and presidential elections of 2000, nor the subsequent coup d'etat in 2004 that resulted in the …

Jurisdictional Theory "Made In Japan": Convergence Of U.S. And Continental European Approaches, Akihiro Hironaka

Vanderbilt Journal of Transnational Law

Recent Japanese cases concerning international jurisdiction illustrate a convergence of two distinct legal approaches to the treatment of jurisdictional issue--a rule-based, inflexible approach in Continental European countries and a standard-based, flexible approach in the United States. Japan's unique framework, as explained in this Article, might provide a useful perspective to solve the difficult question currently imposed on the Hague Conference: How is it possible to achieve comprehensive harmonization of the jurisdictional systems of the world?

Not As Easy As Black And White: The Implications Of The University Of Rio De Janeiro's Quota-Based Admissions Policy On Affirmative Action Law In Brazil, Ricardo Rochetti

Vanderbilt Journal of Transnational Law

This Note specifically addresses the propriety of affirmative action pertaining to admissions to institutions of higher education. The focus will be on Uerj's quota system because, of all of Brazil's neophyte quota systems, it has received the most publicity and attracted the most scrutiny.

Part II of this Note will analyze Uerj's program and highlight the reasons for its ineffectiveness and the arguments that both proponents and opponents of the program have advanced. Part III will introduce the issues that the Supreme Federal Tribunal, Brazil's highest court, will encounter in deciding the challenge that the National Confederation of Teaching Establishments …

Demos, Nomos And Globalization, Paolo G. Carozza

Book Chapters

It is a great privilege to comment on a paper that, like so much of Professor Weiler’s work, is brilliant not only in its intellectual scope but also in the underlying humanity of its vision. His basic thesis is indisputable. International law is indeed an exercise in governance that increasingly generates problems of legitimacy, especially because it governs without the ontological premises of democracy – it has no government and no demos. In the face of this problem, Weiler urges us to seek ‘alternative legitimating devices’. I would like to offer a modest comment on this thesis by making three …

Universal Criminal Jurisdiction, Douglass Cassel

Journal Articles

Universal criminal jurisdiction is an important tool in the worldwide struggle to end impunity for serious international crimes.

Universal criminal jurisdiction is the principle of international law that permits any nation to prosecute certain serious international crimes, regardless of where they are committed, by whom or against whom, or any other unique tie to the prosecuting nation. The Recommendation applies whether or not an accused is in custody and does not address the separate topics of universal jurisdiction in civil cases or the immunities of senior government officials before foreign national courts.

Universal criminal jurisdiction developed over time as a …

Unfunding Terror - Perspectives On Unfunding Terror (Panel One), Jimmy Gurulé

Journal Articles

According to the FBI, the September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon that claimed the lives of 2,973 innocent civilians required as much as $500,000 to stage. At the time, al Qaeda, the jihadi terrorist organization responsible for the mass killings, was operating on an annual budget between $30 and $50 million. However, despite the obvious fact that terrorists need money to support their terrorist operations and organizational infrastructure, prior to 9/11, preventing the financing of terrorism was not a priority for the United States or international community. Moreover, a comprehensive legal framework to …

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our …

International Legal Developments In Review: 2003, Roger P. Alford

Journal Articles

Contents

• Editor's Preface
• Introduction