International Law | Open Access Articles | Digital Commons Network™

Permanency Is Not Enough: Children Need The Nurturing Parents Found In International Adoption, Elizabeth Bartholet

NYLS Law Review

No abstract provided.

Go to article

Reflections On The Special Humanitarian Parole Program For Haitian Orphans, Whitney A. Reitz

NYLS Law Review

No abstract provided.

Go to article

Ghana's Human Trafficking Act: Successes And Shortcomings In Six Years Of Implementation, Manda Sertich, Marijn Heemskerk

Human Rights Brief

No abstract provided.

Go to article

Mental Torture: A Critique Of Erasures In U.S. Law, David Luban, Henry Shue

Georgetown Law Faculty Publications and Other Works

Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering—one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes …

Go to article

Risk Taking And Force Protection, David Luban

Georgetown Law Faculty Publications and Other Works

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy's civilians as for one's own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while …

Go to article

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Go to article

The Who Global Code Of Practice On The International Recruitment Of Health Personnel: The Evolution Of Global Health Diplomacy, Allyn L. Taylor, Ibadat S. Dhillon

Georgetown Law Faculty Publications and Other Works

The May 2010 adoption of the World Health Organization Global Code of Practice on the International Recruitment of Health Personnel created a global architecture, including ethical norms and institutional and legal arrangements, to guide international cooperation and serve as a platform for continuing dialogue on the critical problem of health worker migration. Highlighting the contribution of non-binding instruments to global health governance, this article describes the Code negotiation process from its early stages to the formal adoption of the final text of the Code. Detailed are the vigorous negotiations amongst key stakeholders, including the active role of non-governmental organizations. The …

Go to article

Democracy Promotion In The Obama Administration: An Opportunity To Match Action To Rhetoric, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Go to article

Ethical Allocation Of Preexposure Hiv Prophylaxis, Lawrence O. Gostin, Susan C. Kim

Georgetown Law Faculty Publications and Other Works

Civil society-led movements transformed global AIDS action from deep skepticism about extending anti-retroviral (ARV) treatment in low and middle-income countries to an historic scaling up of treatment towards universal access. The AIDS movement, however, is at an inflection point due to the interplay of key health and economic determinants—the global financial downturn, tight foreign aid budgets, and intense resource competition. Policy makers will now have to consider implementation of a new intervention—pre-exposure prophylaxis (PrEP), which could mean a diversion of ARVs from treatment to prevention. The principle underlying PrEP is that ARVs could prevent HIV infection among people who are …

Go to article

Hannah Arendt As A Theorist Of International Criminal Law, David Luban

Georgetown Law Faculty Publications and Other Works

This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than …

Go to article

The Extraterritorial Reach Of Section 10(B): Revisiting Morrison In Light Of Dodd-Frank, Kara Baquizal

Fordham International Law Journal

This Note argues that the conduct-and-effects test set out in Dodd-Frank should not extend to private rights of action under § 10(b) of the Exchange Act. Part I discusses three principle ideas key to understanding US securities law and its extraterritorial application: the framework of US regulations surrounding securities fraud; the availability of a private right of action in the United States and how it compares with the regulatory regimes of other countries; and the presumption against extraterritoriality in American law. Part II explains the conflicting tests that currently exist in American jurisprudence regarding the extraterritorial reach of § 10(b): …

Go to article

Casting A Cold Eye On The Origins And Development Of An All-Island Charter Of Rights, Suzanne Egan, Rachel Murray

Fordham International Law Journal

One of the most striking outcomes of the Good Friday/Belfast Agreement ("Agreement") was the extent to which the establishment of human rights institutions and mechanisms was brought center-stage into the shaping of the political settlement. The dynamic talks process that led to the signing of the Agreement resulted in an extensive range of obligations in regard to human rights on the part of the Irish and British governments, many of which were implemented very soon afterwards. Paragraph 10 of the "Rights, Safeguards and Equality of Opportunity" section of the Agreement makes mention of a trans-jurisdictional human rights initiative that would …

Go to article

Criteria Developed By The European Court Of Human Rights On The Dissolution Of Political Parties, Olgun Akbulut

Fordham International Law Journal

While there seems to be a consensus that political parties remain the sine qua non of western democracies, the question of under which conditions political parties could be dissolved has also been gaining significance in European human rights law since the 1990s. An overall assessment of the cases decided by the European Court of Human Rights ("ECtHR") and domestic courts of the member of the Council of Europe suggests there are three categories of political parties faced with the prospect of dissolution. Part I of this Article describes the first category, the political parties that have criticized state policies on …

Go to article

Introduction: A Tribute To Jean-Claude Piris, Director-General Of The Legal Service Of The Council Of The European Union, Roger J. Goebel

Fordham International Law Journal

On the occasion of his retirement, the Fordham International Law Journal is dedicating this issue on topics concerning European Union law to Jean-Claude Piris, who brilliantly served as Director-General of the Legal Service of the Council for the last twenty-three years. The Legal Service, currently composed of around 120 lawyers, not only provides legal advice to the Council itself and all of its supporting committees and staff, but also reviews all draft legislation and other legal acts of the European Union and represents the Council in proceedings before the Court of Justice of the European Union.

Go to article

Mediation To Resolve The Bedouin-Israeli Government Dispute For The Negev Desert, Sarah S. Matari

Fordham International Law Journal

In Part I, this Note elaborates on the rights that indigenous persons have to ancestral land and the sources of international law that support those rights. Part I also discusses the alternative dispute resolution process of mediation and the customary discouragement of mediation between parties with a power imbalance. Part II explores whether the Negev Bedouins and Israeli government should pursue mediation to resolve their land dispute and generally addresses techniques used to monitor mediation sessions between parties with a power imbalance. Part III explores why mediation is better suited to resolve the Israeli government-Negev Bedouin land dispute than is …

Go to article

J.Mc.B V. L.E.: The Intersection Of European Union Law And Private International Law In Intra-European Union Child Abduction, Claire Dekar

Fordham International Law Journal

The certified question and the legal impact of the Court of Justice's preliminary ruling on that question are the subject of this Comment. Part I explains the relevant provisions of the Hague Abduction Convention, Brussels II bis, and the implicated European human rights laws, and discusses the case in chief before the Irish High and Supreme Courts. Part II examines the Court of Justice's opinion on the certified question. Finally, Part III analyzes the impact of the opinion on J.McB. and his family, Brussels II bis and its interpretation, and the jurisprudence the Court of Justice regarding the protection of …

Go to article

Awaking The Sleeping Dragon: The Evolving Chinese Patent Laws And Its Implications For Pharmeceutical Patents, Rachel T. Wu

Fordham International Law Journal

Part I of this Comment will discuss the development of the Chinese IP system and discuss why it has been ineffective in protecting pharmaceutical patents by comparing it to the US patent system. Part II analyzes the third amendment to the Chinese patent law and how it protects patents, particularly pharmaceutical ones, and deters counterfeiters from infringing upon the patents. Part II also presents different views on the effectiveness of the third amendment to protect patents. Part III argues that even though the third amendment is a great leap forward, pharmaceutical counterfeiting will continue to happen if the local governments …

Go to article

The International Legal Right To Individual Compensation In Nepal And The Transitional Justice Context, Matthew F. Putori

Fordham International Law Journal

Part I of this Note provides a brief political history of Nepal since the mid-eighteenth century; defines the concept of transitional justice; and explores the international law of remedy, reparations, and compensation. Part II focuses on the right to individual compensation in order to determine which human rights violations trigger a state's legal obligation to compensate victims, and then applies that right to the transitional justice context. Finally, Part III proposes the design of an individual compensation program in which Nepal, and other transitional states, can fulfill legal obligations while simultaneously working toward peace, democracy, and development.

Go to article

Nuclear Weapons And Compliance With International Humanitarian Law And The Nuclear Non-Proliferation Treaty, Charles J. Moxley Jr., John Burroughs, Jonathan Granoff

Fordham International Law Journal

This Essay proceeds in three Parts. Part I describes the effects of nuclear weapons and the many calls in recent years from across the political spectrum for the abolition of nuclear weapons, including such calls by President Obama both as presidential candidate and as president. Part II describes the Obama NPR and the many respects in which it backs away from the avowed objective of abolition by continuing the United States' Cold War posture, which was premised on the putative legitimacy of nuclear weapons and deterrence and in defiance of international law. Part III suggests how a nuclear posture committed …

Go to article

Assessing The Applicability Of The Business Judgment Rule And The "Defensive" Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Charlie Xiao-Chuan Weng

Fordham International Law Journal

Since China's accession to the World Trade Organization ("WTO") on November 10, 2001, corporate China has been struggling to dismantle the inefficient management systems formed in the era of the planned economy, and it barely survives under the more competitive market economy environment that began to form in 1978. In order to become stronger, both before and after WTO admission, many corporations have been trying to restructure and grow by devouring others. Part I of this Essay provides a basic summary of the business judgment rule and the "defensive" business judgment rule. Part II discusses some of the difficulties that …

Go to article

Working Toward A Legally Enforceable Nuclear Non-Proliferation Regime, Ronald J. Sievert

Fordham International Law Journal

The foundation of the international effort to stop the proliferation of nuclear weapons is the Nuclear Non-Proliferation Treaty ("NPT"). This Article proceeds in three parts. Part I proposes a new Nuclear Non-Proliferation Treaty. Part II contains preliminary observations regarding the Security Council, General Assembly and Zanger Committee provisions of the new treaty and then addresses the basic question of why nations might be willing to scrap the established NPT in favor of this new proposed agreement. Finally, Part III discusses how the advent of international institutions and the increasing incorporation of international law into the framework of domestic, regional and …

Go to article

After Guantánamo: Legal Rights Of Foreign Detainees Held In The United States In The "War On Terror", Ashley C. Pope

Fordham International Law Journal

Part I of this Note explores the background of both the Guantánamo detainee problem-i.e., what rights a foreign national detained at Guantánamo has-and the domestic detainee problem-i.e., what rights a foreign national detained on US soil has-that the United States may soon be facing, as well as the development of the law that has left open these legal ambiguities. Part I also discusses the applicability of international law on the issue. Part II presents the current conflict over the rights foreign detainees should have and the legality of detention on US soil, discusses the applicability of international law within the …

Go to article

Taking The Law Seriously: The Imperative Need For A Nuclear Weapons Convention, Peter Weiss

Fordham International Law Journal

Jonathan Swift famously said, "Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through." Swift was no doubt referring to the propensity of the law to shrink from prosecuting the lords of the realm, while going vigorously after smaller fry. But his aphorism applies equally to issues: the more portentous the issue, the less likely it is to yield to legal restraints. This is evidenced by such lawless pronouncements as "international law is not a suicide pact" or, more recently, "I believe that all nations-strong and weak alike-must adhere to standards that govern the …

Go to article

Nonproliferation Verification And The Nuclear Test Ban Treaty, Jenifer Mackby

Fordham International Law Journal

President Obama's administration has ushered in a banner period for nuclear issues, and the Comprehensive Nuclear Test-Ban Treaty ("CTBT") has figured prominently among them. In his benchmark April 2009 speech in Prague calling for the elimination of nuclear weapons, President Obama added that his administration would "immediately and aggressively" pursue US ratification of the treaty. In September, President Obama presided over the United Nations ("UN") Security Council summit meeting that adopted Resolution 1887, which "enshrines our shared commitment to the goal of a world without nuclear weapons" and also calls on states to "refrain from conducting a nuclear test explosion …

Go to article

Obama's Nuclear Posture Review: An Ambitious Program For Nuclear Arms Control But A Retreat From The Objective Of Nuclear Disarmament, Charles J. Moxley Jr.

Fordham International Law Journal

President Barack Obama and US political and policy leaders across the political spectrum have in recent years spoken about the need to eliminate nuclear weapons because of the dangers they pose. In 1970, the United States agreed by Article VI of the Nuclear Non-Proliferation Treaty ("NPT") to negotiate nuclear disarmament in good faith. The International Court of Justice ("ICJ") in 1996 found that this is an obligation not just to begin but also to "bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." International humanitarian law ("IHL") prohibits the use …

Go to article

The Treaty Of Lisbon: A Story In History Or The Making Of A Treaty, Therese Blanchet

Fordham International Law Journal

And like all stories there are of course the main characters, the public heroes, and, around them, those who help them find a happy ending. The story in this Essay is written in honor of one of the characters who played a key role in achieving the Treaty of Lisbon: Jean-Claude Piris, who was for more than twenty two years, Director General of the Legal Service of the Council of the EU. But to understand this story, to understand the reasons behind it, one should know its roots.

Go to article

Pirates And Impunity: Is The Threat Of Asylum Claims A Reason To Allow Pirates To Escape Justice, Yvonne M. Dutton

Fordham International Law Journal

Pirates are literally getting away with murder. Modern pirates are attacking vessels, hijacking ships at gunpoint, taking hostages, and injuring and killing crew members.1 They are doing so with increasing frequency. According to the International Maritime Bureau (“IMB”) Piracy Reporting Center’s 2009 Annual Report, there were 406 pirate attacks in 2009—a number that has not been reached since 2003. Yet, in most instances, a culture of impunity reigns whereby nations are not holding pirates accountable for the violent crimes they commit. Only a small portion of those people committing piracy are actually captured and brought to trial, as opposed to …

Go to article

Formalization Of Plea Bargaining In Germany: Will The New Legislation Be Able To Square The Circle?, Regina E. Rauxloh

Fordham International Law Journal

In German criminal trials, the common law instrument of the guilty plea is unknown. Consequently, one cannot speak of plea bargaining in the strict sense. Nevertheless, informal negotiations, which center on the exchange of a confession for a sentence concession, play an increasing role in the German criminal process. It is claimed that in today’s Germany “the criminal procedure cannot be imagined without the phenomenon of informal agreements.” After years of academic debate and developing case law on informal agreements, the German Federal Parliament (Deutscher Bundestag) has now passed new legislation that regulates agreements and makes them part of the …

Go to article

The Evolution Of Operational Policies And Procedures At International Financial Institutions: Normative Significance And Enforcement Potential, Daniel D. Bradlow, Andria Naude Fourie

Scholarly Articles in Law Reviews & Journals

The exact contours of international organizations’ (IO) responsibility have not yet been clearly defined. While IOs – and international financial institutions (IFIs) in particular – have in the past avoided drawing those contours in more certain terms, this position is slowly changing: IFIs have been changing expectations about their standards of conduct, as reflected in their evolving operational policies and procedures (OP&P). This report provides an overview of the content, formulation, adoption, amendment and enforcement of OP&P at multilateral development banks (MDB) (a subset of IFIs). It highlights the impact of three developments that are strengthening the normative significance and …

Go to article

Regulating Information Flows, Regulating Conflict: An Analysis Of United States Conflict Minerals Legislation, Christiana Ochoa, Patrick J. Keenan

Articles by Maurer Faculty

The connection between conflict and commercial activity is the focus of this paper. In particular, it focuses on the ongoing conflict in the Eastern Democratic Republic of Congo (DRC) that is funded, in large part, by the sale of conflict commodities – minerals, metals and petroleum that fund violent groups at their source and then enters legitimate markets and products around the world. Recently, attention has turned to how to regulate conflict commerce as a tool for divesting from violent conflict. In the United States, for example, the recently-adopted Dodd-Frank Wall Street Reform and Consumer Protection Act include a provision …

Go to article

Full-Text Articles in International Law

Permanency Is Not Enough: Children Need The Nurturing Parents Found In International Adoption, Elizabeth Bartholet

NYLS Law Review

Reflections On The Special Humanitarian Parole Program For Haitian Orphans, Whitney A. Reitz

NYLS Law Review

Ghana's Human Trafficking Act: Successes And Shortcomings In Six Years Of Implementation, Manda Sertich, Marijn Heemskerk

Human Rights Brief

Mental Torture: A Critique Of Erasures In U.S. Law, David Luban, Henry Shue

Georgetown Law Faculty Publications and Other Works

Risk Taking And Force Protection, David Luban

Georgetown Law Faculty Publications and Other Works

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The Who Global Code Of Practice On The International Recruitment Of Health Personnel: The Evolution Of Global Health Diplomacy, Allyn L. Taylor, Ibadat S. Dhillon

Georgetown Law Faculty Publications and Other Works

Democracy Promotion In The Obama Administration: An Opportunity To Match Action To Rhetoric, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

Ethical Allocation Of Preexposure Hiv Prophylaxis, Lawrence O. Gostin, Susan C. Kim

Georgetown Law Faculty Publications and Other Works

Hannah Arendt As A Theorist Of International Criminal Law, David Luban

Georgetown Law Faculty Publications and Other Works

The Extraterritorial Reach Of Section 10(B): Revisiting Morrison In Light Of Dodd-Frank, Kara Baquizal

Fordham International Law Journal

Casting A Cold Eye On The Origins And Development Of An All-Island Charter Of Rights, Suzanne Egan, Rachel Murray

Fordham International Law Journal

Criteria Developed By The European Court Of Human Rights On The Dissolution Of Political Parties, Olgun Akbulut

Fordham International Law Journal

Introduction: A Tribute To Jean-Claude Piris, Director-General Of The Legal Service Of The Council Of The European Union, Roger J. Goebel

Fordham International Law Journal

Mediation To Resolve The Bedouin-Israeli Government Dispute For The Negev Desert, Sarah S. Matari

Fordham International Law Journal

J.Mc.B V. L.E.: The Intersection Of European Union Law And Private International Law In Intra-European Union Child Abduction, Claire Dekar

Fordham International Law Journal

Awaking The Sleeping Dragon: The Evolving Chinese Patent Laws And Its Implications For Pharmeceutical Patents, Rachel T. Wu

Fordham International Law Journal

The International Legal Right To Individual Compensation In Nepal And The Transitional Justice Context, Matthew F. Putori

Fordham International Law Journal

Nuclear Weapons And Compliance With International Humanitarian Law And The Nuclear Non-Proliferation Treaty, Charles J. Moxley Jr., John Burroughs, Jonathan Granoff

Fordham International Law Journal

Assessing The Applicability Of The Business Judgment Rule And The "Defensive" Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Charlie Xiao-Chuan Weng

Fordham International Law Journal

Working Toward A Legally Enforceable Nuclear Non-Proliferation Regime, Ronald J. Sievert

Fordham International Law Journal

After Guantánamo: Legal Rights Of Foreign Detainees Held In The United States In The "War On Terror", Ashley C. Pope

Fordham International Law Journal

Taking The Law Seriously: The Imperative Need For A Nuclear Weapons Convention, Peter Weiss

Fordham International Law Journal

Nonproliferation Verification And The Nuclear Test Ban Treaty, Jenifer Mackby

Fordham International Law Journal

Obama's Nuclear Posture Review: An Ambitious Program For Nuclear Arms Control But A Retreat From The Objective Of Nuclear Disarmament, Charles J. Moxley Jr.

Fordham International Law Journal

The Treaty Of Lisbon: A Story In History Or The Making Of A Treaty, Therese Blanchet

Fordham International Law Journal

Pirates And Impunity: Is The Threat Of Asylum Claims A Reason To Allow Pirates To Escape Justice, Yvonne M. Dutton

Fordham International Law Journal

Formalization Of Plea Bargaining In Germany: Will The New Legislation Be Able To Square The Circle?, Regina E. Rauxloh

Fordham International Law Journal

The Evolution Of Operational Policies And Procedures At International Financial Institutions: Normative Significance And Enforcement Potential, Daniel D. Bradlow, Andria Naude Fourie

Scholarly Articles in Law Reviews & Journals

Regulating Information Flows, Regulating Conflict: An Analysis Of United States Conflict Minerals Legislation, Christiana Ochoa, Patrick J. Keenan

Articles by Maurer Faculty