International Law Commons^™

Sex On The Bench: Do Women Judges Matter To The Legitimacy Of International Courts?, Nienke Grossman

All Faculty Scholarship

This article seeks to advance our understanding of international courts' legitimacy and its relationship to who sits on the bench. It asks whether we should care that few women sit on international court benches. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the article argues that under-representation of one sex affects normative legitimacy because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not think differently, a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups …

Thinking Like A Lawyer Abroad: Putting Justice Into Legal Reasoning, James Maxeiner

All Faculty Scholarship

Americans are taking new interest in legal reasoning. Thinking Like a Lawyer: A New Introduction to Legal Reasoning by Professor Frederick Schauer suggests why. According to Schauer, American legal methods often require decision-makers “to do something other than the right thing.” There has got to be a better way.

Now comes a book that offers Americans opportunities to look into a world where legal methods help decision-makers do the right thing. According to Reinhard Zippelius in his newly published Introduction to German Legal Methods, German legal methods help decision makers resolve legal problems “in a just and equitable manner.”

This …

Could This Train Make It Through: The Law And Strategy Of The Gold Train Case, Charles Tiefer, Jonathan W. Cuneo, Annie Reiner

All Faculty Scholarship

In 1944-45, the Nazis seized personal belongings of the Hungarian Jewish population and dispatched some of the most valuable of them on a train. The United States Army took control of this "Gold Train" and gave reassurances that it would keep the valuables safe. However, the items were plundered by individual soldiers, including officers, and diverted to various uses. After decades of dormancy, a Presidential Commission exposed the facts, but the government still did not right the wrong — until there was litigation.

The "Gold Train" case (Rosner v. United States) represents a measure of justice for the victimized community …

Where Are They Coming From, Where Are They Going: Demanding Accountability In International Adoption, Elizabeth Long

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the United States to exclusively permit international adoptions from countries that have ratified the Hague Adoption Convention (HAC). This approach aims to enhance accountability, prevent human trafficking, and ensure that adoptions are conducted ethically and transparently. The HAC provides a framework that protects the rights of children, birth families, and adoptive parents, addressing the shortcomings of non-HAC adoptions, which often lack sufficient safeguards.

Reclaiming Global Environmental Leadership: Why The United States Should Ratify Ten Pending Environmental Treaties, Noah M. Sachs

Law Faculty Publications

For more than a century, the United States has taken the lead in organizing international responses to international environmental problems. The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion.

In the last two decades, however, U.S. environmental leadership has faltered. The best known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But that is not the only …

Asian Treaty-Makers And Investment Treaty Arbitration: Negotiating With A Wary Eye, Locknie Hsu

Research Collection Yong Pung How School Of Law

The recent increase in bilateral investment treaties and free trade agreements entered into by Asian states has exposed them to increased commitments to foreign investors and the risk of investor-state arbitration. The rise in such arbitrations elsewhere has led to a considerable body of arbitral case law. This article examines the trend of such increased exposure of Asian states, salient issues that have emerged in arbitration case law and lessons for Asian treaty-makers and their legal advisors.

Book Review: International Law Stories, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Military Lawyers And The Two Cultures Problem, David Luban

Georgetown Law Faculty Publications and Other Works

Military and humanitarian lawyers approach the laws of war—labeled “law of armed conflict” by the former and “international humanitarian law” by the latter—in very different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. This article argues that from these radically different axioms legal consequences systematically follow regarding treaty interpretation, the sources and reach of customary international law, the nature of international law, deference and discretion to military commanders, and the connection between …

Train Wreck: The U.S. Violation Of The Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under …

Lessons From Social Psychology For Complex Operations, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This short essay looks at several social forces that powerfully affect human behavior, often trumping individual “character,” personality, knowledge, and even deeply held moral beliefs. Specifically, this essay looks briefly at issues of obedience, conformity, and group polarization, discussing the ways in which they can affect and distort individual behavior. Ultimately, this essay suggests, understanding these dynamics can have important implications for how we think about counterinsurgency and stability operations.

Remarks, James Anaya

Publications

These remarks were delivered at the Closing Plenary--Indigenous Peoples and International Law: A Conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton.

Parochialism, Cosmopolitanism, And The Foundations Of International Law, Mortimer N.S. Sellers

Books

Summary: "This book determines the boundary between parochial and cosmopolitan justice. To what extent should law recognize or support the political, historical, cultural, and economic differences among nations? Ten lawyers and philosophers from five continents consider whether certain states or persons deserve special treatment or exemptions or heightened duties under international law. Parochialism and cosmopolitanism are the two faces of international law, which recognizes our common humanity by protecting us in our differences"-- Provided by publisher.

Introductory Remarks: International Energy Governance, Lakshman Guruswamy

Publications

No abstract provided.

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Publications

No abstract provided.

The Message And Means Of The Modern Terrorism Prosecution, Wadie E. Said

Publications

This Article, written in conjunction with Transnational Law and Contemporary Problems' 2011 Symposium on Ten Years After 9/11: Rethinking Counterterrorism, stemmed from a panel that examined "how the United States and other Western countries receive Islamic culture in their societies and how they export their Western cultures to the Islamic world, in each case to assess the degree to which their cross-cultural behaviors mitigate or worsen anti-Western terrorism from the Middle East and Central/South Asia and to recommend solutions if needed."' This contribution focuses on the criminal terrorism prosecution in the United States, and takes up the panel's theme by …

The Legal Dilemma Of Guantanamo Detainees From Bush To Obama [Updated], Linda A. Malone

Faculty Publications

The stage for the Guantanamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantanamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian law requirements, …

Legitimizing International Criminal Justice: The Importance Of Process Control, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Cyberwar And International Law: An English School Perspective, Anthony F. Sinopoli

USF Tampa Graduate Theses and Dissertations

Cyberwar challenges future endeavors of state security. As technological capability has improved, and access to information has become more widespread the importance of the issue in today's ever-globalizing world grows each day. A primary objective is to evaluate the place of cyber-warfare against nation-states and any repercussions under an international law paradigm. Utilizing an English School perspective, emphasis will be applied to the argument that disruptive circumstances could come to fruition if international conventions are not created to bring consensus and order among nation-states on this subject. This study hypothesizes that a future application could be an agreement under international …

A Functional Approach To Targeting And Detention, Monica Hakimi

Faculty Scholarship

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …

The "Gateway" Problem In International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Participants in international commercial arbitration have long recognized the need to maintain arbitration as an effective and therefore attractive alternative to litigation, while still ensuring that its use is predicated on the consent of the parties and that the resulting awards command respect. A priori, at least, all participants – parties, counsel, arbitrators, arbitral institutions – have an interest in ensuring that arbitration delivers the various advantages associated with it, notably speed, economy, informality, technical expertise, and avoidance of national fora, while producing awards that withstand judicial challenge and otherwise enjoy legitimacy.

National courts play a potentially important policing role …

Navigating Eu Law And The Law Of International Arbitration, George A. Bermann

Faculty Scholarship

The European Union and international arbitration are two robust legal regimes that have managed to develop largely in accordance with their own respective “first principles,” and they have accordingly thrived. This article initially explains why that has been the case.

But the era of parallelism between the regimes has ended, and rather suddenly. This article identifies the two principal fronts on which tensions between EU law and international arbitration law have emerged. Interestingly, both commercial and investment arbitration are implicated.

A first front entails a conflict between the European Court of Justice's (ECJ's) expansive notions of EU public policy and …

Re-Construction Of Private Indicators For Public Purposes, Katharina Pistor

Faculty Scholarship

This chapter studies the history of the first generation of indicators of governmental institutional quality. These (international) indicators include labels such as ‘bureaucratic efficiency’ and ‘rule of law.’ This discussion also addresses the argument that it is the reversal, and not the creation, of indicators designed to justify large-scale development policies by leading multilateral agencies that is problematic. This chapter emphasizes the importance of using alternative data sets and making raw data easily available, in order to challenge the present assumptions instead of merely aiming to validate them and the policy choices with which they are associated with.

Sovereign Wealth Funds And Global Finance, Katharina Pistor

Faculty Scholarship

This chapter focuses on a number of specific sovereign wealth funds (SWFs) whose portfolios indicate strong interests in finance both in their home countries and abroad. It first reviews empirical evidence that shows SWFs having been major investors in Western financial intermediaries for decades. It then considers the organization and governance of SWFs, with particular emphasis on the three main schools of thought as well as the predictions one can derive from them vis-à-vis the behavior of individual actors in the global financial network: economic theories, economic sociology, and political economy. It also presents case studies that “test” these theories …

'Domesticating' The New York Convention: The Impact Of The Federal Arbitration Act, George A. Bermann

Faculty Scholarship

Much as one may try to universalize and even ‘de-nationalize’ international commercial arbitration – whether through Conventions, uniform or model laws or soft law – the phenomenon remains profoundly affected by national law and policy. That is indeed very much one of the leitmotifs of this book.

The incongruities – big and small – between domestic and international arbitration regimes typically present themselves on a purely ad hoc basis; that is to say, in specific and often isolated contexts, as when a particular case in a national court produces a result that looks anomalous from the point of view of …

Codifying Custom, Timothy Meyer

Faculty Scholarship

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …