International Law Commons^™

Faustian Perspective On Digitization: Making A Deal With The Devil, Lucie Guibault

Articles, Book Chapters, & Popular Press

Digitization of library material, archives and museum collections, arts organizations repositories is progressing rapidly, and opens up new possibilities of accessing, using and re-using the knowledge embodied in cultural heritage. By giving new purpose and function to works, it enhances the value of the public domain and enriches the public sphere. However, digitization also creates the conditions for the rise of new proprietary entitlements over cultural objects. Such ‘informational monopolies’ are often justified as necessary to recoup the high costs of digitization, or as the basis to provide additional sources of income for the cultural institutions. At the same time, …

Unasur: The Newest 'Global Player' Or Neo-Boliverian Fantasy?, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The Union of South American Nations (Unasur) presents the most recent vision for trade liberalization and political, economic, and social integration amongst South American countries. Unasur has set 2019 as the year by which it hopes to accomplish many of its goals, such as full regional integration and tariff elimination. But, as 2019 slowly approaches, it remains to be seen whether Unasur will in fact be able to reach these goals. While Unasur’s future is certainly compelling, before heralding Unasur as the long-awaited panacea for pure regional integration, important lessons can be drawn from previous attempts at and iterations of …

Opt-Out Process For Developing Countries, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The Carbon Majors Funding Loss and Damage report by the Heinrich Böll Foundation and Climate Justice Programme proposes an international funding mechanism for loss and damage that would be funded by private and state actors that contribute significantly to GHG emissions. This paper explores special rules for state owned companies from developing countries that would be required to contribute to the proposed funding mechanism.

Climate Geoengineering And Dispute Settlement Under Unclos And The Unfccc: Stormy Seas Ahead?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper considers the potential for the UNCLOS and UNFCCC regimes to be faced with disputes at the intersection between the management of climate change and ocean governance. Using the example of geo-engineering, the chapter considers how tensions between climate mitigation and management and conservation goals are likely to be addressed under the two regimes. The paper explores the capacity of the existing dispute resolutions mechanisms under the two regimes to deal with these tensions, conflicts and overlap.

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew Waxman

Scholarly Articles in Law Reviews & Journals

As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for …

Regulation 55 And The Rights Of The Accused At The International Criminal Courts, Susana Sacouto, Katherine Cleary Thompson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Protection Of Geographical Indications In The Inter-American Convention, Christine Farley

Scholarly Articles in Law Reviews & Journals

The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections. Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member …

The Protection Of Geographical Indications In The Inter-American Convention, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections.

Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member …

The G20 And Africa: A Critical Assessment, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

The increased globalisation over the last 20 years has made effective global economic governance more important than ever. This period has witnessed the rise of a number of new international governance actors, such as the Group of Twenty (G-20) and the Financial Stability Board. The paper proposes a five-part test to evaluate how the existing global governance actors serve the interests of all stakeholders in the global economy.

The test is based on five factors indicating good global governance. These are the goals relating to global economic governance being followed by the governance entity, respect for applicable international legal principles, …

Foreword, The Future Of International Criminal Justice, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

International criminal law attempts to sanction crimes that have a global nature and impact. After World War II, the international community came together to begin addressing important international issues, including preventing future war and non-war related atrocities and crimes. From the International Military Tribunals established in the wake of World War II to the world's first permanent International Criminal Court (ICC), a number of international bodies, treaties, and statutes have been formed in an effort to effectively administer criminal justice on an international level. Yet the administration and application of international criminal justice has faced significant hurdles and there are …

Implementing Human Rights In Closed Environments Through The United Nations Convention Against Torture, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

Closed environments pose a major challenge to the full and effective implementation of human rights norms and conventions. However, many conventions contain mechanisms that can be used to further advance implementation of human rights in those closed environments. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) has several mechanisms in place that play an important role in enforcing and implementing human rights obligations. Along with the creation of a supervisory organ, the Committee against Torture (the Committee), the Convention provides a framework for: State Party reporting and concluding observations (COBs) under …

Civil Consequences Of Corruption In International Commercial Contracts, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The United States legal system seeks to prevent and prohibit bribery and corruption through a myriad of laws, regulations and policies. Anti-corruption jurisprudence is more developed in the context of public sector contracts where the United States criminalizes bribery of public officials through 18 U.S.C. §201 (Bribery of Public Officials and Witnesses). In addition, the United States was the first country to criminalize bribery of foreign government officials in 1977 with the passage of the Foreign Corrupt Practices Act (FCPA). The FCPA has since been amended to comply with the adoption of the OECD Convention on Combating Bribery of Foreign …

The Most Important Cases Of The Inter-American Commission On Human Rights, Richard Wilson

Scholarly Articles in Law Reviews & Journals

The Inter-American Commission of Human Rights (IACHR), together with its companion body, the Inter-American Court of Human Rights (IACtHR), are autonomous organs of the Organization of American States (OAS). The IACHR promotes and protects human rights in the Western Hemisphere. Created by the OAS in 1959, the Commission has its headquarters in Washington, D.C. Together with the Court, established in 1979 in San Jose, Costa Rica, the Commission has emerged as a model of international human rights and humanitarian law, as well as of individual rights.Since its inception, the Commission has made extraordinary progress. Through its 55-year history, it has …

Remarks: The Tension Between Law And Politics: Can The Icc Navigate A Multi-Polar World?, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Keynote: Sustaining Society In The Anthropocene Epoch, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. Intergovernmental and non-governmental international organizations act with autonomy, apart from nations. To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy …

The Resilience Principle, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Resilient self-help is essential in coping with life’s upsets. This essay explores the prospect of recognizing Resilience as a Principle of Law. The propositions set forth here were debated at two conferences held in Brasilia, in December of 2013. The first, for legislators, was convened in the Senate of Brazil by the National Congress’ Joint Permanent Committee on Climate Change, and the second, for judges, was convened by the Federal Judicial Council’s Judicial Studies Center (Conselho da Justiça Federal Centro de Estudos Judiciários) and the High Court of Brazil (Superior Tribunal de Justiça). This eJournal of the IUCN Academy of …

The Spratly Islands Dispute: International Law, Conflicting Claims, And Alternative Frameworks For Dispute Resolution, Robin Gonzales

Calvert Undergraduate Research Awards

The Spratly islands dispute is a regional maritime territorial sovereignty dispute which involves six countries in the South China Sea – China, Taiwan, Vietnam, Philippines, Malaysia and Brunei. Underscored by the prospects of large natural energy reserves, control of strategic global maritime areas, and shifting global power dynamics, the dispute has significant international geo-strategic, economic, political and legal implications. This Honors Thesis evaluates the international legal standards for resolving maritime sovereignty disputes, provides a historiography of the six countries’ competing claims, and analyzes the legal soundness of their claims. This thesis also proposes and examines potential political and diplomatic frameworks …

Unsatisfying Wars: Degrees Of Risk And The Jus Ex Bello, Gabriella Blum, David Luban

Georgetown Law Faculty Publications and Other Works

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within …

Revisiting The Tax Treatment Of Citizens Abroad: Reconciling Principle And Practice, Michael S. Kirsch

Journal Articles

In an increasingly mobile world, the taxation of citizens living abroad has taken on increased importance. Recent international administrative developments — most notably, the weakening of foreign bank secrecy and expansion of global information sharing norms — have further raised the profile of this issue. While U.S. law traditionally has taxed U.S. citizens living abroad in the same general manner as citizens living in the United States, a number of scholars have proposed abandoning the use of citizenship as a jurisdictional basis to tax. In its place, they would apply residence-based principles — i.e., exercising full taxing rights over U.S. …

China-African Investment Treaties: Old Rules, New Challenges, Won Kidane

Faculty Articles

This paper analyzes the existing China-African BITs and puts forward some suggestions for its improvement. The extraordinary rise in the last decade of Chinese investment in Africa continues to be a subject of profound curiosity. That is largely because it defies the centuries-old norm on who invests where. Traditionally, the bulk of foreign investment had flowed North-South but rarely South-South. Whenever and wherever it occurred, the means of its protection ranged from direct military intervention to a bona fide and equitable legal framework. China had experienced the full range of treatments in its long history of dealings with the West, …

The China-Africa Factor In The Contemporary Icsid Legitimacy Debate, Won Kidane

Faculty Articles

The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa's largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment …

The Turn To Corporate Criminal Liability For International Crimes: Transcending The Alien Tort Statute, James G. Stewart

All Faculty Publications

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel …

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Faculty Publications

Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

War Is Governance: Explaining The Logic Of The Laws Of War From A Principal-Agent Perspective, Eyal Benvenisti, Amichai Cohen

Michigan Law Review

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. …

The Subversion Of State – To State Investment Treaty Arbitration, Jarrod Wong

McGeorge School of Law Scholarly Articles

State-to-state arbitration provisions in bilateral investment treaties and other international investment agreements (collectively called BITs here) have been little used—and rightly so—given the introduction of investor-state arbitration provisions in the same BITs. In a handful of cases, however, some states have sought to resurrect state-to-state arbitration, either to contest issues already decided in separate investorstate arbitral proceedings, or else to stave off such proceedings. Most recently and controversially, in Ecuador v. U.S., Ecuador initiated arbitration against the United States under the U.S.-Ecuador BIT to (re)arbitrate an issue that had arguably been determined against Ecuador in a separate prior arbitration between …

An Introduction To The Symposium And An Examination Of Morrison’S Impact On The Presumption Against Extraterritoriality, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

Contemporary Practice Of The United States Relating To International Law, October 2014, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Condemns Russia’s Use of Force in Ukraine and Attempted Annexation of Crimea • In Wake of Espionage Revelations, United States Declines to Reach Comprehensive Intelligence Agreement with Germany • United States Defends United Nations’ Immunity in Haitian Cholera Case • French Bank Pleads Guilty to Criminal Violations of U.S. Sanctions Laws • D.C. Circuit Strikes down Administrative Order Requiring Divestment by Foreign-Owned Corporation • United States Adopts New Land Mine Policy • United States Claims That Russia Has Violated the INF Treaty

Who's In Charge Of Global Finance?, Michael S. Barr

Articles

The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …

Contemporary Practice Of The United States Relating To International Law, July 2014, Kristina Daugirdas, Julian Davis Mortenson

Articles

United States Negotiates Prisoner Exchange to Secure Release of U.S. Soldier Held in Afghanistan • United States Refuses to Grant Visa to Iranian UN Envoy • Multilateral Naval Code of Conduct Aims to Prevent Unintended Conflict in Contested Areas of East and South China Seas • Senate Approves Treaties to Regulate Fishing • United States Indicts Chinese Military Officials for Economic Espionage • U.S. Supreme Court Declines to Terminate Long-Running Efforts to Force Argentina to Pay Defaulted Sovereign Debt • United States Condemns Uganda’s Antigay Law as Violating Human Rights • President Barack Obama Certifies That U.S. Peacekeepers in Mali …