International Law Commons^™

Dialogues Of Transitional Justice: Keynote Speech, Ruti Teitel

Articles & Chapters

No abstract provided.

Whose Trojan Horse? The Dynamics Of Resistance Against Ifrs, Martin Gelter, Zehra Kavame Eroglu

Faculty Scholarship

The introduction of International Financial Reporting Standards (“IFRS”) has been debated in the United States since at least the accounting scandals of the early 2000s. While publicly traded firms around the world are increasingly switching to IFRS, often because they are required to do so by law or by their stock exchange, the Securities Exchange Com-mission (“SEC”) seems to have become more reticent in recent years. Only foreign issuers have been permitted to use IFRS in the United States since 2007. By contrast, the EU has mandated the use of IFRS in the consolidated financial statements of publicly traded firms …

Extraterritoriality And Comparative Institutional Analysis: A Response To Professor Meyer, Zachary D. Clopton, P. Bartholomew Quintans

Cornell Law Faculty Publications

In the last few years, the Supreme Court has applied the presumption against extraterritoriality to narrow the reach of U.S. securities law in Morrison v. National Australia Bank and international-law tort claims in Kiobel v. Royal Dutch Petroleum. By their terms, these decisions are limited to the interpretation of ambiguous federal statutes and claims under the Alien Tort Statute. A potential unintended consequence of these decisions, therefore, is that future plaintiffs will turn to common-law causes of action derived from state and foreign law, potentially filing such suits in state courts. These causes of action may include “human rights claims …

Kiobel And The Law Of Nations, Zachary D. Clopton

Cornell Law Faculty Publications

Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court justices addressed not the substance of ATS cases but the reach of that statute.

At least at the time of the Judiciary Act of 1789, the law of nations included not only …

Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton

Cornell Law Faculty Publications

The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest …

International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick

Cardozo Journal of Conflict Resolution

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …

Brazil's Legacy Of International Parental Child Abduction: Mediation Under The Hague Abduction Convention As A Solution, Paula Shulman

Cardozo Journal of Conflict Resolution

This Note argues that Brazil's failures to comply with the commands of the Hague Convention, to expeditiously return children abducted by a parent from their habitual residence to Brazil, can be remedied with the adoption of a new mediation model in lieu of its current system. This new mediation protocol can be modeled on those adopted in the United Kingdom and Germany. Section II of this Note provides a history of IPCA and an analysis of the problems unresolved or springing from the Hague Convention. Section III examines Brazil's accession to the Hague Convention, the Brazilian Central Authority, the body …

The Indeterminate International Law Of Jurisdiction, The Presumption Against Extraterritorial Effect Of Statutes, And Certainty In U.S. Criminal Law, Kenneth S. Gallant

Law Faculty Scholarship

It is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state's courts do not allow challenges to jurisdiction based on international law, and the state of the outsider's nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of …

Prosecutor V. Taylor, Charles Chernor Jalloh, David P. Stewart

Articles

No abstract provided.

Restoration Of Historical Memory And Dignity For Victims Of The Armenian Genocide: A Human Rights Law Approach To Effective Reparations, Richard Wilson

Scholarly Articles in Law Reviews & Journals

This article argues that United Nations human rights principles and new developments in the Inter-American Commission on Human Rights and the European Court of Human Rights suggest a route to provide effective reparation through restoration of historical memory and dignity for victims of the Armenian Genocide.

Transparency In International Economic Relations And The Role Of The Wto, Padideh Ala'i, Matthew D'Orsi

Contributions to Books

No abstract provided.

Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez

Scholarly Articles in Law Reviews & Journals

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …

The Global Right To Property, John G. Sprankling

McGeorge School of Law Scholarly Articles

Does a right to property exist under international law? The traditional answer to this question is “no”―a right to property can arise only under national law. But sweeping economic and political changes in recent decades have laid the foundation for recognizing a global right to property. Ideological opposition to property rights has faded with the end of the Cold War; China, Russia, and other socialist states have transitioned to market economies which are premised on private property; and the globalization of trade has enhanced international support for protecting property rights. Accordingly, it is appropriate to revisit the question.

This article …

The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson

Faculty Scholarship

The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under …

In Memoriam: Professor Harold G. Maier, Journal Editor

Vanderbilt Journal of Transnational Law

Professor Harold Maier founded the student-edited Vanderbilt Journal of Transnational Law in 1967 and served as its faculty adviser until his retirement in 2005. He was appointed the David Daniels Allen Distinguished Professor of Law in 1988. He was a co-author of Public International Law in a Nutshell (with Thomas Buergenthal, West Publishing) and dozens of journal articles and book chapters, some written in German, which he spoke fluently. Hired in 1965 to develop Vanderbilt's international law program, Maier sought to establish a program to train students interested in an international legal practice and to enable scholarship in international legal …

Judging Leaders Who Facilitate Crimes By A Foreign Army: International Courts Differ On A Novel Legal Issue, Mugambi Jouet

Vanderbilt Journal of Transnational Law

In one of the most significant cases in the history of international criminal law, Prosecutor v. Perisic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) effectively addressed an issue of first impression: may a military or political leader be convicted for knowingly facilitating crimes by another state's army? The influential tribunal answered this question in the negative--knowledge that the recipients of military assistance are perpetrating crimes is essentially irrelevant absent evidence that the facilitator specifically intended that crimes occur. The ICTY Appeals Chamber thus acquitted Serbian General Momilo Peridid, who had been convicted at trial of knowingly aiding and …

Soy Dominicano - The Status Of Haitian Descendants Born In The Dominican Republic And Measures To Protect Their Right To A Nationality, Monique A. Hannam

Vanderbilt Journal of Transnational Law

On September 25, 2013, the Constitutional Tribunal of the Dominican Republic retroactively interpreted the Dominican Constitution to deny Dominican citizenship to children born to irregular migrants in Dominican territory since 1929. The tribunal's decision disproportionately affects approximately two hundred thousand persons of Haitian descent. In general, states have the right to determine their nationality criteria. However, the Dominican Republic violated international law by arbitrarily and discriminatorily depriving the Haitian descendants of their Dominican nationality and by increasing the incidence of statelessness. The international community should intervene urgently and decisively on behalf of the Haitian descendants. This Note proposes specific ways …

Determining International Responsibility Under The New Extra-Eu Investment Agreements: What Foreign Investors In The Eu Should Know, Freya Baetens, Gerard Kreijen, Andrea Varga

Vanderbilt Journal of Transnational Law

The EU's newly acquired competence over foreign investment poses largely unprecedented legal challenges: the Union's unique structure and functioning are bound to raise questions about the traditional format of international investor-State arbitration. Anticipating these challenges, the European Commission has proposed a Regulation on managing the financial responsibility that arises out of such arbitrations; a revised version of this proposal was adopted by the European Parliament and the Council of the European Union. After outlining the contemporary international investment regime, as well as the relevant aspects of the EU legal system, this Article scrutinizes three problematic issues under international law that …

The United Nations Water Courses Convention On The Dawn Of Entry Into Force, Ryan B. Stoa

Vanderbilt Journal of Transnational Law

The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) entered into force in August 2014. Despite overwhelming support when signed in 1997, the ratification process has been slow. As a binding treaty, the Watercourses Convention provides hope that its provisions will articulate legal principles of transboundary water management capable of promoting cooperation and regional agreements. Despite entry into force, however, global support for the Watercourses Convention is weak, concurrent efforts to develop treaty regimes governing water resources create competition for resources and may obscure understandings of international water law, and the foundational principles …

Manifest Illegality And The Icc Superior Orders Defense: "Schuldtheorie" Mistake Of Law Doctrine As An Article 33(1)(C)Panacea, Lydia Ansermet

Vanderbilt Journal of Transnational Law

While the Anglo-American and international legal systems adhere to the rule that "a mistake of the law excuses no one," German Schuldtheorie mistake of law doctrine provides for a mistake of law excuse if a defendant's mistaken belief in the lawfulness of his conduct was unavoidable. In a distinct but increasingly overlapping area of law, domestic and international legal systems provide defenses for subordinates acting in obedience to superior orders. At the international level, the Rome Statute of the International Criminal Court allows defendants charged with war crimes to invoke the defense of superior orders if the command obeyed was …

Blackwater's New Battlefield: Toward A Regulatory Regime In The United States For Privately Armed Contractors Operating At Sea, Sean P. Mahard

Vanderbilt Journal of Transnational Law

Piracy has reemerged with a vengeance in the twenty-first century. Although it is confined primarily to the horn of Africa, piracy poses a significant problem to commercial shipping companies that need to traverse the Gulf of Aden for business. In response to modern-day piracy, shipowners have begun to employ privately armed contractors for protection. Countries and international organizations have recently developed regulations to address this growth in private maritime security. This Note analyzes both international and domestic regulatory regimes for privately armed contractors with a specific focus on the United States and Norway. This Note concludes that current U.S. regulations …

Amnesty Or Accountability: The Fate Of High-Ranking Child Soldiers In Uganda's Lord's Resistance Army, Stella Yarbrough

Vanderbilt Journal of Transnational Law

In May 2013, Uganda surprisingly resurrected its amnesty provision for two more years after having let it lapse only a year earlier. Uganda's vacillation likely represents its competing desires to grant amnesty to low-level actors in the Lord's Resistance Army (LRA) and to end impunity for decades of gross human rights violations in accordance with international criminal law. However, instead of crafting an amnesty provision that would satisfy both of these needs, Uganda reinstated the same "blanket" amnesty, or all-inclusive pardon, found in the Amnesty Act of Uganda (2000) (Act). As a result, high-level LRA actors like Thomas Kwoyelo and …

The Israeli Anti-Boycott Law: Should Artists Be Worried?, Arie Peled

Cardozo Arts & Entertainment Law Journal

Though much has been written about the economic dimension of Arab boycotts against Israel, much less attention has been paid to the implications of wider calls for a cultural boycott against Israel. Part I of this note will outline the scope of Israel's boycott problem by looking to the history of the Palestinian Boycott, Divestment, and Sanctions ("BDS") movement, while focusing in particular on the cultural aspects of this boycott. It will then discuss the current dimensions of the domestic and international cultural boycott campaigns Israel faces. Part II will analyze the Israeli legislative response to the BDS movement through …

The Problem Of Deterring Extraterritorial White-Collar Crime, Andrew B. Spalding

Law Faculty Publications

Recent reports of egregious labor practices in China and Bangladesh have called public attention to the potential harms of foreign direct investment (FDI) in developing countries. The best, or at least most obvious, tool for reducing destructive overseas business practices would seem to be the extraterritorial application of white-collar criminal law. The "holy grail" of contemporary criminal law is deterrence, and the deterrence literature is largely shaped by the paradigm of law and economics. Prominent within that literature is Polinsky and Shavell's "enforcement authority," which seeks to maximize social utility through the efficient deterrence of crime.a Guided by the principles …

Diplomacy And Its Others: The Case Of Comfort Women, Monica E. Eppinger, Karen Knop, Annelise Riles

All Faculty Scholarship

The “Comfort Women incident,” now at least several decades old, troubles the familiar view of law as a funnel for politics. Viewed as a funnel, the wide range of legal, political, cultural, and diplomatic efforts to seek or resist redress for the system of sexual slavery institutionalized by the Japanese military during the Second World War would be assessed as ultimately pushing in the same direction: toward vindicating human rights. We see in the Comfort Women incident a far more chaotic interaction of law and politics. As critical legal feminist, we are concerned with finding a truthful and ethical way …

Cultural Determinants Of Workplace Arbitration In The U.S. And Italy, Ann C. Hodges

Law Faculty Publications

Although Italy and the United States are both advanced industrial economies, the law and practice of workplace arbitration differs significantly in the two countries. This Article explores those variations and analyzes the reasons lbr the divergent evolution of arbitration. The Article concludes that histon'cal and cultural differences in legal systems and labor and employment relations are explanatory forces. While the United States could provide a more balanced system of arbitration by learning from the Italian systems greater protection of workers, given the current reality neither system seems likely to undergo significant change in the near fiiture.

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

International Law And The Future Of Peace, Diane Marie Amann

Scholarly Works

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.

Extraterritorial Financial Regulation: Why E.T. Can't Come Home, John C. Coffee Jr.

Faculty Scholarship

This Essay begins with a deliberately off-putting title: extraterritorial financial regulation. Old-time "conflict of laws" scholars would call this an oxymoron, pointing to recent Supreme Court decisions – most notably, Morrison v. National Australia Bank Ltd. and Kiobel v. Royal Dutch Petroleum Co. – that have applied a strong presumption against extraterritoriality to curb the reach of U.S. law. Even those international law scholars who are sympathetic to the regulation of multinational financial institutions might prefer to avoid this term and talk instead of "global financial regulation" because they conceptualize international financial regulation as implemented through networks of cooperating multinational …