International Law Commons^™

Dissertation Submitted To Satisfy The Requirements Of The S.J.D. Program, Itay Peer

SJD Dissertations

This dissertation consists of the following articles:

• The Need to Modernize the Personal Services Income Source Rule
• To Be or Not To Be an American - The Million Dollar Question
• The Need for an International Tax Reform - Taxation of US Headquartered Multinationals

Procedural Jus Cogens, Anthony J, Colangelo

Faculty Journal Articles and Book Chapters

Jus cogens are a species of supernorm in international law. They are universally binding and trump all contrary rules—such as treaties and customary international law. They are typically framed in terms of substantive prohibitions: no genocide, no slavery, no crimes against humanity, etc. This Article seeks to identify a procedural jus cogens; namely, the right to due process of law made up of notice, a hearing, and an impartial and independent decisionmaker. To do so, it draws from what are called “general principles of international law”; that is, principles common to legal systems around the world, which make up a …

How El Salvador Has Changed U.S. Law By A Bit: The Consequences For The Ucc Of Bitcoin Becoming Legal Tender, Brian Mccall

Faculty Articles

On June 8, 2021, the Congress of El Salvador passed a law that changed American commercial law.How could a foreign country change U.S. law? El Salvador’s Congress voted to confer “legal tender” status upon the cryptocurrency Bitcoin.The law took effect in El Salvador on September 7, 2021;starting that day, Bitcoin could be used to pay taxes4 and buy goods and services in El Salvador. As the first country to adopt Bitcoin as legal tender, El Salvador made world history and sparked many debates and predictions about the effects its decision may have on the Central American nation and its economy.Beyond …

The Rise Of 5g Technology: How Internet Privacy And Protection Of Personal Data Is A Must In An Evolving Digital Landscape, Justin Rabine

Catholic University Journal of Law and Technology

No abstract provided.

The Application Of The Right To Be Forgotten In The Machine Learning Context: From The Perspective Of European Laws, Zeyu Zhao

Catholic University Journal of Law and Technology

The right to be forgotten has been evolving for decades along with the progress of different statutes and cases and, finally, independently enacted by the General Data Protection Regulation, making it widely applied across Europe. However, the related provisions in the regulation fail to enable machine learning systems to realistically forget the personal information which is stored and processed therein.

This failure is not only because existing European rules do not stipulate standard codes of conduct and corresponding responsibilities for the parties involved, but they also cannot accommodate themselves to the new environment of machine learning, where specific information can …

Appointing Arbitrators: Tenure, Public Confidence, And A Middle Road For Isds Reform, Thomas D. Grant, F. Scott Kieff

Michigan Journal of International Law

Many governments now join academics and activists in questioning whether ad hoc tribunals, which comprise private individuals holding no tenured role on a court, ought to be entrusted with deciding cases, where the resultant awards sometimes impose significant financial burdens on the respondent State, constrain the State’s regulatory choices, and affect the interests of third parties. Investor-State dispute settlement (ISDS), during the great expansion of its practice over the past quarter century, has relied on party-appointed arbitrators to constitute the ad hoc tribunals that hear and decide cases that investors bring. Moved by a turn of public sentiment in recent …

Listening To Dissonance At The Intersections Of International Human Rights Law, C. Cora True-Frost

Michigan Journal of International Law

Within the United Nations (UN) human rights system, there are ten human rights treaties, each with its own treaty body or “Committee” that claims to offer the most authoritative interpretation of its corresponding treaty. Rather than resolving contests for primacy, this arrangement often generates conflicting interpretations of certain human rights.

This Article is the first to shed light on conflicts between treaty bodies’ interpretations within the UN human rights system and to confront the question of how to resolve such conflicts at the intersections of international human rights law. The Article analyzes three case studies of such conflicts: 1) clashing …

Rejecting Customary Regression: Unilateral Humanitarian Intervention & The Evolution Of Customary International Law, Elisabeth J. Brennen

Michigan Journal of International Law

Humanitarian intervention is perhaps one of the most important topics in international affairs. It raises questions of morality and militarism, becoming a platform for sharp debate in international law. This note discusses both the moral and legal questions presented by unilateral humanitarian intervention (“UHI”). It argues that UHI is antithetical to the progression of customary international law due to customary international law’s evolutive nature and the ongoing importance of decolonization. UHI is not only normatively undesirable, but the particular normative criticisms of the doctrine – that it is regressively imperialist and neo-colonial – render it fundamentally incompatible with customary international …

Grotian Moments And Statehood, Milena Sterio

Law Faculty Articles and Essays

Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorist attacks, or natural catastrophes. This Article applies the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In Part II, this Article analyzes the Grotian Moment theory while distinguishing it from other types of customary law formation. Part III focuses on the legal theory of statehood and each of its constitutive elements. Part IV discusses whether any such elements of statehood …

The War In Ukraine And The Legitimacy Of The International Criminal Court, Yvonne Dutton, Milena Sterio

American University Law Review

The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC or “Court”). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (“OTP”) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.

This Article argues that the unique situation surrounding state support for …

Table Of Contents

Seattle University Law Review

Table of Contents

The Invasion Of Ukraine: A Gross Violation Of International Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

In recent weeks, humanity has witnessed a war in Europe as a result of Russia’s unjustified invasion of Ukraine.

The Elastic Corporate Form In International Law, Julian Arato

Faculty Scholarship

No abstract provided.

South Africa’S Reformed Investment Regime As A Model For Developing Countries, John Mayer

Lewis & Clark Law Review

Beginning in 2012, South Africa decided to unilaterally terminate many Bilateral Investment Treaties (BITs) with European countries—this represented a departure from the 1990s, where South Africa, like many other developing countries, entered into BITs with wealthy, capital-exporting states in the hopes of attracting foreign direct investment. In 2015, South Africa enacted, in place of the BITs, the Protection of Investment Act, designed to protect foreign investors while also providing the state more freedom to regulate in the public interest. This Comment analyzes the history of South Africa’s BIT policy, and argues that South Africa has suffered minimally, if at all, …

Title Ix Abroad: A Proposed Framework For Extraterritorial Application, Christina Vieira Da Rosa

Lewis & Clark Law Review

Regulatory changes to Title IX made clear that the statute’s sexual assault grievance procedures do not apply to incidents that take place outside the United States. This Comment explores the reasoning underlying these 2020 regulations, which signal a departure from prior interpretations of Title IX and limit recourse for U.S. students who are sexually assaulted while studying abroad. Ultimately, this Comment argues that Title IX should have an extraterritorial reach when both complainant and respondent are affiliated with U.S. institutions. Such a change would harmonize Title IX’s underlying purpose with the practical difficulties of investigating and adjudicating conduct occurring outside …

Global Climate Governance In 3d: Mainstreaming Geoengineering Within A Unified Framework, Gabriel Weil

Scholarly Works

The failure of conventional climate change mitigation to reduce climate-related risks to tolerable levels has spurred interest in more unconventional—and riskier—climate interventions. What currently sounds like science fiction could become a reality in the not-so-distant future: planes blasting particles into the sky to block the sun, vast deserts covered with mirrors, algae sucking carbon into the depths of the ocean. Scholars tend to lump all these unconventional climate measures together in a fuzzy category called “geoengineering,” and set them apart from conventional climate change mitigation. But the characteristics of climate interferences vary across three distinct dimensions, which the mitigation-geoengineering dichotomy …

Front Matter

The International Lawyer

No abstract provided.

The European Union's Sustainable Finance Disclosure Regulation: Compliance & Policy Implications, Michael Vuong

The International Lawyer

No abstract provided.

Eiser Infrastructure Ltd V Kingdom Of Spain: The Icsid Convention, Sovereign Immunity, And Federal Court Of Australia Dealing With A Supposed "Zombie Judgment", Ylli Dautaj

The International Lawyer

This extended case note underscores a perplexing contemporary issue of public international law as it interacts or intersects with international arbitration law. The Federal Court of Australia was recently tasked to adjudicate an issue that once again exposed the nuanced question of whether the ICSID Convention preserves immunity from enforcement and execution, or only for the latter. The international case law on this point has been sparse, whereas one of the leading cases in comparative international law dates back to 1986 and comes from the Southern District of New York-the case of Liberian Eastern Timber Corporation (LETCO) v. The Government …

Digital Property Law - New Structure And New Reconciliation, G.A. Walker

The International Lawyer

No abstract provided.

Managing Cybersecurity And Technology Appropriation Threats To International Investment: Trust Or Verify, Joel P. Trachtman

The International Lawyer

No abstract provided.

Becoming In-House Counsel For Sports Teams And International Franchises, Cassie Mcbride, Caroline Perry, David Cohen, Barbara Zaragoza

California Western International Law Journal

No abstract provided.

Timeout For Sports Trademark Overprotection: Comparing The United States, European Union, And United Kingdom, Jodi S. Balsam

California Western International Law Journal

No abstract provided.

Economic Evidence, Complex Litigation, And Tier One Soccer Across Borders, Jeff Todd, R. Todd Jewell

California Western International Law Journal

No abstract provided.

May The Force Majeure Be With You: The Impact Of Covid-19 On The Force Majeure Clause In International Commercial Contracts, Natarajan, Priyasundari

Santa Clara Journal of International Law

Covid-19 has complicated the application of force majeure (FM) as an excuse for contractual non- performance worldwide. FM clauses are fundamental in allocating risk in international commercial contracts between parties in the event of similar unforeseeable circumstances. This paper aims to investigate the unintended consequences of present-day FM laws by identifying the required elements of FM clauses, tracing the historical evolution of the law, and analyzing various jurisdictional approaches to interpreting FM. Furthermore, a comparative analysis of FM laws adopted in the United States, China, and Germany are used to establish the efficacy of FM clauses in international commercial contracts …

Signature Of Multilateral Treaties: Still Meaningful In The Era Of Transnational Law?, Bantekas, Ilias

Santa Clara Journal of International Law

The function of signing multilateral treaties has always been perceived as a sine qua non element of inter-state agreements. Its evolution has witnessed several useful variations, such as definitive signatures, the ‘all states formula’, as well as the enhanced role of treaty depositaries with respect to the effect of signatures. The article argues that despite signature requirements in all multilateral treaties there is a clear trend towards alternative forms of agreement, whether between states or between states and non-state actors. The rise in the power of non-state actors has given rise to simplified forms of agreement where formalities, including treaty-type …

Miserable Comforts Or Concrete Protections: Human Rights Conventions, Treaties, Declarations, And The Rights Of Indigenous/Othered Communities—Quo Vadis?, Emeziem, Cosmas

Santa Clara Journal of International Law

It has become an annual ritual for the world—especially through the United Nations (UN)—to organize events and activities celebrating Indigenous Peoples.1 Further to this disposition, the UN has adopted a Declaration on the Rights of Indigenous Peoples.2 Equally, it is now fashionable, to include the needs, and questions, affecting indigenous peoples in our development programs and climate action activities—albeit sometimes as an addendum to the mainstream policies.3 The Sustainable Development Goals (SDGs), and the current prominence of Diversity, Equity, and Inclusion (DEI), and decolonialization language in international policy briefs, give further credence to this apparent commitment to the rights of …

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Talking Foreign Policy: "Blood & Treasure", Milena Sterio, Michael P. Scharf, Gregory P. Noone, Sandra Hodgkinson, Darin Johnson

Law Faculty Articles and Essays

Talking Foreign Policy is a production of Case Western Reserve University and is produced in partnership with 90.3 FM WCPN ideastream. Questions and comments about the topics discussed on the show, or to suggest future topics, go to [email protected].

SEPTEMBER 28, 2021 BROADCAST

Fostering Production Of Pharmaceutical Products In Developing Countries, William Fisher, Ruth L. Okediji, Padmashree Gehl Sampath

Michigan Journal of International Law

The ways in which pharmaceutical products are currently developed, manufactured, and distributed fail to meet the needs of developing countries. The recent emergence of new infectious diseases, the associated surge of healthcare nationalism, and the prevalence of substandard and falsified drugs have strengthened substantially the net benefits of augmenting the capacity of developing countries to produce such products locally. Most previous efforts to do so have foundered. The chance of success in the future would be maximized by the adoption of five strategies : (a) clarifying the zones of discretion created by the relevant treaties to ensure that local firms …