International Law Commons^™

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

Security Council Resolution 1887 And The Quest For Nuclear Disarmament, Usman Ahmed, Raghav Thapar

Michigan Journal of International Law

Nuclear weapons pose an increased international threat to security in the modem era. Cheap transportation and the opening of national borders for trade have made it easy for nuclear materials to cross national boundaries. Informal networks have sprouted up, facilitating the proliferation and exchange of nuclear materials and the technology required to turn those materials into weapons. Advances in technology have made it easier to enrich uranium, instilling concerns of increased nuclear weapons proliferation. These changes in technology, the development of informal nuclear networks, and lax security in safeguarding weapons by states such as Russia and Pakistan have fueled global …

Codifying Custom, Timothy L. Meyer

Scholarly Works

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 …

Negotiating With Deity: Strategies And Influences Related To Recent North Korean Negotiating Behavior , Jesse D. Steele

Pepperdine Dispute Resolution Law Journal

As images of nuclear missiles flash across television screens and news reports containing indiscernible Asian writing warn of conflict on the other side of the world, this article addresses one of the single greatest threats to global stability-the North Korean Nuclear Weapons Crisis-and assesses the negotiation strategies that have brought the world to its current situation. By looking at the historical negotiation tactics that have been utilized by each of the parties involved, particularly in light of societal norms and cultural influences, one can ascertain a great deal of insight regarding each party's respective strategies and objectives. This insight gleaned …

Save Our Sharks: Using International Fisheries Law Within Regional Fisheries Management Organizations To Improve Shark Conservation, Stijn Van Osch

Michigan Journal of International Law

Like many fish, sharks are facing unprecedented overfishing. They have been targeted both directly for their fins and caught accidentally (bycaught) in, for instance, tuna fisheries. This has led to collapsing stocks around the world. Overfishing has led to what has been termed a mass extinction among ocean species, and sharks are no exception-they are in fact especially vulnerable. As a result, many species of sharks are now listed on the Red List of the International Union for Conservation of Nature (IUCN). This problem can only be tackled through coordinated, cooperative action by all states. This Note explores one avenue …

Terminating Treaties, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Refugees And Asylum, James C. Hathaway

Book Chapters

During the late nineteenth and early twentieth centuries, European governments enacted a series of immigration laws under which international migration was constrained in order to maximise advantage for States. These new, largely selfinterested laws clashed with the enormity of a series of major population displacements within Europe, including the flight of more than a million Russians between 1917 and 1922, and the exodus during the early 1920s of hundreds of thousands of Armenians from Turkey. The social crisis brought on by the de facto immigration of so many refugees - present without authorisation in countries where they enjoyed no protection …

The U.K. Bribery Act: Endless Jurisdictional Liability On Corporate Violaters, Jessica A. Lordi

Case Western Reserve Journal of International Law

No abstract provided.

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 …

Treaty Signature, Curtis A. Bradley

Faculty Scholarship

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary …

Human Rights Legislation In The Arab World: The Case Of Human Trafficking, Mohamed Y. Mattar

Michigan Journal of International Law

In the Arab World, human rights legislation has not always enhanced human rights. In fact, many national laws have been adopted that restrict human rights. Some countries' laws regulating nongovernmental organizations (NGOs) do not allow NGOs to receive funding from foreign entities. Media laws impose various limitations on the press. Jordan is the only Arab nation to enforce a comprehensive law on combating violence against women. Jordan is also the only country that has a law on access to information. Despite these gaps in human rights legislation, many Arab countries have passed comprehensive laws to combat human trafficking since the …

Palestine Is A State: A Horse With Black And White Stripes Is A Zebra, John Quigley

Michigan Journal of International Law

The article Israel, Palestine, and the ICC by Daniel Benoliel and Ronen Perry, published in Volume 32 of the Michigan Journal of International Law, makes a case against a possible assertion of jurisdiction by the International Criminal Court over war crimes that may have been committed by persons on either side of the 2008-2009 war in Gaza. Benoliel and Perry argue that the International Criminal Court is powerless to investigate or to prosecute such war crimes, despite the strong possibility that such crimes were committed. Concern over such possible crimes has been widely expressed at the international level, including a …

International Child Abduction And Children's Rights: Two Means To The Same End, Eran Sthoeger

Michigan Journal of International Law

The Hague Convention aims to deter future abductors and demonstrate mutual respect for the laws of its member states, while presumably serving the best interests of the child. It operates as a jurisdictional mechanism by reinstating the status quo prior to the removal through the prompt return of the child to his or her place of habitual residence. This return, as clearly stated in the Hague Convention itself, bears no effect on the merits of any existing or future custody dispute between the parents. The Hague Convention demands that contracting states respect past or future decisions pertaining to custody decided …

Redefining The Supremacy Clause In The Global Age: Reconciling Medellin With Original Intent, Sarah Elizabeth Nokes

William & Mary Bill of Rights Journal

No abstract provided.

Questioning The Peremptory Status Of The Prohibition Of The Use Of Force, James A. Green

Michigan Journal of International Law

It is incontrovertible that the prohibition of the unilateral use of force is a fundamental aspect of the United Nations (U.N.) era system for governing the relations between states. Given this fact, the prohibition, as set out most crucially in Article 2(4) of the U.N. Charter, is often seen as the archetypal example of a jus cogens norm (a "peremptory norm" of general international law). Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character. Similarly, the International Law Commission (ILC) has taken this view and it is arguable that the International Court of Justice (ICJ) …

Withdrawing From International Custom: Terrible Food, Small Portions, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the …

An Emerging Norm - Determining The Meaning And Legal Status Of The Responsibility To Protect, Jonah Eaton

Michigan Journal of International Law

The responsibility to protect, from its recent nativity in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), is the latest round in an old debate pitting the principle of nonintervention in the internal affairs of states against allowing such intervention to prevent gross and systematic violations of human rights. Advocates for the concept see it as an important new commitment by the international community, injecting new meaning into the tragically threadbare promise to never again allow mass atrocities to occur unchallenged. ICISS offered the concept of responsibility to protect as a new way to confront …

Widening Our Lens: Incorporating Essential Perspectives In The Fight Against Human Trafficking, Jonathan Todres

Michigan Journal of International Law

In 2000, the international community formally launched the modern movement to combat human trafficking with the United Nations' adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol). With the Trafficking Protocol, the international community created a new cornerstone upon which to build a global initiative to combat this modem form of slavery. As the first major international treaty on human trafficking in half a century, the Trafficking Protocol represented a significant step forward. One hundred forty-seven countries are now party to the …

Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati

Faculty Scholarship

Customary International Law (CIL) is plagued with uncertainties about its sources, its content, its manipulability, and its normative attractiveness. The rise of law-making through multilateral treaties also makes the proper role of CIL increasingly uncertain. This is an opportune time, therefore, to be thinking of ways to revive and improve CIL. In a prior article, we argued that the "Mandatory View" of CIL, pursuant to which nations are barred from ever withdrawing unilaterally from rules of CIL, is functionally problematic, at least when applied across the board to all of CIL. We also suggested that CIL might be improved by …

Emergency And Escape: Explaining Derogations From Human Rights Treaties, Laurence R. Helfer, Emilie M. Hafner-Burton, Christopher J. Fariss

Faculty Scholarship

Several prominent human rights treaties attempt to minimize violations during emergencies by authorizing states to “derogate”—that is, to suspend certain civil and political liberties—in response to crises. The drafters of these treaties envisioned that international restrictions on derogations and international notification and monitoring mechanisms would limit rights suspensions during emergencies. This article analyzes the behavior of derogating countries using new global datasets of derogations and states of emergency from 1976 to 2007. We argue that derogations are a rational response to domestic political uncertainty. They enable governments facing serious threats to buy time and legal breathing space from voters, courts, …

Introductory Note To The International Centre For Settlement Of Investment Disputes: Aes Summit Generation Ltd. V. Republic Of Hungary, Charles O. Verrill Jr.

Faculty Scholarship

No abstract provided.

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter …

The Trouble With Treaties: Immigration And Judicial Law, Angela M. Banks

Faculty Publications

No abstract provided.

Identifying And Enforcing Back-End Electoral Rights In International Human Rights Law, Katherine A. Wagner

Michigan Journal of International Law

From Kenya to Afghanistan, Ukraine, the United States, Mexico, and Iran, no region or form of government has been immune from the unsettling effects of a contested election. The story is familiar, and, these days, hardly surprising: a state holds elections, losing candidates and their supporters claim fraud, people take to the streets, diplomats and heads of state equivocate, and everyone waits for the observers' reports. It is the last chapter of this story-the resolution-that remains unfamiliar and still holds the potential to surprise. The increasing focus on and importance of the resolution of contested elections, that resolution's link to …

The Problem Of Parental Relocation: Closing The Loophole In The Law Of International Child Abduction, Maryl Sattler

Washington and Lee Law Review

No abstract provided.

Power, Exit Costs, And Renegotiation In International Law, Timothy L. Meyer

Scholarly Works

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

The Post-Medellin Case For Legislative Standing, James A. Turner

Celebrating WCL Student Authors

After the terrorist attacks against the United States on September 11, 2001, the balance of power between the executive and legislative branches of government in this country shifted. President Bush expanded the executive’s unilateral authority in international affairs and war powers. Both President Bush and President Obama have extended executive power, and then staunchly protected their expansion of authority from limitation by the legislative and judicial branches. Further, Bush’s use of presidential signing statements to undermine legislative intent suggests that the executive’s power to avoid legislative input may be virtually limitless.

The Supreme Court’s 2008 Medellín v. Texas decision appeared …

The Post-Medellín Case For Legislative Standing, James A. Turner

American University Law Review

No abstract provided.

Purposeful Ambiguity As International Legal Strategy: The Two China Problem, Anthony D'Amato

Faculty Working Papers

For every definable term in international law there are clear cases and fuzzy cases. Everyone accepts that the term "state" applies to Paraguay, Poland, Portugal and over a hundred other clear cases, but does it apply to Puerto Rico, Western Samoa, the Isle of Man, the Channel Islands, Gibraltar, or the Vatican City? The word "treaty" has thousands of clear applications, but does it apply to an exchange of faxes between two governments or a handshake between two diplomats at a cocktail party? In addition to ambiguities of this kind, international law is replete with deliberately created ambiguities. One of …

A "Re-Visioned" Foreign Direct Investment Approach From An Emerging Country Perspective: Moving From A Vicious Circle To A Virtuous Cycle, Rumu Sarkar

ILSA Journal of International & Comparative Law

This Critical Essay sets forth and expands upon remarks presented at the International Law Weekend 2010 in New York, New York, which constitutes the annual meeting of the American Branch of the International Law Association (ABILA)