International Law Commons^™

Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge

Faculty Scholarship

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress's constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress's constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to "define …

Bank Resolution In The European Banking Union: A Transatlantic Perspective On What It Would Take, Jeffrey N. Gordon, Wolf-Georg Ringe

Faculty Scholarship

The project of creating a Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework and a common resolution scheme has been reached with difficulty. However, the resolution framework is weak, underfunded and exhibits some serious flaws. Further, Member States' disagreements appear to rule out a federalized deposit insurance scheme, commonly regarded as the necessary third pillar of a successful Banking Union. This paper argues for an organizational and capital structure substitute for these two shortcomings that can minimize the systemic …

Theorizing Precedent In International Law, Harlan G. Cohen

Scholarly Works

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a …

Review Of Sovereign Defaults Before International Courts And Tribunals, John A. E. Pottow, Emily Iversen

Reviews

This book review probes Michael Waibel’s new book, Sovereign Defaults Before International Courts and Tribunals. Waibel's project is ambitious, exploring international attempts to address sovereign defaults over the past century and a half. Through painstaking and comprehensive historical analysis, Waibel shows how we've been here before -- a sober reminder for those thinking Argentina is simply part of a new fad in financial default. With the UN now turning its attention to sovereign debt issues, this study is especially timely. Although somewhat disappointing in the lightness of its normative content, the book should nevertheless prove helpful to those considering the …

Distributing The Responsibility To Protect, Monica Hakimi

Faculty Scholarship

Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights abuses – genocides, ethnic cleansings, crimes against humanity, and systemic war crimes – occur with alarming frequency. And the international response is often slow or ineffectual.

The most recent development for addressing this problem is the ‘responsibility to protect’, an idea that has received so much attention that it now goes simply by R2P. R2P stands for two basic propositions. First, each state must protect its population from atrocities. This proposition is well …

An Introduction: Adapting To A Rapidly Changing World, Monica Hakimi, Natalie L. Reid, Samuel Witten

Faculty Scholarship

The 2015 American Society of International Law (ASIL) Annual Meeting aimed to assess how international law is and should be adapting to the profound global changes that are now underway. The Meeting took place against a dramatic backdrop of events: the rapid expansion of the so-called Islamic State in Syria and Iraq; a security and refugee crisis in the Middle East; escalating conflict in Eastern Ukraine and Crimea; an Ebola crisis in West Africa; and the build-up to a widely anticipated round of negotiations on climate change. These and similar geopolitical developments raise serious questions about the continued relevance and …

Closing Plenary: Preventing Torture In The Fight Against Terrorism – Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

I am Lori Damrosch. I am the president of the American Society of International Law. As this is our closing plenary for our 2015 annual meeting, I thought it would be appropriate for me to open it and to say a few words. First of all, it is a tradition at our annual meeting to reserve a place or two for the late-breaking events, or the ‘‘hot topics.’’

Sea Change: New Rulemaking Procedures At The International Labour Organization, Desiree Leclercq

Scholarly Works

The International Labour Organization (“ILO”) turns 100 years old in 2019, and is accordingly one of the oldest international organizations. Its mandate to promote decent work through standard-setting and norm supervision has been challenged by rapid changes in the world of work brought on by globalization, technological advancements, and an increasingly migratory workforce. These changes require the ILO to maintain a flexible system of norm creation and rulemaking that can adapt just as rapidly.

To ensure a flexible system, the ILO should be able to revise its instruments in a sufficiently responsive time. The ILO’s rule to amend its instruments, …

Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos

Faculty Scholarship

Commentary on Article 19 of the Vienna Convention on Succession of States in Respect of Treaties: Participation in Treaties Signed by the Predecessor State Subject to Ratification, Acceptance or Approval

French Abstract: Commentaide de l'article 19 de la Convention de Vienne sur la succession d'État en matière de traités. I. CARACTÉRISTIQUES GÉNÉRALES: 1. Les points épineux: à la recherche de fondements a) L’intention du prédécesseur et l’absence de liens suffisants entre le traité multilatéral signé sous réserve de ratification, d’acceptation ou d’approbation et le territoire b) L’absence d’une pratique étoffée II. LA JUSTIFICATION ET L’UTILITÉ DE L’ARTICLE 19: 1. But …

Does Animal Welfare Trump Religious Liberty? The Danish Ban On Kosher And Halal Butchering, R J. Delahunty

San Diego International Law Journal

Western European governments since the eighteenth century Enlightenment have frequently enacted laws and regulations that have adverse effects (sometimes intended) on traditional Jewish ritual practices, including Sabbath observance, dress, and dietary practices. Regulations of the latter kind have often been adopted in the name of sparing animals from the purportedly cruel and inhumane methods used in the Jewish ritual slaughtering of cattle. Last year, the Danish Ministry of Food and Agriculture issued regulations that require the stunning of cattle before they can be slaughtered. Defended on the grounds of animal welfare, the regulations had the foreseen effect of precluding the …

Too Porous For Protection? Loopholes In Eb-5 Investor Visa Oversight Are Cause For National Security Concern, Christine Ryan

San Diego International Law Journal

This Comment examines whether continuation of the EB-5 Visa Program, as it currently stands, must be assessed in light of national security concerns. Part II will discuss the basics of acquiring an EB-5 Visa. Part III will discuss the changes in EB-5 requirements since the program was created, the recent surge in demand for EB-5 visas, and problems of EB-5 fraud. Part IV will examine the shift in perceived national security threats since the creation of the EB-5 Program and recent actions by CFIUS. Part V will address several shortcomings of the EB-5 Program and conclude that the EB-5 Visa, …

Protecting Small Businesses Against Trademark Bullying: Creating A Federal Law To Remove The Disparity Of Leverage Trademark Holders Maintain Over Small Businesses, Anthony James Dispoto

San Diego International Law Journal

This Comment will first seek to understand the problem of overactive trademark policing by starting with a brief introduction to trademarks, trademark bullying, and the modern methods that companies use against trademark bullying. Second, this Comment will make a comparative analysis of the United States federal and state statutory provisions, proposed legislation from Minnesota, a trademark reform theory from William McGeveran, and current trademark statutory provisions in the United Kingdom. After analyzing the most pertinent provisions of the active and proposed domestic trademark laws and the trademark law from the foreign jurisdiction, this comment will seek to solve the problem …

V. 16-2, 2015 Masthead

San Diego International Law Journal

No abstract provided.

Proportionality In Perspective: Historical Light On The Law Of Armed Conflict, Jeremy Rabkin

San Diego International Law Journal

The argument of this article is that the proportionality rule in AP–I does express a doctrine that has real roots in western military practice, but it was not traditionally understood as the severe constraint on military operations that the Red Cross propounds. The western States at the Geneva drafting conference did not resist the proportionality rule. In fact, they were active sponsors of that formulation. They understood that rule to be consistent with past practice, including most Allied tactics in the world wars. At the time of the drafting conference, World War II was still within the personal memory of …

Regulating Access To Traditional Knowledge And Genetic Resources: The Disclosure Requirement As A Strategy To Combat Biopiracy, Paul Kuruk

San Diego International Law Journal

The objective of this Article is to examine the disclosure requirement as a measure to enhance the protection of traditional knowledge and genetic resources. Section Two illustrates the negative effects of biopiracy drawing on selected cases from Africa, India and the Americas while Section Three describes the international regime governing access to genetic resources and related traditional knowledge including rules on prior informed consent, mutually agreed terms and the fair and equitable sharing of benefits. Section Four traces the evolution of the obligation to disclose from provisions in national model laws and a draft treaty on folklore prepared by WIPO, …

A Comparison Of The Jurisprudence Of The Ecj And Efta Court On The Free Movement Of Good In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfue And Article 11 Of The Eea?, Jarrod Tudor

San Diego International Law Journal

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

Autonomous Weapons And International Humanitarian Law: Advantages, Open Technical Questions And Legal Issues To Be Clarified, Marco Sassoli

International Law Studies

This contribution argues that autonomous weapons systems may have advantages from the perspective of ensuring better respect for international humanitarian law (IHL). This may be the case if they are one day capable of perceiving the information necessary to comply with IHL, can apply IHL to that information, and if it can be ensured that they will not deviate from the ways in which humans have programmed them. In the view of the author, targeting decisions do not require subjective value judgments a machine would be unable to make. In order to ensure IHL is respected with regard to use …

Mind The Gap: Can Developers Of Autonomous Weapons Systems Be Liable For War Crimes?, Tim Mcfarland, Tim Mccormack

International Law Studies

A recurrent response to the development of increasingly autonomous weapons systems involves questions of accountability for serious violations of the law of armed conflict. Opinion is divided across a spectrum ranging from claims of an accountability vacuum and consequent calls for a complete ban to assertions that the weapons will present no new challenges and that the existing legal framework is capable of adaptation to emerging technologies. This article focuses on the expanded role played by developers of autonomous weapons systems. It describes the novel contributions made by developers of these advanced systems that raise the potential for them to …

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

International Law Studies

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 great challenges, however, with regard to law of armed conflict rules regulating the use of weapons. To adapt existing law to meet those challenges, we propose a three-tiered approach …

Hamoked: Center For The Defense Of The Individual V. Minister Of Defense, Elyakim Rubinstein, Esther Hayut, Noam Sohlberg

Translated Opinions

The petition concerned the Respondents’ authority to employ reg. 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Reg.119 or the Regulation) in a manner that would permit the forfeiture, demolition and sealing off of the homes of those suspected of involvement in hostile activity against the State of Israel. The Petitioners sought a declaratory order stating that the use of Reg. 119 in that manner and for such purposes is unlawful, inasmuch as, in their view, it contravenes international law and Israeli constitutional and administrative law.

The High Court of Justice (per Justice E. Rubinstein, Justices N. Sohlberg and …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

American And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Georgia Journal of International & Comparative Law

No abstract provided.

Minelaying And The Impediment Of Passage Rights, Wolff Heintschel Von Heinegg

International Law Studies

Since their first extensive use in the 1904–05 Russo-Japanese War naval mines have continued to pose a considerable threat to innocent shipping. States reacted by adopting the 1907 Hague Convention VIII, which has been the only international instrument on the matter to date. In view of the fact that more than 80 percent of imports and exports are shipped by sea, freedom of navigation and, in particular, transit and archipelagic sea lanes passage rights must be preserved to the greatest extent possible. The present article deals with the question of whether international rules and principles provide effective protection of international …

Appendix C - Office Of The United States Trade Representative Washington, D.C.-Fact Sheet, "Special 301" On Intellectual Property, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

Panel Iii--General Discussion, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

International Trade In Services From The Japanese Viewpoint, Masato Dogauchi

Georgia Journal of International & Comparative Law

No abstract provided.

Trade In Services--Perspective Of The Developing World, Peter Gakunu

Georgia Journal of International & Comparative Law

No abstract provided.

Trade In Telecommunications Services, Jonathan D. Aronson

Georgia Journal of International & Comparative Law

No abstract provided.

Perspective Of The Private Sector--Banking, F. William Hawley

Georgia Journal of International & Comparative Law

No abstract provided.

Multilateral Negotiations On Trade In Services: Concepts, Goals, Issues, Bernard Ascher

Georgia Journal of International & Comparative Law

No abstract provided.