International Law Commons^™

Expanding Our Horizons: Reflections On A Compass Of Possibilities, Corinna Barrett Lain

Law Faculty Publications

Once in a great while, I read a piece of literature and know immediately that I am reading something special. I instinctively know that the author is renowned, and I know this without even knowing who wrote whatever it is that I am reading. The words are crisp and clear, and the ideas are so provocative that it is evident that something deeply meaningful has been created, something that people will be thinking about for a long time. Such is the case with Mireille Delmas-Marty’s last lecture at the Collège de France in 2011, recently translated to English, and accompanied …

Strengthening The General Assembly, Chiara Giorgetti

Law Faculty Publications

Still fully immersed in the devastations of World War II and keenly aware of the inability of the League of Nations to prevent it, the winning nations negotiating the Charter of the new United Nations in San Francisco in April–June 1945 aimed at creating a novel international organisation that embodied a new balance of power mechanism: a system focused on having one – powerful – executive organ and a plenary organ with more of a consultative function (Department of State, 2017). Thus, on one side, the UN system provided a Security Council (SC) – with a two-­ tiered membership constituted …

National Identity And Economic Development In Market-Dominant Small Jurisdictions, Christopher M. Bruner

Scholarly Works

Small jurisdictions that are globally competitive in providing cross-border financial services—market-dominant small jurisdictions (MDSJs)—occupy fascinating and unique positions in global markets, reflecting the complexity of their linkages with major economies. This article explores how the distinctive features of MDSJs highlight important dimensions of the relationship between national identity and economic development. I review literatures that aim to explain how jurisdictions behave in the economic context, focusing on concepts of nationalism, national identity, and nation branding, and how such phenomena might impact one another. I then assess their application to the relationship between national identity and economic development in MDSJs, where …

Gender-Based Violence And Harassment At Sea, Desiree Leclercq

Scholarly Works

This Symposium contribution assesses the ability of international law to evolve to offer essential protections for workers in an increasingly globalized world. It focuses on protections for women seafarers, specifically around gender-based violence and harassment on board vessels. Even though it is the world’s oldest transnational sector, seafaring remains overwhelmingly male-dominated. Consequently, international law was not initially conceived with women seafarers in mind. Now that women have broken into the maritime profession, they count on international law to evolve in kind. Notwithstanding, they continue to face sexist, if not violent, workplaces, and report high incidents of gender-based violence and harassment …

The Unreasonableness Of The Reasonable Woman Standard: Evaluating And Reforming Sexual Harassment Jurisprudence, Richa Parikh

CMC Senior Theses

The “Reasonable Woman Standard” was first used in the 1991 case of Ellison v. Brady and has been central in shaping legal responses to sexual harassment. However, as societal norms and understandings of gender dynamics continue to evolve, as we experienced with the #MeToo movement, this “Reasonable Woman” often fails to grow with the times. I argue that this “Reasonable Woman” fails to encapsulate the complexities of sexual harassment experiences across different genders and cultural backgrounds. In this thesis, I deconstruct the historical development of the “Reasonable Woman Standard,” analyzing its roots in the “Reasonable Person Standard.” Through a combination …

China’S Strategic Calculus: A Comparative Analysis Of China’S Approaches Towards The Philippines And Vietnam In The South China Sea Dispute, Letian Wang

CMC Senior Theses

The South China Sea (SCS) dispute is a longstanding territorial conflict involving several surrounding states. In this paper, I analyze the differences in China’s policies towards the Philippines and Vietnam as China exerts its expansion into the SCS using relevant International Relations theories. The Philippines’ democratic values, alliance with the U.S., small-scale volume of trade with China, and active strategies against China all contradict China’s interests to be the regional hegemonic power. In contrast, Vietnam’s socialist regime, alliance with China, substantial trade with China, and passive strategies do not contradict China’s interests as much and even comply with them. Hence, …

A Study Of Gender Apartheid: Afghanistan And The Islamic Republic Of Iran, Golazin Safaeimojarad

Dissertations and Theses

This thesis investigates the systemic and institutionalized forms of gender-based discrimination termed gender apartheid, focusing on Afghanistan and the Islamic Republic of Iran. It argues that gender apartheid, a severe form of discrimination where women and girls are subjugated and denied fundamental rights under institutional frameworks, and Afghanistan under Taliban rule and Iran under the Islamic Republic of Iran are two prime cases of gender apartheid. Through a qualitative research approach employing case studies and a comprehensive review of legal documents, academic materials, and reports from reputable organizations, the thesis outlines how gender apartheid is not only a direct product …

Developments At The United Nations International Law Commission On Sea-Level Rise, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

Sea-level rise is a pressing global challenge that could generate catastrophic consequences for humankind. The implications for States and people all over the world are grave, making rising sea-levels a matter of utmost urgency. This paper will examine some of the challenges presented by the phenomenon of sea-level rise in relation to international law with a focus on the analysis undertaken by the Study Group on Sea-Level Rise (“Study Group”) of the United Nations International Law Commission (“ILC”).

The Role Of Data Sharing In Transboundary Waterways: The Case Of The Helmand River Basin, Najibullah Loodin, Gabriel Eckstein, Vijay P. Singh, Rosario Sanchez

Faculty Scholarship

While data and information exchanges theoretically play an effective role in the decision-making process of a shared watercourse, in practice, there are several challenges that prevent riparians from sharing data in an effective and cooperative manner. This chapter seeks to assess why the riparian nations of the Helmand River have failed to adopt an effective data exchange mechanism although both nations signed an internationally recognized bilateral water treaty in 1973. Applying a mixed study approach, the study draws on the theory of planned behavior (TPB) to interpret the main obstacles of data sharing between Afghanistan, the upstream state, and Iran, …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

The Right To Work And Africa’S Crackdowns On Street Vendors, Kaylee Morgan Roberts

Emory International Law Review

No abstract provided.

Rising Sea Levels And Rising State Interest: How The Arctic Council Should Respond To The Realities Of Climate Change And The Resulting Rise In State Interest In A Navigable Arctic, Jack Kirkpatrick

Emory International Law Review

No abstract provided.

Promoting And Reforming Kenya’S Customary Justice Systems In Criminal Cases, Daniel S. Mcconkie Jr.

Emory International Law Review

Kenya’s indigenous customary justice systems developed over time to administer African justice rooted in local community harmony. British Colonialists imposed a foreign legal system, and Kenya formally retained that system even after gaining independence in 1963. Nevertheless, ordinary Kenyans today continue to resort to customary justice systems for their legal problems, including many crimes. The 2010 Constitution requires the judiciary to promote customary justice systems because they are trustworthy and accessible. Paradoxically, though, the Constitution also forbids these customary justice systems from contravening other constitutional provisions. Therein lies the difficulty. Customary justice systems’ procedures do not always comport with …

Introduction To The Special Issue Of The Emory International Law Review, Magdalena Tulibacka

Emory International Law Review

No abstract provided.

Thunder Road: The Implementation Of The Representative Actions Directive In Europe, Alexandre Biard-Denieul

Emory International Law Review

In December 2020, the European Union adopted breakthrough legislation setting out new rules for collective redress—better known as “representative actions”—in Europe. EU Directive 2020/1828 gives representative entities the possibility to seek injunctive and/or compensatory measures on behalf of groups of consumers affected by mass harm situations. The EU Member States had until December 25, 2022 to transpose the European rules into their national legal systems. The transposition phase was expected to be key as the Directive gives significant leeway to the Member States to decide on several important procedural aspects likely to influence the overall functioning and effectiveness of representative …

The Quest For Funding Under The Dutch Wamca: Third Party Funding And The Viability Of A Procedural Fund, Xandra Kramer

Emory International Law Review

A new chapter started for collective actions with the 2020 Dutch Mass Damage Settlement in Collective Actions Act (WAMCA) and the E.U. Directive on representative actions for consumer cases. The expansion of the class action mechanism has not only raised procedural and practical questions but has also triggered debates on the funding of inherently expensive collective claims for damages. Absent appropriate public legal aid schemes, third-party litigation funding has been on the rise and commercial funding has become one of the most discussed and controversial topics in European civil justice. Developments in collective actions and funding have prompted the Dutch …

The Digitalization Of Litigation, Manuel A. Gómez

Emory International Law Review

The development of digital tools that enhance communications, security and decision making have caught the attention of international development agencies, national governments, civil society organizations, and the private sector. The United Nations Development Programme (UNDP) has highlighted the importance of digital tools as a means “to improve justice sector efficiency, transparency and access to justice[,]” while the European Commission has aligned them with “a new push for European democracy in line with the political priority of a Europe fit for the digital age[.]” With these observations in mind, this article focuses on the unique advantages and challenges presented by the …

From Uniforms To Robes: Unveiling Judicial Review Practices Of The Supreme Court Of Israel In Cases Adjudicated In Military Tribunals, Yotam Berger

Emory International Law Review

While the Supreme Court of Israel has been, historically, perceived to be inclined to intervene in national security matters, this Article reveals a notable restraint in its review of criminal cases originating in military-operated tribunals. These tribunals include courts-martial (CMs), where soldiers are prosecuted, and occupied territory courts (OTCs), where Palestinians face charges. The study examines a database designed to encompass all available relevant cases decided by the Supreme Court of Israel from 2002 to 2021. It concludes that, despite its interventionist reputation, the Court exhibits a restricted, perhaps conservative stance toward criminal cases previously adjudicated by military judges. Notably, …

States, Firms, And Their Legal Fictions: Attributing Identity And Responsibility To Artificial Entities, Melissa (M.J.) Durkee

Scholarship@WashULaw

This volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that …

Introduction To The Symposium On Digital Evidence, Melissa (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

Book Review: Rethinking Participation In Global Governance: Voice And Influence After Stakeholder Reforms In Global Finance And Health, Melissa (M.J.) Durkee

Scholarship@WashULaw

Who is entitled to contribute to rulemaking at the international or transnational levels? "Rethinking Participation in Global Governance takes an empirical tack," confronting the important and understudied—but methodologically confounding—question of how effectively to improve the representativeness of global governance. The volume’s carefully constructed qualitative studies offer a wealth of insights but few systematic or easily generalizable answers. Nevertheless, the book has much to offer, describing models and techniques to expand participation, offering examples of how various actors in the Global South were able to make use of them, then embedding this description in the push and pull of a scholarly …

Private Sector Participants In International Rulemaking: Governance Models, Melissa (M.J.) Durkee

Scholarship@WashULaw

International organizations seeking to develop a principled approach to stakeholder participation in rulemaking processes should consider for-profit stakeholders, which can be influential participants. This chapter evaluates potential governance models for their effectiveness in facilitating the benefits and restraining the harms of for-profit influence in rulemaking processes, recommending a balanced approach. A successful governance model should also acknowledge that for-profit stakeholders can use a variety of channels to communicate their input, including individual business entities, trade and industry associations, other non-governmental groups, academics and think tanks, and domestic officials. Because of these sometimes invisible links between for-profit actors and other kinds …

Key Un Committee Clears Path For Crimes Against Humanity Treaty Negotiations, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

On Friday, Nov. 22, 2024, the United Nations Sixth (Legal) Committee took a pivotal decision to advance toward negotiations on a global treaty regarding the prevention and punishment of crimes against humanity. The move is the latest in a series of discussions that has taken place over the past six years and brings States one step closer to finally closing the nearly 80-year-old gap in international law to comprehensively address these grave crimes.

We have been tracking this process together since 2021 in a Just Security series on the potential draft treaty, and in a recent article we chronicled the …

Justice Delayed Is Justice Denied: Moving Forward With A New Crimes Against Humanity Treaty, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Eleven years after the International Law Commission (ILC) began considering the topic of crimes against humanity, and nearly 80 years after the London Charter was negotiated in the ashes of World War II, will States finally begin negotiating a new crimes against humanity treaty next year? The answer is not yet clear, although an overwhelming majority of the States expressing themselves last week said “yes.” This essay is a snapshot of the current state of play and is based on our firsthand observation of the plenary debate as well as discussions with State delegates and members of civil society. Negotiations …

A Draft Treaty On Crimes Against Humanity Draws More Engagement From States, Leila Nadya Sadat

Scholarship@WashULaw

The world’s first treaty on crimes against humanity inched closer to reality as the U.N. General Assembly’s Sixth (Legal) Committee recently wrapped up the last of a series of “resumed sessions” before States decide this October whether to proceed to formal negotiations on the document. Significantly more States and regional groups intervened during the most recent session, held last month, than in 2023, and the number that support the draft increased. Representatives of civil society also were present in much higher numbers, issuing a “Joint Statement in Support of Progress toward a Crimes Against Humanity Treaty” from more than 400 …

Fragmented Futures: Publication Choices And The Evolution Of International Legal Scholarship, Melissa (M.J.) Durkee

Scholarship@WashULaw

How we produce and disseminate international legal scholarship affects can affect how international law itself develops. Fragmentation and siloing of international legal scholarship can diminish the coherence of international law as a shared social practice across national borders. It can also diminish the perceived salience of international law within the United States, contributing to U.S. propensities toward exceptionalism and isolationism. Non-traditional publication formats have equalizing and connecting functions, but there is still room for growth when it comes to aggregating scholarship across regional, linguistic, and disciplinary divides. Finding ways to do that will help international lawyers better accomplish the field’s …

Belief In War, Mary Ellen O'Connell

Journal Articles

Introductory Statement

Belief in war dominates our world. From Ukraine to Sudan to America’s ‘war on terror’, extraordinary resources are poured into militaries and arms races. The explanation for why belief in war has become prominent in foreign and security policy in Russia, the United States., China, NATO states and many other places is linked to the influence of Realist political theory. Pope St. John XXIII’s encyclical Pacem in Terris argued for honoring the alternatives to Realism – international law and institutions. It is time for an encyclical that responds directly to Realism and teaches belief in the authentic natural …

Rebalancing International Investment Law, Vera Korzun

Akron Law Faculty Publications

Several reform initiatives are currently ongoing seeking to cure international investment law from its inherent pro-investor bias. To achieve this goal, recent investment treaties contain enhanced provisions on the right to regulate and seek to increase investor compliance in such areas as environmental protection, sustainable development, and corporate social responsibility. Yet, how to reconcile the ongoing reform efforts at the international and regional levels seeking to create a new, rebalanced system of international investment law? How to achieve this proverbial system where interests of foreign investors are protected without encroaching on the rights of the host states? The answers to …

Xenophobia, The Global War On Terror, And Refugee Policy In The United States, Canada, And Western Europe, Chloe Lopez

UNF Graduate Theses and Dissertations

Xenophobia has oscillated in intensity in the United States, Canada, and Western Europe since the late eighteenth century. This pattern of fear of immigrants and refugees being harbingers of violence and criminal activity establishes itself throughout the modern history of the United States, Canada, and Western Europe despite much evidence to the contrary. In the twentieth century, the prevailing argument surrounding the creation of xenophobia centered around economics. This divergence from twenty-first century patterns can be attributed to the Global War on Terror increasing alienation of refugees and immigrants through mythmaking and the structural securitization of immigration in the United …

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Faculty Articles

No abstract provided.