International Law Commons^™

Constitutional Crises Compared: Impeachment, Brexit, And Executive Accountability, René Reyes

Emory International Law Review

The United States and the United Kingdom share a common legal history and a number of fundamental constitutional values. Some of these fundamental values may occasionally come into conflict. For example, in 2019, both the United States and the United Kingdom experienced considerable legal and political upheaval as debates over the scope of executive power and the accountability of the executive branch came to the fore. In the United States, these debates culminated in the impeachment of President Donald Trump for abuse of power and obstruction of Congress. In the United Kingdom, the furor focused on Prime Minister Boris Johnson’s …

With Our Feet To The Fire: Regional Agreements As Mechanisms Of Changing International Law To Include Persons Displaced By Climate Change, Danna Yu

Emory International Law Review

With sea levels rising and large-scale natural disasters becoming more frequent because of climate change, there is an increasing number of people who have been or will inevitably displaced out of their country of origin. The current international definition of “refugee” and its application in New Zealand with the Teitiota family case prevent people fleeing their home countries due to the effects of climate change from availing themselves of protections given to traditional “refugees,” though there have been regional expansions of the traditional definition. Recently, there has been movement in the global community via the Refugee Compact and the Migrant …

Israel And The Territorial Integrity Of States, Johan D. Van Der Vyver

Emory International Law Review

The territorial integrity of States has come to be accepted as a fundamental principle of international law. The secession of a region from an existing State will be accepted in very special circumstances, but the acquisition of a territory that is included within the national borders of a State is strictly prohibited. The territorial integrity of Palestine is the central theme of this Article. The establishment of Israeli settlements in Palestine and the construction of a wall/fence by Israel within Palestinian territories has been condemned in terms of the Geneva Conventions of 12 August 1949 and by an advisory opinion …

Pandemic Nationalism, Covid-19, And International Law, Leila Nadya Sadat

Scholarship@WashULaw

This Essay explores possible reforms to the World Health Organization (WHO) considering its response to the COVID-19 pandemic. It also suggests using existing mechanisms to enforce the WHO Constitution and the International Health Regulations (IHR). The Essay focuses on three aspects of global health governance: (1) how nationalism of powerful States renders pandemic control difficult given the “weakest-link public goods” character of global health emergencies; (2) how legal and practice reforms might nonetheless strengthen and fortify the WHO’s response; and (3) how existing provisions of the WHO Constitution and the IHR might be enforced through the dispute resolution clauses in …

Justice Without Fear Or Favour? The Uncertain Future Of The International Criminal Court, Leila Nadya Sadat

Scholarship@WashULaw

This essay traces the history of the International Criminal Court from its establishment in 1998 until the current day. It briefly surveys the history of the Court’s founding and evokes many of its current challenges and innovative aspects of its jurisprudence, particularly regarding jurisdiction, immunities, and admissibility, including decisions relating to the Situations in Afghanistan, Bangladesh/Myanmar, Libya, Palestine, and Sudan. As the essay notes, although many challenges have emerged from internal difficulties the Court has faced or design elements of the Statute, external challenges arising from the geopolitical environment within which it operates exist as well. Despite these problems, which …

Asian Land Conflicts And The Great Transformation, Brian Z. Tamanaha

Scholarship@WashULaw

In The Great Transformation (1944), Karl Polanyi described the modern era in terms of the transformation of labor, land, and money into commodities, and the expansion of the market as the basic organizing principle of society—a transformation championed by liberal economic theory. This transformation brought enormous social dislocation and mass poverty, while the wealthy benefited the most. Polanyi opposed the nigh total destruction of traditional communities that had previously given meaning to peoples’ lives, and the dismal living conditions and economic insecurity of laboring masses that resulted. Central elements of Polanyi’s account are playing out today across the terrain of …

Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha

Scholarship@WashULaw

This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provides readers with a deep sense of legal pluralism and an appreciation of its complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, showing the continuity from past to present, I discuss the transformation-invention of customary law, socially embedded village tribunals, enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law …

Interpretive Entrepreneurs, Melissa (M.J.) Durkee

Scholarship@WashULaw

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial …

Welcoming Participation, Avoiding Capture: A Five-Part Framework Between Participation And Capture: Non-State Actor Participation In International Rule-Making, Melissa (M.J.) Durkee

Scholarship@WashULaw

What role should non-state actors have in the work of international organizations? It is particularly fitting that this panel is titled “between participation and capture,” because the phrase calls up the conflicting values that animate this question. When we think of non-state actors “participating” in the work of international organizations, we think about open, transparent organizations that are receiving the benefit of diverse perspectives and expertise. We may associate this phrase with process, access, and legitimacy in governance. On the other hand, when we think about non-state actors “capturing” the agenda of international organizations, we have a conflicting set of …

Introduction To The Symposium On Frederic Megret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa (M.J.) Durkee

Scholarship@WashULaw

Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …

The Rules Of The (Belt And) Road: How Lawyers Participate In China's Outbound Investment And Infrastructure Initiatives, Lawrence J. Liu

Scholarship@WashULaw

This article provides a bottom-up view of China’s Belt and Road Initiative (BRI) though an empirical examination of how and why domestic lawyers are engaged in BRI investment and infrastructure projects. Drawing on an original dataset of biographical information of, and eleven semi-structured interviews with, lawyers identified by the state as “BRI and Cross-Border Legal Experts,” I examine these lawyers’ demographic characteristics, the knowledge they rely upon in their work, and their motivations. I find that China’s BRI lawyers work and speak in ways similar to cross-border lawyers from countries like the United States. At the same time, these state-adjacent …

Crimes Against Humanity: Little Progress On Treaty As Un Legal Committee Concludes Its Work, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

The United Nations General Assembly’s legal committee again missed the opportunity to take action this year on the draft text of a new treaty on crimes against humanity proposed by the International Law Commission. The failure, in the form of a vote Nov. 18 on a draft resolution that simply took note of the draft articles, leaves a critical gap in the legal architecture for preventing and punishing mass atrocity crimes. The result deprives a range of victims and survivors the effective protection and justice they deserve.

Amicus Brief By Amnesty International And Others, Mark Gibney, Gamze Erdem Türkelli, Ashfaq Khalfan, Paula Litvachky, Ana María Suárez Franco, Sara L. Seck, Sigrun Skogly, Nicolás Carrillo-Santarelli, Jernej Letnar Černič, Tom Mulisa, Nicholas Orago, Wouter Vandenhole, Jingjing Zhang

Reports & Public Policy Documents

On September 2, 2020, six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action.

The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination. The complainants claim that their right to life is threatened by the effects of climate change in Portugal such …

Seismic Shifts: The Covid-19 Pandemic's Gendered Fault Lines And Implications For International Law, Shruti Rana

Faculty Publications

As we look towards the pandemic's end, this article examines the pandemic's impacts on the international legal order through a gendered lens. It argues that in the short-term, the pandemic reinforces public-private divides in international law, reinvigorating previous debates over the state's power in social relations-its role in protecting people from, as opposed to perpetrating, harm. It argues that in the long-term, these developments threaten to unravel the most recent gains in international law and global governance that have operated to support and expand the recognition of human rights to marginalised groups. Left unaddressed, this unraveling will further entrench such …

A Moral Defense Of Robust International Law: Introducing The Review Symposium On Carmen Pavel’S Law Beyond The State, Steven Ratner, Andreas Føllesdal

Other Publications

Do today's international lawyers and political philosophers have something to learn from one another? Do they, we dare say, share any common agendas about the future of global governance? Judging from recent work within both fields, scholars are getting around to a tentative yes. Two disciplines that worked on common issues of global concern, but on separate tracks, are now engaging with one another's work more than ever. The time is thus propitious to appraise (and yes, celebrate) important works in this interdisciplinary frame. Carmen Pavel's Law Beyond the State presents a morally grounded bold vision for a more robust …

The Worst Tax Law Ever Enacted?, Reuven S. Avi-Yonah

Articles

Some tax laws are worse than others. The 1986 Tax Reform Act is generally considered one of the best. The 2017 Tax Cuts and Jobs Act is generally considered one of the worst, although I would say it is too early to tell what its long-term impact might be, and some of its worst features (like the Code Sec. 199A deduction) might be repealed in the future.

Another example of a generally condemned tax law is the American Jobs Creation Act of 2004. This law was a must-pass piece of legislation because Congress needed to react to the sanctions imposed …

International Legal Argumentation: Practice In Need Of A Theory, Ian Johnstone, Steven R. Ratner

Other Publications

In a decentralized global system that lacks the formal trappings of domestic governance systems, most disputes between and among states and non-state actors never reach either a domestic or an international courtroom for authoritative resolution. This state of affairs continues, even with the creation of new international tribunals in recent decades. Despite, indeed because of, the relative scarcity of judicial settlement of disputes, international legal argumentation remains pervasive, but notably in a range of nonjudicial settings. States, corporations, nongovernmental organizations (NGOs), and even guerrilla groups make claims in international legal terms in political bodies like the United Nations’ organs or …

Microwaving Dreams? Why There Is No Point In Reheating The Hart-Dworkin Debate For International Law, Jason A. Beckett

Faculty Book Chapters

A critique of attempts to transpose Hart and Dworkin's legal theories to international law. I demonstrate why neither approach can provide insights into international law. Hart and Dworkin are institutional theorists, their methodologies are anchored by the need to justify the exercise of socially centralised violence. International law lacks both institutions and centralised violence, and the stabilising force these bring; it is radically indeterminate. Attempts to suppress this indeterminacy have resulted in international lawyers fragmenting into communities of practice, united by their eschatological faith in the international community. I challenge this faith.

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

The Deceptive Dyad: How Falseness Structures International Law, Jason A. Beckett

Faculty Journal Articles

Public International Law (PIL) is portrayed as an autonomous and tolerably just legal system. A determinable system of rules and principles, deployed by professionals to evaluate and constrain the global machinations of power politics. Law as an authoritative structure through which global justice can be pursued. This entrenches a comforting, but false, progress narrative; and obscures the limitations of pursuing progressive change through international law. PIL is structured by false necessity and false contingency. These interact to create the Deceptive Dyad, which disguises the radical indeterminacy of PIL. PIL’s purported demands, however meticulously crafted, do not effect change in the …

Governing Science And Technology Under The International Economic Order: Regulatory Divergence And Convergence In The Age Of Megaregionals By Shin-Yi Peng, Han-Wei Liu And Ching-Fu Lin, Henry S. Gao, Weihuan Zhou

Research Collection Yong Pung How School Of Law

Trade and technology have a long history of interdependence. It was the trade along the ancient silk road that helped to spread the technologies of China – such as paper-making, gun power, compass, and moveable type printing – to Europe. These technologies helped to launch the Renaissance, the Reformation, and the Great Discoveries, which in turn set in motion globalization as we know today. As we enter the third decade of the twenty-first century, the role of science and technology grows even stronger in international trade. For example, the advancement of information and communications technology (ICT) has greatly facilitated the …

Evolution Of International Investment Agreements In Africa: Features And Challenges Of Investment Law “Africanization”, Makane Moïse Mbengue, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

African States, African Regional Economic Communities (RECs), and the African Union have adopted a number of new investment instruments in recent years. Many of these instruments are highly innovative and mark a clear departure from old European-styled IIAs. The Africanization of international investment law or, in other words, the prise en main of African States and organizations to design the regulation of international investment according to their policy and development priorities has become an evident contemporary phenomenon. At the same time, the most innovative approaches can be found in intra-African IIAs, i.e., in IIAs concluded between two or more African …

Sailor-Scholar: Remembering Rear Admiral Horace B. Robertson Jr., Jagc, U.S. Navy (Ret.)

International Law Studies

This volume is dedicated to the memory of

Rear Admiral Horace B. Robertson Jr.,

JAGC, U.S. Navy (Ret.)

November 13, 1923 – November 19, 2020

Corporate Commitment To International Law, Jay Butler

Faculty Publications

Corporations are increasingly important actors in international law. But vital questions underlying this development have long gone unanswered: How and why do corporations commit to international law?

This article constructs a general account of business interaction with international legal obligation and suggests that a gateway to demystifying this persistent puzzle lies in corporate opinio juris.

Corporate opinio juris describes a company's subscription to a rule of international law, even though the company is not technically bound by that rule. This subscription functions as a kind of pledge that, once made, has sway over the company and its peers and symbiotically …

Trade, Economy, And Work: A Shared Agenda For A Stronger Economic Future, Alvaro Santos, Christopher Wilson

Georgetown Law Faculty Publications and Other Works

The economies of the United States and Mexico have become inextricably linked. For both countries, the other is their top trading partner, with an annual value of $616.38 billion in 2019. Beyond cross-border trade, however, our global competitiveness is linked due to the depth of manufacturing integration. As a result, job creation and export growth are largely regional enterprises. Well over a billion dollars in commerce crosses the border each day, and the GDP of the six Mexican and four U.S. border states is larger than the GDP of all but the three largest countries in the world.

The new …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Georgetown Law Faculty Publications and Other Works

Digital sovereignty—the exercise of control over the internet—is the ambition of the world’s leaders, from Australia to Zimbabwe, a bulwark against both foreign state and foreign corporation. Governments have resoundingly answered first-generation internet law questions of who if anyone should regulate the internet—they all will. We now confront second generation questions—not whether, but how to regulate the internet. We argue that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy’s dreaded antagonist. As international law scholar Louis Henkin taught us, sovereignty can insulate a government’s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, …

Media Freedom And Technological Change, Vivek Krishnamurthy, Mark Latonero, Rachel Kuchma, Elif Nur Kumru, Geneviève Plumptre

Publications

No abstract provided.

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

Publications

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

Publications

No abstract provided.

Copyright And Disability, Blake E. Reid

Publications

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.