International Law Commons^™

Promises Unfulfilled: How Investment Arbitration Tribunals Mishandle Corruption Claims And Undermine International Development, Andrew T. Bulovsky

Michigan Law Review

In recent years, the investment-arbitration and anti-corruption regimes have been in tension. Investment tribunals have jurisdiction to arbitrate disputes between investors and host states under international treaties that provide substantive protections for private investments. But these tribunals will typically decline to exercise jurisdiction over a dispute if the host state asserts that corruption tainted the investment. When tribunals close their doors to ag-grieved investors, tribunals increase the risks for investors and thus raise the cost of international investment. At the same time, the decision to decline jurisdiction creates a perverse incentive for host states to turn a blind eye to …

2019-20 Executive, Managing And Editorial Boards, Georgia Journal Of International And Comparative Law

GJICL Editorial Boards

No abstract provided.

No Longer Immune? How Network Theory Decodes Normative Shifts In Personal Immunity For Heads Of State, Nadia Banteka

McGeorge School of Law Scholarly Articles

The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity movements, coupled with pleas for international criminal responsibility for egregious human rights and humanitarian violations, have eroded them, particulary within international jurisdictions. These changes reflect a larger challenge to the traditional statecentric model. Although states remain the primary makers of international law, many other participants, including international organizations, courts, and non-governmental oganizations (NGOs), are crucial to the development of international legal norms …

Worldwide Frand Licensing Standard, Garry A. Gabison

American University Business Law Review

No abstract provided.

Ex Pluribus Unum? On The Form And Shape Of A Common Code Of Ethics In International Litigation, Chiara Giorgetti, Jeffrey L. Dunoff

Law Faculty Publications

In April 2019, member-states of UNCITRAL Working Group III requested the UNCITRAL Secretariat to undertake preparatory work for a Code of Conduct for Investor-State Dispute Settlement focusing on the implementation and enforceability of such a code. This groundbreaking development signals that, for the first time, a consensus exists that a code of ethics for Investor-State dispute settlement is desirable and needed. This contribution addresses three threshold questions that such preparatory work raises, namely: the preferred form of the code, the code's substantive reach, and the optimal process for bringing a code to fruition. As set out below, we urge that …

Self-Defence, Pernicious Doctrines, Peremptory Norms, Mary Ellen O'Connell

Book Chapters

From the Publisher

On 21 August 2015, British Prime Minister David Cameron authorised the killing with military force of a British national, twenty-one-year-old Reyaad Khan. Khan and two other men riding in a vehicle with him were blown to shreds by Hellfire missiles launched from a remotely piloted drone. The attack occurred in Syria, despite the fact that the United Kingdom Parliament had voted to restrict UK involvement in the Syrian Civil War. The Prime Minister declared the killings a lawful exercise of Britain’s ‘inherent right to self-defence’ against a ‘very real threat’. The British suspected Khan of recruiting individuals …

National And Transnational Constitutionalism, And The Protection Of Fundamental Human Rights, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2019 Plenary Session
Nation, State, Nation-State
1-3 May 2019
V. Hösle (editor)
Acta 22, Vatican City, 2019

From the Author

In this paper I would like to explore the complicated and ambiguous relationship between the idea of universal human rights and the idea of a nation state with its own particular identity, history, and culture. I will do so from the disciplinary perspective of law, in particular comparative constitutional law and international human rights law, by examining the basis of claims of what I will call “national constitutionalism”, focusing on the …

Informal Judicial Hierarchies: Case Assignment And Chamber Composition At The European Court Of Justice, Jens Frankenreiter

Scholarship@WashULaw

Is there a rationale behind non-random case assignment at the European Court of Justice (ECJ)? I argue that the flexible system of case assignment acts as a surrogate for a full-fledged judicial hierarchy, ensuring that the decision-making of the Court reflects the preferences of the majority of judges absent many hierarchical elements commonly observed in other judicial systems. I empirically test this hypothesis using Monte Carlo simulations of the composition of chambers during the time period 2009-2012 under alternative case assignment regimes. To proxy for judicial ideology, I use information on the political preferences of appointing Member State governments vis-à-vis …

European Union Law And International Arbitration At A Crossroads, George A. Bermann

Faculty Scholarship

It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the "fragmentation" of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually "collide." By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. …

The Legitimacy Of Economic Sanctions As Countermeasures For Wrongful Acts, Lori Fisler Damrosch

Faculty Scholarship

This essay offers an installment of what would have been a continuing conversation with David D. Caron, a close colleague in the field of international law, on themes that engaged both of us across multiple phases of our intersecting careers. The issues are fundamental ones for both the theory and the practice of international law, involving such core concerns as how international law can be enforced in an international system that is not yet adequately equipped with institutions to determine the existence and consequences of violations or to impose sanctions against violators; and how to ensure that self-help enforcement measures …

Investigating Potentially Unlawful Death Under International Law: The 2016 Minnesota Protocol, Christof Heyns, Stuart Casey-Maslen, Toby Fisher, Sarah Knuckey, Thomas Probert, Morris Tidball-Binz

Faculty Scholarship

Across every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the …

The Sources Of Immunity Law – Between International And Domestic Law, Lori Fisler Damrosch

Faculty Scholarship

The immunities regimes covered by this volume presuppose the existence of juridically equal States whose interactions are governed by international law. States engage in international relations with each other through a variety of agents, who could be individuals or legal persons; and States likewise establish international organizations for carrying out shared purposes. Each State has a domestic legal system through which State actors generate various sorts of executive, judicial and legislative practice, all of which can in principle be evidence of the international law of immunities.

The several regimes relevant to the immunities of the State itself, and of international …

Armed Conflict At The Threshold, Deborah Pearlstein

Articles

Seventeen years into the United States’ engagement in what America has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of the “armed conflict” classification under international humanitarian law (IHL). The existence of an “armed conflict” has long been understood as a proxy on/off switch of inescapable importance. When an “armed conflict” exists, lethal targeting—without regard to particular self-defensive need or immediacy of threat—is permitted as a first resort. When an “armed conflict” does not exist, it is not. Challenging the …

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

If International Law Is Not International, What Comes Next? On Anthea Roberts’ Is International Law International?, Rebecca Ingber

Faculty Scholarship

I am thrilled that the editors of the Boston University Law Review have chosen to review Anthea Roberts’ recent book, Is International Law International?, for their annual symposium. In order to answer the title’s question, Roberts develops a research project to scrutinize a world she knows well: the field of teaching international law, her colleagues, and their students. The result is a rigorous disaggregation of the multifarious ways that international law is taught across the globe, thus demonstrating the lack of universality in the study of international law.

Foreword: International Law And Policy In The Age Of Trump, Michael P. Scharf, John G. Wrench

Case Western Reserve Journal of International Law

An introduction to the issue topics, ranging from U.S.-North Korean relations and its policies toward rogue states to immigration law and human rights in the U.S.

Elements Of Its Own Demise: Key Flaws In The Obama Administration's Domestic Approach To The Iran Nuclear Agreement, Jamil N. Jaffer

Case Western Reserve Journal of International Law

The article discusses the United States' eventual withdrawal by the U.S. from Joint Comprehensive Plan of Action (JCPOA). Congressional review of the agreement helped President Donald Trump's withdrawal.

Exiting Paris: What The Climate Accord Teaches About The Features Of Treaties And Executive Agreements, Eugene Kontorovich

Case Western Reserve Journal of International Law

The article discusses the United States' withdrawal from the Paris Climate Accords, which has two features -- a protracted withdrawal period and broad multilateral structure--which keep it from having an effect as a sole executive agreement.

Klatsky Endowed Lecture In Human Rights, Catherine Marchi-Uhel

Case Western Reserve Journal of International Law

Catherine Marchi-Uheldiscusses widespread violations of human rights and international humanitarian lawm which the international community should address.

Leverage Is Everything: Understanding The Trump Administration's Linkage Between Trade Agreements And Unilateral Import Restrictions, Richard O. Cunningham

Case Western Reserve Journal of International Law

This paper offers an understanding of the Trump administration's (Administration) often-perplexing approach to international trade policy and, in particular, the Administration's repeated threats to withdraw from or renegotiate bilateral, regional and multilateral trade agreements. The central premise offered here is that all Administration trade actions--including both its approach to trade agreements and its threats or use of unilateral import restrictions--must be seen in terms of two fundamental goals. The first is to eliminate U.S. trade deficits with foreign countries (individually or collectively). The second is to restore the U.S. manufacturing sector by limiting imports and by bringing back to the …

Lunch Address: The United States' Role In International Human Rights Under The Trump Admininstration, Elisa Massimino

Case Western Reserve Journal of International Law

Elisa Massimino presents an adaptation of her speech, which focuses on role of the U.S. in the international human rights. Specific topics included praise of dictoators, withdrawal from the Human Rights Council, the need to fight to preserve and restore democracy and rule of law and the Trump Adminsitration's blocking of Muslim refugees.

Mens Rea Reform As A Demand-Side Solution To The Problem Of Sex Trafficking, Daniel Michael Criswell

Case Western Reserve Journal of International Law

Trafficking in persons has existed around the world for many years, yet the United States has only begun to take this modem form of slavery seriously in the last two decades. The nature of sex trafficking has caused confusion for the United States and others around the globe regarding how to best deal with the commercial sex industry. The failure to reduce the commercial sex industry through traditional means of prosecuting the traffickers and their victims has motivated Sweden, and consequently the United States, to pursue a different strategy: reducing the demand through the prosecution of the buyers of commercial …

Non-Appropriation, No Problem: The Outer Space Treaty Is Ready For Asteroid Mining, John G. Wrench

Case Western Reserve Journal of International Law

Has technology outrun the international law governing outer space? This dilemma presents itself as private entities become capable of space travel and new technology makes asteroid mining a reality. Although the Outer Space Treaty's "non-appropriation" principle prohibits nations from claiming sovereignty over space bodies, that restriction does not prevent resource extraction. The non-appropriation principle, interpreted alongside existing legal regimes, distinguishes between forbidden appropriation and permissible extraction. Consequently, the non-appropriation principle is most accurately viewed as a flexible premise from which the international community is free to fashion unique laws governing resource extraction in outer space.

Responding To Chemical Weapons Use In Syria, Michael P. Scharf

Case Western Reserve Journal of International Law

The article examines whether the April 2018 airstrikes against Syria may have constituted a tipping point in the evolving customary international law of humanitarian intervention in order to prevent the use of chemical weapons in Syria. Specifically, the back-and-forth movement of international law towards recognizing a limited right of humanitarian intervention, as well as the connection between customary international law and unilateral humanitarian intervention.

Sifting Through The Arbitrators For The Woman, The Minority, The Newcomer, Douglas Pilawa

Case Western Reserve Journal of International Law

This Note examines the process of choosing an arbitrator in international arbitration. Much of the debate and criticism of this process addresses the lack of diversity in arbitral tribunals around the world. Diversity in this context means not only traditional diversity (i.e. gender, race, ethnicity), but also the basic idea of adding "fresh faces " to arbitral tribunals. Yet the ethical obligation to provide a client with the best chance to prevail encourages counsel to choose a familiar, wellknown name with an established "track record" over a littleknown "dark horse. " This tension illustrates a fundamental point of friction in …

Talking Foreign Policy: North Korea Summit, Michael P. Scharf, Et Al.

Case Western Reserve Journal of International Law

A one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law Michael Scharf in which experts such as Shannon French, Tim Webster and Milena Sterio discuss North Korea's nuclear weapons test and related topics.

Talking Foreign Policy: Responding To Rogue States, Michael P. Scharf, Et Al.

Case Western Reserve Journal of International Law

A one-hour radio program hosted by Dean Michael P. Scharf, in which experts such as Todd F. Buchwald, James Johnson and Milena Sterio discuss national security in the United States in light of terrorism and rogue nations have weapons of mass desdtruction.

The Current Minefied For Immigration Practitioners: Protecting The Rights Of Clients In The Trump Era, Lisa Scott, Aleksandra Miezin, Jessica Taba, Jacob Witz

Case Western Reserve Journal of International Law

The article focuses on several anti-immigration policies of the U.S. President Donald Trump which include "America First," and "Buy American and Hire American," which have rendered the U.S. immigration system nearly impossible to navigate without an experienced, highly-skilled attorney. It mentions cancellation of the Deferred Action for Childhood Arrivals (DACA) program as a rollback on basic human rights as seen through family separations.

The Trump Administration And The International Criminal Court: A Misguided New Policy, Mileno Sterio

Case Western Reserve Journal of International Law

The article focuses on the approach of U.S. President Donald Trump' administration regarding International Criminal Court (ICC). It presents views of National Security Advisor John Bolton on Protecting American Constitutionalism and Sovereignty from International Threats.