International Law Commons^™

Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang

Maine Law Review

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for the …

Challenging The Rhetorical Gag And Trap: Reproductive Capacities, Rights, And The Helms Amendment, Michele Goodwin

Northwestern University Law Review

This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal fictions about women and their supposed lack …

Search Query: Can America Accept A Right To Be Forgotten As A Publicity Right?, James J. Lavelle

Brooklyn Law Review

Search engines have profoundly changed the relationship between privacy and free speech by making personal information widely and cheaply available to a global audience. This has raised many concerns both over how online companies handle the information they collect and how regular citizens use online services to invade other people’s privacy. One way Europe has addressed this change is by providing European Union citizens with a right to petition search engines to deindex links from search results—a so-called “right to be forgotten.” If the information contained in a search result is “inadequate, irrelevant or no longer relevant,” the search engine …

When At Loggerheads With Customary International Law: The Right To Run For Public Office And The Right To Vote, Thompson Chengeta

Brooklyn Journal of International Law

Many populist demagogues in America and Europe have spoken; and continue to speak; against human rights in their campaigns for political office. This article discusses the factors that have contributed to the current wave of populism; and the nature of the challenges that are presented by populism to democracy; human rights; and constitutionalism from an international human rights law perspective. It also focuses on President Donald Trump; who was voted President of the United States; even after he clearly and publicly indicated his support for torture and his intentions to approve it in the United States. To that end; the …

Charting A New Course In Cuba? Why The Time Is Now To Settle Outstanding American Property Claims, Marco Antonio Dueñas

Brooklyn Journal of International Law

The recent warming of relations between the United States and Cuba offered generations of Cubans; Americans; and Cuban Americans renewed hope for normalized relations. One obstacle—satisfactory resolution of property claims—stands in the way; which dates back to the Cuban government’s nationalization of all U.S. assets on the island. The Cuban Liberty and Democratic Solidarity Act of 1996 (the “Helms-Burton Act”) predicates resolution of these decades-old property claims by the Cuban government as an essential condition for the full resumption of economic and diplomatic relations between the two neighbors. Separated by only ninety miles of Caribbean Sea; but more than a …

Prosecuting U.N. Peacekeepers For Sexual And Gender-Based Violence In The Central African Republic, Sophia Genovese

Brooklyn Journal of International Law

Women and children living in armed conflict are amongst the most vulnerable populations at-risk of sexual and gender-based violence. When U.N. peacekeepers arrive to help dispel conflict; these populations believe that the soldiers in blue helmets will protect them. Instead; hundreds of women and children in the Central African Republic have reported being raped and sexually violated by U.N. peacekeepers. Despite compelling evidence to validate these claims; U.N. peacekeepers who commit these crimes are seldom held accountable. This Note discusses how to hold U.N. peacekeepers accountable for their human rights violations. This Note argues that troop-contributing countries should retain responsibility …

Investor-State Dispute Settlement: Is There A Better Alternative?, Emily Osmanski

Brooklyn Journal of International Law

As the world has transitioned from national; isolated economies with localized issues into a globalized and interconnected economy with cross-border disputes; the law has struggled to keep up. Recent trade negotiations have highlighted the difficulty states face in promoting trade; while also creating a fair; accessible; and equitable forum for producers and consumers with nationalities touching every area of the globe. For several decades; Investor-State Dispute Settlement (ISDS) has been in place to address claims brought by foreign investors against the host states. External improvements have helped support foreign direct investment and the ISDS model of dispute resolution; such as …

Environmental Reform In Africa: A Comparative Continental Union Solution Through Plastic Reform Legislation, Wynee Ngo

Brooklyn Journal of International Law

In the face of environmental turmoil; countries across the world are implementing measures to mitigate the deteriorating effects that common day practices have on the ecosystem. The European Union has implemented directives to govern plastic use on a continental scale. On the other hand; the African Union (AU) has been silent on plastic use; despite a string of African countries implementing stringent plastic reform legislation. This Note will examine the European Union and AU’s international frameworks and powers; while also detailing currently enacted EU directives and African state-level regulations. It will then conduct a comparative analysis of the AU and …

Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo

Brooklyn Journal of International Law

The complementarity principle of the Rome Statute of the International Criminal Court (ICC) is an international legal principle that governs the relationship between two; sometimes; contrasting international principles of law; namely sovereign equality of States and the international community’s duty to end impunity for international core crimes. Article 17 of the Rome Statute envisages that States maintain primary jurisdiction to investigate and prosecute international crimes; while the ICC’s jurisdiction to prosecute when States are unwilling or genuinely unable to carry out such investigations or prosecutions constitutes the exception. This article provides an analysis of this principle in the context of …

Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi

Brooklyn Journal of International Law

According to the United Nations High Commissioner for Refugees; since 2011; the Syrian conflict has generated roughly 5.4 million refugees; while approximately 6.5 million people are internally displaced within the country; making it the largest internally displaced population in the world. Rebuilding Syria’s infrastructure; homes; and businesses will be an immense task; with cost estimates ranging between $250–$350 billion USD. The Syrian government and the international community have already started to contemplate postwar reconstruction and even wartime reconstruction; despite the ongoing fighting. This Note operates under the assumption that the Syrian government of President Bashar al-Assad will; at a minimum; …

Divergence, Convergence Or Crossvergence Of Chinese And Us Approaches To Regional Integration: Evolving Trajectories And Their Implications, Heng Wang

Research Collection Yong Pung How School Of Law

Trends in Chinese and U.S. approaches to regional integration are likely to profoundly affect other states and even the future of global economic governance. Showing a possible paradigm shift, the Belt and Road Initiative (BRI) and North American Free Trade Agreement (NAFTA) renegotiation reflect the latest major developments in China and the U.S. regarding regional integration. In particular, the U.S. pursues managed trade, shifts to bilateralism, and adopts an aggressive approach. This article analyses a core question: will Chinese and U.S. trade approaches converge, diverge or both, and why? For the analysis of the convergence or divergence, four aspects will …

The Internal Morality Of International Law, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

No abstract provided.

Volume 1, Issue 2 (2017) Inaugural Issue

International Journal on Responsibility

Contents:

Introduction: Terry Beitzel, Types of Responsibility: Challenges and Opportunities

3 – 5 Howard Zehr, Restorative Justice and the Gandhian Tradition.

6 – 26 Richard E. Rubenstein, Responsibility for Peacemaking in the Context of Structural Violence.

27 – 64 Marc Pufong, Terror, Insecurity, State Responsibility and Challenges: Yesterday and Today?

65 – 77 Ron Kraybill, Responsibility, Community and Conflict Resolution in an Age of Polarization.

78 – 96 John Fairfield, Beyond non-violence to courtship.

97 – 98 Call for papers for forthcoming issues of the International Journal on Responsibility and instructions for authors.

Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of Extended Joint Enterprise, Victoria Bo Wang

Concordia Law Review

This Article argues that the decision in Miller v The Queen [2016] HCA 30 is supported neither by common law precedent in Australia nor the historical English precedents that informed the development of Australia’s common law doctrines. It is submitted that the majority judgment misquoted old English authorities to try to equate foresight with intention and argues that the High Court of Australia engaged in judicial activism, because its decision rested predominantly on the policy views of the judges. Moreover, it is argued that the case highlighted the urgent need for law reform in Australia. The Article puts forward a …

The International Legal Implications Of Military Space Operations: Examining The Interplay Between International Humanitarian Law And The Outer Space Legal Regime, Dale Stephens

International Law Studies

In the contemporary period, many military forces rely heavily on space-based assets to conduct operations across a wide spectrum of contexts. Such reliance necessarily exposes a correlative vulnerability that such assets may be degraded or destroyed, especially in a time of armed conflict. However, the legal framework that governs military action in space during a time of armed conflict is not well explored. This article examines the interaction between International Humanitarian Law (IHL) and the Outer Space legal regime. Harmonization of legal regimes is a goal of any reconciliation project, although such harmonization may not always be readily possible. In …

Striking An International Balance Of Power: Does The United States Undermine The United Nations?, Alexia Dionne Seepersaud

Senior Theses

The purpose of this paper is to analyze the effects of the United States' unilateral actions on the credibility of the United Nations. There is a focus particularly on the United Nations' ability to maintain international peace and security through multilateral decision-making when states decide to take action outside of the organizations' authorization. In order to analyze this stand, the United States' actions in Iraq and Syria are studied. In both 2003 and 2017, the country took forceful action outside of the United Nations in response to threats to international peace and security. Analysis of states' responses to the United …

The Exclusion Trap For Women Refugee Claimants Who Escape Domestic Violence With Children, Katherine Tess Shelley

Osgoode Hall Law Journal

Women who escape domestic violence with their children are being denied refugee status in Canada on the grounds that, by fleeing with their children, they have committed the crime of child abduction. Article 1(F)(b) of the 1951 Refugee Convention, which has been imported into Canadian law, specifies that individuals who have committed serious, non-political crimes are excluded from the protections associated with being a legal refugee. Consequently, women who travel to Canada with their children risk the denial of their refugee claims solely because they chose not to abandon their children in an abusive or potentially dangerous situation. In this …

Symposium Transcript: Pepperdine Drlj Symposium 2018, Jenna King

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, M. R. Dahlan, Wolf Von Kumberg

Pepperdine Dispute Resolution Law Journal

This paper argues that the current criticisms of Investor-State Dispute Settlement (ISDS) are ill-informed, and attempts at reforming the system are misguided. The definition of ISDS itself has been, for a long time, limited to investment quasi-judicial bodies or at best arbitration. Analysis of the roots of the ever growing backlash reveals that the main causes for concern are politically negotiated investment treaties, an inherently biased system, lack of transparency, and inconsistent decision-making. Examination of the core reasons behind these complaints leads to the conclusion that the EU Commission’s solution to reform ISDS through a permanent court raises more issues …

The Cyprus Banking Haircut And Human Rights, The Way To Go?, Venetia Argyropoulou

Pepperdine Dispute Resolution Law Journal

The Cyprus Banking Haircut of 2013 (Cyprus Haircut or Haircut) was unprecedented and had devastating implications for investors. However, more than four years after the Cyprus Haircut of 2013, account holders and shareholders in Cyprus’ two largest banks at the time—Bank of Cyprus and Cyprus Popular Bank—still do not have any available recourse for their losses. Indeed, despite account holders having resorted to national courts in the Republic of Cyprus, the Court of Justice of the European Union (CJEU) and international tribunals, such as the International Centre for Settlement of Investment Disputes (ICSID). Despite making human rights’ claims in all …

Alternative Dispute Resolution In Africa: Is Adr The Bridge Between Traditional And Modern Dispute Resolution?, Catherine Price

Pepperdine Dispute Resolution Law Journal

This article advocates for using Ghana’s introduction of ADR as a model for other African countries. Like Ghana, most African countries have adopted a form of ADR based on Western nations; however, as African culture and legal systems are quite different than Western culture, modifications are necessary. Ghana’s experience shows that modern ADR can be adopted into African countries, but an understanding of the traditional mechanisms is necessary. Part II of this article provides an introduction of ADR and its historical context in Africa. Part III examines customary and modern dispute resolution. It looks at the relationship between the two …

Conceptualizing A Framework Of Institutionalized Appellate Arbitration In International Commercial Arbitration, Axay Satagopan

Pepperdine Dispute Resolution Law Journal

The absence of the option to prefer substantive appeals from arbitral adjudication is a conspicuous systemic peculiarity of the arbitral process. While this absence has for the most part been accepted without question or resistance as being an axiomatic entailment of the arbitral process, the last two decades have witnessed an increasing amount of criticism directed at it, both from scholarship as well as the business community. The criticism has been especially emphatic, in relation to international commercial arbitrations, a sizeable proportion of which pertain to complex and high stake disputes. Moreover, there has been a concurrent increase in the …

Letter From The Editer, Annie Bach Yen Nguyen

Notre Dame Journal of International & Comparative Law

The Notre Dame Journal of International and Comparative Law, Volume 8, Issue 2 (2018).

The Blessing Of Talent And The Curse Of Poverty: Rectifying Copyright Law's Implementation Of Authors' Material Interests In International Human Rights Law, Saleh Al-Sharieh

Notre Dame Journal of International & Comparative Law

The International Covenant on Economic, Social and Cultural Rights (ICESCR) grants authors the right to the protection of the material interests resulting from their intellectual works. The Committee on Economic, Social and Cultural Rights interpreted these interests to comprise the ability to achieve an adequate standard of living (as a minimum). This paper argues that copyright law provides a useful yet incomplete model for the protection of authors’ material interests. Copyright creates the legal environment necessary for establishing a market for intellectual works but does not guarantee its benefits to authors. Therefore, States Parties to the ICESCR should …

The Paris Agreement: Its Role In International Law And American Jurisprudence, Kayla Clark

Notre Dame Journal of International & Comparative Law

The Paris Agreement is the most articulate and influential international legal agreement on climate change to date. However, despite record breaking levels of international participation, the future of the Agreement remains uncertain. United States President Donald Trump's decision to remain a part of the international community's efforts on climate change has the potential to affect the scope and scale of this acclaimed treaty. In this note, I discuss the development of the Paris agreement as compared to the Kyoto Protocol, and how its construction promises to facilitate successful implementation. Additionally, given the United States' prominent international role, I discuss the …

Masthead Volume 8

Notre Dame Journal of International & Comparative Law

No abstract provided.

The European Union, The Member States, And The Lex Mercatoria, Gabriella Saputelli

Notre Dame Journal of International & Comparative Law

The phenomena linked to the "internationalization" and "globalization" of the economy prompt the demand for uniform legal frameworks in supranational governance and encourage forms of “self-regulation”. This spontaneous attempt at harmonizing law at the supranational level is often prepared by market forces and comes to add to the classical legal models while leading to the emergence of a new lex mercatoria.

The aim of this paper is to analyze the openings of the European system to the transnational production of law identified under the term "new lex mercatoria" by verifying all the factors that allow its sources of law to …

The Need For A Supranational Organization In Foreign Investment, David M. Howard

Notre Dame Journal of International & Comparative Law

While the World Trade Organization (“WTO”) does not regulate the field of foreign investment, the WTO has tried to negotiate multilateral rules on foreign investment in the past, and there are other current international agreements that contain investment provisions designed to regulate foreign investment. Even though the previous multilateral investment agreement negotiations did not come to fruition, some scholars still believe there are several practical reasons for the WTO to regulate investment. Most significantly, trade and investment are strongly linked in our globalizing world and both are complements one another, with an increase in one corresponding to an increase in …

Increasing International Legal Protections For Freedom Of Expression, Alan Wehbé

Notre Dame Journal of International & Comparative Law

The international community seems to largely agree on the fundamental nature of the freedom of expression. Even countries that do not seem, in practice, to respect the freedom of expression still tend to ratify, sign, or be party to international instruments to that end. This duality tends to simplify the legal argument, but complicate the actual practice for promoting freedom of expression worldwide. For those who agree that the United States is a leader in international affairs, shift towards a more definitive State practice reinforcing the freedom of expression is an easy sell. For those who dispute whether the United …

Refugees In The European Union: The Harsh Reality Of The Dublin Regulation, Lana Maani

Notre Dame Journal of International & Comparative Law

The refugee crisis is a highly contested and controversial issue. The world, and specifically Europe, has seen a rapid increase in the number of refugees applying for asylum. In fact, the European Union (“EU”) has received well over one million refugees: the highest number of refugees since the Second World War. The crisis is testing the EU’s main building blocks, including, most importantly, its Member States’ notion of an ever-closer union. Some Member States have been more responsive to the crisis than others. For example, Germany is the highest refugee hosting country in the EU. On the other hand, Hungary …