International Law Commons^™

The Work Of International Law, Monica Hakimi

Faculty Scholarship

This Article crystallizes and then critiques a prominent view about the role of international law in the global order. The view — what I call the “cooperation thesis” — is that international law serves to help global actors cooperate, specifically by: (1) curbing their disputes, and (2) promoting their shared goals. The cooperation thesis often appears as a positive account of international law; it purports to explain or describe what international law does. But it also has normative force; international law is widely depicted as dysfunctional when it does not satisfy the thesis. In particular, heated or intractable conflict is …

Freedom Of Information Beyond The Freedom Of Information Act, David Pozen

Faculty Scholarship

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes …

Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman

Faculty Scholarship

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an “act of war,” or, more precisely, an “armed attack” triggering a right of self-defense, and how the international legal principle of “sovereignty” could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come. …

Astroturf Activism, Melissa (M.J.) Durkee

Scholarship@WashULaw

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This Article unearths the “astroturf activism” phenomenon. It offers an original descriptive account that classifies modes of business access to international officials and identifies harms, then develops a critical analysis of the laws that regulate this access. I show that the perplexing set of access rules …

Industry Lobbying And 'Interest Blind' Access Norms At International Organizations, Melissa (M.J.) Durkee

Scholarship@WashULaw

The standard approach of many international organizations (IOs) to non-governmental associations makes no formal distinctions between nonprofit private sector groups, known as trade or industry associations, and public interest groups. Thus, most IOs offer accreditation and access to both kinds of group on equal terms, without differentiating between them. I call this approach “interest blind” and use this short essay to examine its origins and consequences. Specifically, the approach has resulted in robust participation in international governance by industry and trade lobbying groups, which can affect the quality of deliberation at IOs and of the information that international officials and …

Introduction To Symposium On Industry Associations In Transnational Legal Ordering, Melissa (M.J.) Durkee, Gregory Shaffer

Scholarship@WashULaw

As globalization blurs borders and business operates across them, industry associations transpose their political activities to the global level, organizing transnationally, pursuing new sites of influence, and seeking harmonization. Their efforts affect the content of international legal norms, both public and private. This short essay introduces a symposium issue of AJIL Unbound that addresses the roles and mechanisms through which industry associations influence and shape law as part of transnational legal processes, potentially giving rise to transnational legal orders.

Why The State?, Joseph Raz

Faculty Scholarship

I offer two questions for the price of one: Why do so many jurisprudential theories focus on the state? And what is it about the State that gives it a special place in our social arrangements? I do not mean these to address all aspects of states. They are questions about the law or legal systems of states.

We have to be open to a negative answer to the second question, thus being critical of jurisprudential theories that focus more or less exclusively on the state. That need not deny that states have their own legal systems. It could merely …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg

Faculty Scholarship

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a “formality” …

In Re Akhbar Beirut & Al Amin, Monica Hakimi

Faculty Scholarship

On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal’s proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri.1 The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist’s freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.

Constructing An International Community, Monica Hakimi

Faculty Scholarship

What unites states and other global actors around a shared governance project? How does the group — what I will call an “international community” — coalesce and stay engaged in the enterprise? A frequent assumption is that an international community is cemented by its members’ commonalities and depleted by their intractable disagreements. This article critiques that assumption and presents, as an alternative, a theory that accounts for the combined integration and discord that actually characterize most global governance associations. I argue that conflict, especially conflict that manifests in law, is not necessarily corrosive to an international community. To the contrary, …

Reply On The Work Of International Law, Monica Hakimi

Faculty Scholarship

Thanks to the Harvard International Law Journal for hosting a symposium on my Article and to the four respondents for their thoughtful contributions. In the Article, I distill and then criticize a prominent view about the role of international law in the global order. The view — what I call the “cooperation thesis” — is that international law serves to foster a particular kind of cooperation, specifically to help the participants achieve their common aims and curb their disputes. Lawyers who subscribe to this view of course appreciate that international law is, like all law, often contentious in operation. But …

Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …

Markets And Sovereignty, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this article, we approach the relationship between …

V. 18-2, Spring 2017 Masthead

San Diego International Law Journal

No abstract provided.

Equitable Apportionment Of Shared Transboundary River Waters: A Case Study Of Modifications Of The Indus Waters Treaty, Waseem Ahmad Qureshi

San Diego International Law Journal

The principle of equitable utilization and the doctrine of equitable apportionment are regarded highly in customary international law for the apportionment of transboundary river waters between upper and lower riparian states. In this regard, the Indus Waters Treaty is an excellent example of the pragmatic implementation of the principle of equitable utilization, as well as of the principles of equity and justice. The treaty allottedthree eastern rivers to India and three western rivers to Pakistan in an attempt to equitably divide the shared Indus River basin and its five tributaries between the neighboring countries. However, India has now expressed an …

The European Union’S Competence On Foreign Investment: “New And Improved”?, Dominik Moskvan

San Diego International Law Journal

The general approach of the EU towards its trade and investment agenda changed in 2006 into a vigorous use of bilateral negotiations as the Union experienced opposition from emerging countries as well as the U.S. The use of bilateral agreements was seen as a reliable instrument to efficaciously realize the Union market power that was in decline. The future erosion of the EUs market position will likely continue and this will contribute to favoring the use of bilateral instead of multilateral trade agreements with the EU. However, as far as competence is concerned, should an investment treaty be signed in …

The First Competitive Video Gaming Anti-Doping Policy And Its Deficiencies Under European Union Law, Colby Stivers

San Diego International Law Journal

This Comment identifies the deficiencies of the ESL anti-doping regime and proposes solutions for compliance with international law. In addition to achieving compliance, the proposed solutions analyzed are selected to serve the values of eSports stakeholders, as well as the philosophical valuesof sports competition as a whole. Section II will identify those stakeholdersand values. Section III will identify and attempt to solve potential noncompliancewith EU treaty-based law under the European Convention on Human Rights and resolutions of the Council of Europe. Section IV will identify and propose solutions transposed from traditional sports anti-doping policies that address discrepancies with EU law …

The Dublin Regulation And Systemic Flaws, Jason Mitchell

San Diego International Law Journal

This Comment will discuss the systemic flaws in the Dublin Regulation and in the Member States asylum procedures, as well as the need for specificity in the definition of the systemic flaws; discussed in the Dublin Regulation. Section II will explain the history and source of obligation underlying the Dublin Regulation, and will also detail its development since its inception. Section III will explore the meaning of systemic flaws found in Article 3 of the Dublin Regulation. Section III will also discuss the cases decided by the European Court of Human Rights ( ECtHR ) and the European Court of …

Cuba Libre: A Verb? A Noun? Or A Cocktail?, Brian Eiselman

San Diego International Law Journal

This Article examines the nature of the history and origins of hostilities between the United States and Cuba leading up to the Embargo, and the Constitutional issue regarding the possible termination of the Embargo in view of the Helms-Burton Act. While President Kennedy enacted the Embargo unilaterally, the Helms-Burton Act usurped the power to regulate and conduct international affairs from the President, requiring a two-thirds Senate majority in order to lift or modify the Embargo.[] Arguably, this provision violates both the United States Constitution as well as International Law.[] Under the Obama Administration there was a new attitude towards Cuba, …

V.19-1, 2017 Masthead

San Diego International Law Journal

No abstract provided.

Vatican Condemnation Of Nazi War Crimes: Pope Pius Xii’S Denunciation Of Wartime Atrocities, Donald H. J. Hermann

San Diego International Law Journal

The debate on the silence of Pope Pius XII has been rekindled by recent close examination of the Pope’s 1942 Christmas Message denouncing totalitarianism and the killing of persons “only because of their nationality and race,” along with a particular condemnation of Marxist Socialism and a call for national and international relations to be based on natural law principles guaranteeing justice, order, and peace. In particular, Michael Phayer, a historian writing on the Vatican’s relation to the Holocaust, suggested a need for renewed attention to the 1942 Christmas Message. According to Phayer:

Historians . . . have been rather too …

Sub Judice And Free Speech: Balancing The Right To A Fair Trial Against Freedom Of Expression In Israel, Boaz Shnoor, Doron Menashe

San Diego International Law Journal

Over the past few years, a relatively large number of cases have arisen in Israel, in which media publications have allegedly influenced criminal proceedings. The Supreme Court of Israel has issued a number of inconsistent decisions regarding such publications.

In this Article, we will study the sub judice prohibition, analyze the concern of undue influence of media publications in criminal cases in light of contemporary behavioral literature, discuss the various approaches found in contemporary Israeli case law, and propose a new and better model.

On The Precipice: Prospects For Free Labor Unions In Vietnam, Tran Thi Kieu Trang, Richard Bales

San Diego International Law Journal

Vietnam (officially, the “Socialist Republic of Vietnam”) is rapidly transitioning economically, in large part due to pro-trade policies that have attracted international capital. A necessary component for Vietnam to further integrate into the world economy is to develop a system of industrial relations that will ensure industrial stability and reassure international manufacturers that there is no risk of embarrassment resulting from revelations of brutal or unsafe working conditions. Positive signs for rapid labor reform were visible as recently as early 2016 with the Trans-Pacific Partnership (“TPP”), a trade agreement intended to integrate trade among twelve countries (including Vietnam), which would …

The Prosecution Of Pirates And The Enforcement Of Counter-Piracy Laws Are Virtually Incapacitated By Law Itself, Waseem Ahmad Qureshi

San Diego International Law Journal

The legal framework to fight and suppress piracy is embodied largely in the United Nations Convention on the Law of Sea (“UNCLOS”), 1982, which is supplemented by United Nations Security Council Resolutions, and international conventions and treaties. This Article aims to critique the existing legal framework against piracy and challenge its efficacy in successfully curbing and eradicating piracy around the world throughout history. Unlike the extensive literature on legal studies of piracy, this Article recognizes piracy as a global menace, rather than observing it through the lens of regional differences. Consequently, this Article seeks to identify creeks and holes within …

Sir, The Radar Sir, It Appears To Be . . . Jammed: The Future Of “The Right To Be Forgotten” In A Post-Brexit United Kingdom, Cory Dibene

San Diego International Law Journal

The “Right to be Forgotten” is an EU doctrine. However, now that the UK is progressing towards leaving the EU in 2019, it is important to examine what jurisprudential changes will follow. This Comment will examine the “Right to be Forgotten,” the UK’s criticism of the EU Internet doctrine, and the future of the doctrine in the UK once Brexit takes full effect.

The future is somewhat unclear since Brexit arguably jammed the “Right to be Forgotten’s” radar in the UK. Arguments can be made for abandoning the Right and creating a new jurisprudence in the UK. The House of …

Physician-Assisted Suicide: Removing Residency Requirements In The U.S. To Comport With An International Right To Health, Alexi Silverman

San Diego International Law Journal

In 1948, the UN General Assembly passed a resolution, known as the International Bill of Human Rights. The Bill contains the Universal Declaration of Human Rights, articulating a human right to health. A subsequent treaty, the International Covenant on Civil and Political Rights states that “every human being has the inherent right to life.” Furthermore, the International Covenant on Economic, Social and Cultural Rights protects access to healthcare. However, these treaties do not explicitly recognize a “right to die,” leaving the decision of whether to allow euthanasia and physician-assisted suicide within the discretion of individual countries.

With this international background …

Pennoyer Was Right, Stephen E. Sachs

Faculty Scholarship

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law -- that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if …

What Is Foreign Relations Law?, Curtis A. Bradley

Faculty Scholarship

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …

Treaty Exit In The United States: Insights From The United Kingdom Or South Africa?, Curtis A. Bradley, Laurence R. Helfer

Faculty Scholarship

This essay, a contribution to an AJIL Unbound symposium on “Treaty Exit at the Interface of Domestic and International Law,” compares treaty exit in the United States, the United Kingdom, and South Africa. After examining the longstanding practice of unilateral presidential withdrawals from treaties in the United States and the refusal to date of U.S. courts to review the constitutionality of that practice, the essay summarizes recent judicial decisions in the United Kingdom and South Africa holding that parliamentary approval was required before these nations could withdraw from treaties committing them, respectively, to the European Union and the International Criminal …