International Law Commons^™

Cyberwar, International Politics, And Institutional Design, Daniel Abebe

Faculty Scholarship

In the United States, the breadth of the president’s warmaking authority has been governed by the Constitution, the Supreme Court’s jurisprudence, and, over time, historical practice; in short, the president’s powers are constrained by a well-developed body of US foreign relations law. But the prospect of a new kind of conflict — cyberwar — potentially challenges the existing regulatory regime, which rests on assumptions that are common to traditional, conventional war. For some, the complexities of cyberwar generate new foreign relations–law questions about the president’s authority to engage in offensive cyberoperations, and they thus necessitate a new regulatory framework. For …

Ocean Iron Fertilization And Indigenous Peoples' Right To Food: Leveraging International And Domestic Law Protections To Enhance Access To Salmon In The Pacific Northwest, Randall S. Abate

Journal Publications

Ocean iron fertilization (OIF) is a new and controversial climate change mitigation strategy that seeks to increase the carbon-absorbing capacity of ocean waters by depositing significant quantities of iron dust into the marine environment to stimulate the growth of phytoplankton blooms. The photosynthetic processes of these blooms absorb carbon from the atmosphere and sequester it to the ocean floor. OIF has been criticized on several grounds. including the foreseeable and unforeseeable adverse consequences it may cause to the marine environment, as well as the daunting challenge of reconciling several potentially overlapping sources of international and domestic environmental law, which may …

President Obama's Legacy: The Iran Nuclear Agreement?, Milena Sterio

Law Faculty Articles and Essays

Iran, the United States, and several world super-powers signed a historic nuclear agreement over the summer of 2015. The Agreement is a comprehensive plan of action, with an unprecedented level of minutia and detail regarding Iran’s commitment to curb its nuclear program in exchange for the lifting of United Nations-imposed sanctions against Iran. This Agreement, if it is successfully implemented, may represent President Obama’s most significant foreign policy achievement and may become the most important element of President Obama's legacy.

This article examines the Iran Nuclear Agreement by focusing on the events that led to the imposition of sanctions against …

Understanding South Africa’S Aspirational Constitution As Scaffolding, Stu Woolman

NYLS Law Review

No abstract provided.

How Should The South African Constitutional Court Approach Tensions Between Women’S Rights And Religious Rights?, Julia L. Ernst

NYLS Law Review

No abstract provided.

“The Advert Was Put Up Yesterday”: Public Participation In The Traditional Courts Bill Legislative Process, Thuto Thipe, Monica De Souza, Nolundi Luwaya

NYLS Law Review

No abstract provided.

Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou

Marquette Benefits and Social Welfare Law Review

The psycho-legal concept of “rights apathy” is developed in

this Essay as an underlying factor of the very low rate of

incidence of workplace discrimination lawsuits filed in China,

despite an increasingly elaborate legal framework “on paper”

and workers’ rising awareness of their legal rights under

anti-discrimination laws. “Rights apathy” is underpinned by the

notions of “frustration” and “learned helplessness,” depicting the

indifference of workers in exercising their legal rights before a

tribunal or court. A number of institutional problems, namely

defects in existing anti-discrimination provisions, judicial

practices, and contradictions in other laws, policies, and

practices, can contribute to the …

Evading The Treaty Power?: The Constitutionality Of Nonbinding Agreements, Michael D. Ramsey

FIU Law Review

No abstract provided.

Should I Stay Or Should I Go?: Why Bolivian Tactics And U.S. "Flexibility" Undermine The Single Convention On Narcotic Drugs, Robert C. Zitt

Brooklyn Journal of International Law

This Note examines the deterioration of the 1961 Single Convention on Narcotic Drugs (“Convention”), as Member State circumvention of treaty spirit continues to highlight the disconnect between progressive drug policies and an enforcement regime armed with little or no power to monitor compliance. It first provides a brief history of the Convention with discussion underscoring the governing bodies of the treaty itself, particularly the International Narcotics Control Board (INCB). Further discussion will note the procedural mechanisms whereby parties can propose amendments or reservations to the Convention itself. With such procedures in mind, subsequent examination will analyze how Member States have …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

Response: The Icc, Pre-Existing Jurisdictional Treaty Regimes, And The Limits Of The Nemo Dat Quod Non Habet Doctrine--A Reply To Michael Newton, Carsten Stahn

Vanderbilt Journal of Transnational Law

It is a pleasure and a privilege to provide a few reflections on Michael Newton's thought-provoking essay on "How the ICC Threatens Treaty Norms." His article marks an important piece of scholarship. It reflects significant concerns about the reach and function of the International Criminal Court (ICC) that merit further attention and explanation in ICC practice. Newton makes a provocative argument. He argues that the ICC might undermine sovereign law enforcement efforts and exceed its powers if it exercises jurisdiction over American forces in Afghanistan or Israeli offenses in the West Bank or the Gaza Strip. This argument is not …

Response: "Quid," Not "Quantum": A Comment On "How The International Criminal Court Threatens Treaty Norms", Roger O'Keefe

Vanderbilt Journal of Transnational Law

Mike Newton's article performs a considerable service in reminding the reader of some incontrovertible tenets of the law of international organizations (loosely so called in the case of an organ like the ICC) and of the law of treaties. First, the ICC is competent to exercise only that power vested in it by the States Parties to its Statute. In turn, the States Parties are not competent to transfer to the Court a power that they do not possess. "Nemo plus iuris transferre potest quam ipse habet," as Cicero may or may not have put it. Secondly, a treaty may …

How The International Criminal Court Threatens Treaty Norms, Michael A. Newton

Vanderbilt Journal of Transnational Law

This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim "nemo plus iuris transfer …

An International Commission Of Inquiry For The South China Sea?, Ryan Mitchell

Vanderbilt Journal of Transnational Law

The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to "lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other …

Of Human Dignities, Mark L. Movsesian

Faculty Publications

(Excerpt)

Dignitatis Humanae: “Of Human Dignity.” The Second Vatican Council’s 1965 declaration on religious liberty must have seemed a triumph—an exclamation mark signaling the success of a decades-long project, begun during the Second World War, to restore human rights to the center of Catholic social teaching. In wartime addresses, Pope Pius XII had called for recognition of human rights, based in human dignity, as the foundation for a stable peace. In 1963, Pope John XXIII had made universal human rights, including religious liberty, part of the Magisterium. The project had had effects outside the Church as well. In 1948, …

Corporate Wrongdoing: Interactions Of Legal Mandates And Corporate Culture, Vincent Dilorenzo

Faculty Publications

In recent years, enforcement officials have imposed billions of dollars in sanctions on all major U.S. financial institutions and many major financial institutions abroad. Similar sanctions have been imposed on nonfinancial institutions. The sanctions are the result of findings of recurrent violations of law, as well as recidivism. Why have existing regulatory standards and enforcement policies led to repeated violations of law? Will the recent billion dollar sanctions deter future wrongdoing?

This article explores these issues by examining the philosophy motivating regulatory policy and action in the United States and United Kingdom, using financial regulators as a case study. This …

Advocacy At The Leading Edge Of Social Change: The Importance Of Front Line Innovators, Frank W. Munger

Articles & Chapters

No abstract provided.

Customs Law, Luis Arandia, Shane Devins, Vince Draa, Geoffrey Goodale, Patricio La Porta, Keith P. Larsen, Greg Kanargelidis, Daniel Kiselbach, Matt Nakachi, Ruta Riley

The International Lawyer

This article summarizes important developments in 2015 in customs law, including U.S. judicial decisions, trade, legislative, administrative, and executive developments, as well as Canadian, Chilean, and European legal developments.

International M&A And Joint Ventures, Vanesa Balda, Marilen Figueroa, Gordon N. Cameron, Laura Fraser, Francisco Ugarte, Lucille Barale, H. Jayesh, Aditi Bagri, Aaheree Mukherjee

The International Lawyer

No abstract provided.

The War On American Diplomacy: Isis, Al-Qaeda, And Taliban's Sustained Attacks On Peaceful U.S. Missions Abroad, Justus Reid Weiner

Cardozo Journal of Conflict Resolution

According to the American Foreign Service Association, seventy-six U.S. diplomats were killed between the years of 1973 and 2013 during peaceful missions abroad, amounting to over forty deaths. These diplomats were beacons of peace in their respective regions, maintaining peaceful relations amongst each other's countries and mitigating conflict without the use of violence. Continued attacks on diplomats are a demonstration of violence not only against them as individuals, but against peace around the globe. The most obvious way to resolve this conflict is to acknowledge the innumerous terror attacks that have taken place and take active steps to resolve the …

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

The Transformative Influence Of International Law And Practice On The Death Penalty In The United States, Richard Wilson

Contributions to Books

No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of …

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

Using International Property Law As A Lever To Evolve Toward Integrative Ocean Governance, Rachael E. Salcido

McGeorge School of Law Scholarly Articles

TABLE OF CONTENTS I. INTRODUCTION .............................................................................................. 254 II. BACKGROUND ............................................................................................... 255 A. Brief Primer on Ocean Jurisdiction ...................................................... 256 B. Dispute Resolution and International Governance ............................... 257 C. The Power of Property .......................................................................... 259 D. Ocean Governance Support for an International Property Law Thesis ..................................................................................................... 260 III. STATE OF OCEAN HEALTH ........................................................................... 261 A. Overfishing ............................................................................................ 262 B. Climate Change ..................................................................................... 263 C. Pollution ................................................................................................ 264 1. Traditional Pollution ...................................................................... 264 2. Special Growing Plastic Pollution Problem ................................... 265 D. Industrialization .................................................................................... 265 1. Marine Renewable Energy .............................................................. 266 2. Aquaculture ..................................................................................... 268 3. Offshore Oil and Gas ...................................................................... 268 …

The Uncoordinated Public Domain, Robert Spoo

Cardozo Arts & Entertainment Law Journal

When nations amend their copyright laws in response to calls for international harmonization, they usually expand authors' rights without also seeking to harmonize national public domains. Divergent national copyright laws have resulted in an uncoordinated global public domain that renders authors' works freely available for use in some countries while subjecting them to copyright or moral-rights protection in others. While the fragmented global commons thwarts many valuable uses of cultural resources, it has especially deleterious effects on the ability of researchers to access, copy, and disseminate historical and literary materials, many of which remain unpublished. These effects are mirrored and …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

Ukraine And The International Criminal Court: Implications Of The Ad Hoc Jurisdiction Acceptance And Beyond, Dr. Iryna Marchuk

Vanderbilt Journal of Transnational Law

The Article examines an array of important legal issues that arise out of the acceptance of the jurisdiction of the International Criminal Court by Ukraine, a non-State Party to the Rome Statute, within the framework of Article 12(3) with respect to the alleged crimes against humanity committed during the 2014 Maydan protests (Declaration I) and the alleged war crimes committed in eastern Ukraine and Crimea (Declaration II). It provides an in-depth analysis of constitutional law issues linked to the acceptance of the jurisdiction by Ukraine and discusses its possible implications on the proceedings before the ICC. The Article criticizes the …

Private Governance Can Increase Shipping's Efficiency And Reduce Its Impacts, Daniel J. Metzger

Vanderbilt Journal of Transnational Law

The shipping industry is a huge component of the world economy, and although it is often described as an efficient mode of transport, it still contributes as much carbon dioxide to the atmosphere as a major industrialized nation. Efficiency technologies and practices are available that would significantly lessen shipping's environmental impact, but "amazing loophole[s]" in international environmental law and a set of market failures have prevented them from being widely adopted. These problems have been studied before, but the public regulatory proposals being discussed run into steep, if not insurmountable obstacles. This Note argues that shipping inefficiency can be better …

Why China Established The Asia Infrastructure Investment Bank, Daniel C.K. Chow

Vanderbilt Journal of Transnational Law

On January 16, 2016, China officially opened the Asia Infrastructure Investment Bank (AIIB) for business, representing what might be a seismic shift in economic power from the United States to China. The AIIB creates a challenge to the U.S.-dominated World Bank and International Monetary Fund (IMF), two venerable international financial institutions created at the end of World War II. The World Bank lends money to developing countries to promote economic development, but these loans come with conditions called the Washington Consensus--a set of policies designed to promote the use of private markets, protect the environment, protect human and workers' rights, …

A Post-Millennial Inquiry Into The United Nations Law Of Self-Determination: A Right To Unilateral Non-Colonial Secession?, Dr. Glen Anderson

Vanderbilt Journal of Transnational Law

The present Article inquires whether a right to unilateral non-colonial (UNC) secession is grounded in the United Nations (UN) law of self-determination. The Article argues that peoples subjected to deliberate, sustained, and systematic human rights abuses in extremis (e.g., ethnic cleansing, mass killings, or genocide) by the existing state have an international customary law right to UNC secessionist self-determination. This right is coextensive with the "remedial-rights-only" philosophical approach to UNC secession. The Article further argues that in the post-millennial era two developments are likely for the law of UNC secessionist self-determination: first, the right will become available in response to …