International Law Commons^™

Bringing International Tax Policy Into The 21st Century, Michael J. Graetz

Faculty Scholarship

Michael J. Graetz delivered the following remarks at the Tax Policy Center's "A Corporate Tax for the 21st Century" conference on July 14 in Washington. These remarks are substantially taken from his April 2015 Ross Parsons Lecture at the University of Sydney Law School.

Toward A Political Theory For Private International Law, John Linarelli

Scholarly Works

Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside …

Holding Canada Accountable: An Evaluation Of Canada's Compliance To The United Nations Declaration On The Rights Of Indigenous Peoples, Jackson A. Smith

Theses and Dissertations (Comprehensive)

Compliance of human rights norms requires the application of pressure from a multitude of directions and levels. It takes individual advocacy, micro-system/organizational/community-level pressure, and macro-level pressure from other nation-states and international organizations and governance bodies. This MA study focuses on the mechanisms employed by the United Nations to monitor the compliance of signatory nation-states to the standards established in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), with particular focus on Canada. A crucial goal of this study is to translate the UN Special Rapporteur on the Rights of Indigenous Peoples (UNSRRIP), James Anaya’s, findings on the …

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

Drawing Lines Among The Persecuted, Kate Evans

Faculty Scholarship

Should a victim of persecution be denied protection in the United States if his persecutors forced him to participate in their campaign of terror? In its 2009 decision, Negusie v. Holder, the Supreme Court recognized the “difficult line drawing problems” presented by this question, but failed to offer concrete guidance to the lower courts or the executive agencies charged with drawing those lines. Circuit courts employ a variety of standards, leaving the law in disarray.

This Article offers original historical research to argue that asylum seekers charged with participating in persecution should be afforded a duress defense. It traces the …

Obama's Aumf Legacy, Curtis A. Bradley, Jack Landman Goldsmith

Faculty Scholarship

No abstract provided.

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The Dod Law Of War Manual And Its Critics: Some Observations, Charles J. Dunlap Jr.

Faculty Scholarship

The U.S. Department of Defense’s (DoD) new Law of War Manual has generated serious debate about its treatment of a variety of issues including human shields, the status of journalists, cyber operations, the precautions to be taken prior to attacks and even the role of honor in war. Although this article does not purport to be a comprehensive response to every critique of the Manual and, indeed, cites opportunities for its improvement, it nevertheless concludes that on balance the Manual provides an excellent, comprehensive and much-needed statement of DoD’s view of the lex lata of the law of war.

Feminism And International Law In The Post 9/11 Era, Jayne C. Huckerby

Faculty Scholarship

No abstract provided.

The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

Faculty Scholarship

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this …

Towards A New International Law Of The Atmosphere?, Peter H. Sand, Jonathan B. Wiener

Faculty Scholarship

Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide …

Does Brexit Spell The Death Of Transnational Law?, Ralf Michaels

Faculty Scholarship

The British leave vote in the referendum on EU membership has important implications for how we think about law . The vote must be viewed as a manifestation of a globalized nationalism that we find in many EU member states and many other countries. As such, it is also a challenge of the idea of transnational law, forcefully introduced in Jessup’s book on Transnational law 60 years ago. In this paper, I suggest that the hope to return from transnational law to the nation state of the 19th century is nostalgic and futile. However, I argue that transnational law has …

The Conflicts Restatement And The World, Ralf Michaels

Faculty Scholarship

No abstract provided.

Comparative Law And Private International Law, Ralf Michaels

Faculty Scholarship

No abstract provided.

Wächter, Carl Georg Von, Ralf Michaels

Faculty Scholarship

Carl Georg von Wächter (1797-1880) was once considered 'one of the greatest German jurists of all times’, but was all but forgotten in the 20th century, despite an excellent dissertation on his work in private international law by Nikolaus Sandmann. In private international law, he is known mainly for his critique of earlier theories, in particular the theory of statutes. Positively, Wächter is mainly (and not accurately) known as a proponent of a strong preference for the lex fori and as such mainly presented in opposition to Friedrich Carl von Savigny’s theory (Savigny, Friedrich Carl von). Only recently has there …

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.

V.17-2, 2016 Masthead

San Diego International Law Journal

No abstract provided.

The Third Player-Illegal Combatant, Emanual Gross

San Diego International Law Journal

This Article will examine the current status of the international law of war with respect to terrorist organizations and their operatives. The central argument of this article is that international humanitarian law is unable to cope with the reality of international terrorism. The basic definitions of "combatant" and "civilian" are not suitable within the context of the age of terrorism. In the past, combatants were presumed to be either a member of a state, or in the alternative, freedom fighters expressing an idea of resistance against a colonial occupation. Terrorist organizations and their members are not freedom fighters, but rather, …

Endemic Corruption In The People's Republic Of China, Emily Tran

San Diego International Law Journal

Since taking office in 2013, President Xi Jinping has emphasized the importance of enforcing his campaign against corruption. The number of bribery convictions issued in recent years and the possibility of receiving the death penalty for serious corruption-related crimes underscores the seriousness with which the CPC considers corruption. The penalties for bribery are harsh compared to most other countries and serve as a strong method of deterrence. Part II of this Article discusses the PRC's anti-corruption laws in the individual and commercial contexts and note the inherent problems in the CPC's enforcement efforts. Part III will discuss the impact of …

The Currency Of History: The Possible, And Improper, Restriction On Ancient Egyptian Coinage, Cody Wisniewski

San Diego International Law Journal

Any restriction on the importation of Egyptian artifacts into the United States between the United States and the Arab Republic of Egypt should not contain a restriction on the importation of Ancient Egyptian coins. Emergency restrictions on the importation of Ancient Egyptian coins would be inappropriate for three reasons. First, Ancient Egyptian coinage does not fit within the narrowly tailored requirements that the United States employs in order to impose import restrictions on particular artifacts. Second, the United States is the only country that is a signatory to the 1970 UNESCO Convention that is enacting such restrictions on ancient coinage, …

V. 18-1, 2016 Masthead

San Diego International Law Journal

No abstract provided.

The Evolution Of China’S Legislation On Reproduction, Du Yifang

San Diego International Law Journal

This Article discusses how Chinas policy on reproduction developed from one that encouraged population growth to the very restrictive one-child policy. Part I discusses the factors underlying the establishment of the reproduction system after 1949. Part II analyzes the transition of national olicy and legislation over the period from 1980 to 2001 from encouraging to controlling childbirth. Part III discusses, in detail, the development and implementation of the one-child policy, and Part IV discusses the effects of this development. Finally, Part V explains the 2016 amendment to the Population and Family Planning Law in China, which abandoned the one-child policy.

Extraterrestrial Property Rights: Utilizing The Resources Of The Final Frontier, John Myers

San Diego International Law Journal

In sum, space exploration offers three important opportunities for the United States. First, space exploration promotes scientific progress and international cooperation. Second, space exploration will drive the world economy by creating new jobs and introducing exploited space resources into the markets. Third, space exploration will reverse the decline of the United States in math and science by inspiring children to be interested in STEM fields. More than fifty years later, President Kennedy words still ring true: ;[N]o nation which expects to be the leader of other nations can expect to stay behind in the race for space

Gone But Not Forgotten: Recognizing The Right To Be Forgotten In The U.S. To Lessen The Impacts Of Data Breaches, Ashley Stenning

San Diego International Law Journal

This Comment will explore the right to be forgotten, how it is recognized in the European Union, and the trend toward the existence of such a right in the United States. Additionally, this comment will discuss how the right to be forgotten could lessen the impact data breaches have on individuals through the lens of the Ashley Madison hack. Lastly, this comment will discuss how, if the United States narrowed the scope of the European Union’s concept of the right to be forgotten to fit into the United States’ view of privacy and the First Amendment, the impact of data …

Bitter Biopharmaceuticals: Biologic Counterfeiting And Supply Chain Concerns, Jennifer Abma

San Diego International Law Journal

Pharmaceutical counterfeiting is a growing area of public safety and national security concern. Biological medications are a growing portion of counterfeit medicines due to the high cost and opportunities for profit from these innovative drugs. Biologics are a unique target for counterfeiters in international commerce presentingunique hazards over traditional, more stable, pills. This Article explores the international biopharmaceutical supply chain and the regulatory weaknesses that compromise public health.

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Roger P. Alford, Julian G. Ku, Bei Xiao

Journal Articles

The Article begins in Part I by discussing the academic literature reviewing China's implementation of the New York Convention with re­spect to foreign arbitral awards. In Part II, the Article lays out the domes­tic legal framework in China for implementing foreign arbitral awards and reviews judicial decisions interpreting the New York Convention. In Part III, the Article reports on the results of its survey of practitioner perceptions and experiences with the Chinese system of enforcing arbitral awards. Finally, in Part IV, the article concludes with a possible explana­tion for continuing skeptical views of China's system of enforcing foreign arbitral awards.

Bordering The Constitution, Constituting The Border, Efrat Arbel

All Faculty Publications

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border …

The Strangely Familiar History Of The Unitary Theory Of Perpetration, James G. Stewart

All Faculty Publications

A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. …

Tlos And Global Financial Markets: The Case Of Derivatives, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

Foreign Governments As Plaintiffs In U.S. Courts And The Case Against "Judicial Imperialism", Hannah L. Buxbaum

Articles by Maurer Faculty

One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a …