Rule of Law Commons^™

To Forgive And Forget: How Reconciliation And Amnesty Legislation In Afghanistan Forgives War Criminals While Forgetting Their Victims, Sara L. Carlson

Penn State Journal of Law & International Affairs (2012 - Present)

More than three decades of war and hundreds of thousands killed or brutalized by the actions of warlords and insurgent commanders vying for power comprise the backdrop of modern Afghanistan. As Afghanistan continues toward a new era, seeking democracy in a country where tribal affiliations and ethnic groups often usurp any sense of patriotism, the reconciliation of armed fighters while providing an adequate grievance process for victims of war crimes must take priority in the process adopted to unify the Islamic Republic of Afghanistan. This comment explores the current attempt by the Islamic Republic of Afghanistan to provide a system …

International Activity And Domestic Law, Adam I. Muchmore

Penn State Journal of Law & International Affairs (2012 - Present)

This essay explores the ways States use their domestic laws to regulate activities that cross national borders. Domestic-law enforcement decisions play an underappreciated role in the development of international regulatory policy, particularly in situations where the enforcing State's power to apply its law extraterritorially is not contested. Collective action problems suggest there will be an undersupply of enforcement decisions that promote global welfare and an oversupply of enforcement decisions that promote national welfare. These collective action problems may be mitigated in part by government networks and other forms of regulatory cooperation.

The Full Story Of United States V. Smith, America’S Most Important Piracy Case, Joel H. Samuels

Penn State Journal of Law & International Affairs (2012 - Present)

This article explores the seminal United States Supreme Court decision of United States v. Smith (1820). Smith, an early piracy case, has influenced developments in both domestic and international law on piracy, universal jurisdiction, and a range of broader themes. This article is the first to explore the context within which the case arose, as well as the circumstances of the case itself. In addition to the details of the case, the story of the men prosecuted for their cruise aboard the vessel known as the Irresistible in the late spring and early summer of 1819 also offers a …

Remarks On Counterstrike, Eric Schmitt

Penn State Journal of Law & International Affairs (2012 - Present)

After 9/11, the United States government was forced to think differently about terrorism and the nation’s ability to respond to attacks. Eric Schmitt and Thom Shanker address many of the intricacies faced by officials at the White House, the State Department and the Pentagon in their book Counterstrike. In this essay, transcribed from remarks given on March 21, 2012 at the Clarke Forum for Contemporary Issues at Dickinson College, Schmitt discusses how the U.S. government’s policies toward Al Qaeda and terrorism in general have evolved in the ten-year period following the attacks.

Remarks, The Big Picture: Beyond Hot Spots & Crises In Our Interconnected World, Anne-Marie Slaughter

Penn State Journal of Law & International Affairs (2012 - Present)

The picture of foreign policy as seen by the United States has changed dramatically over the last few decades. The United States now faces a world far more interconnected and integrated than the foreign policy landscape of the Cold War and its immediate aftermath. Instead of one or two super power centers, the world today is made up of multiple global and regional power centers. This essay, transcribed and adapted from remarks given by Anne-Marie Slaughter on March 15, 2012, at the Dickinson School of Law of the Pennsylvania State University, examines the shift to a multi-polar world of foreign …

International Order After The Financial Crisis, Harold James

Penn State Journal of Law & International Affairs (2012 - Present)

How is international order built, and how is it legitimate, in a world in which political and economic foundations are rapidly shifting? What are the consequences of the rise of major new powers for the structure and the functioning of the international system? Great wars or great financial crises have in the past led to disorientation about the moral foundations of society, domestically and internationally. The paper examines parallels with the Great Depression, and in particular the weakening of multilateralism and of small political units, and the strengthening of large powers with hegemonic claims. The paper then turns to an …

The Growing Dark Side Of Cyberspace ( . . . And What To Do About It), Ronald Deibert

Penn State Journal of Law & International Affairs (2012 - Present)

Cyberspace – the global environment of digital communications – surrounds and embodies us entirely, 24 hours a day, 7 days a week. We are always on, always connected: emailing, texting, searching, networking, and sharing are all now as commonplace as eating, breathing, and sleeping. But there is a dark side to cyberspace - hidden contests and malicious threats - that is growing like a disease from the inside-out. This disease has many symptoms, and is being reinforced by a multiplicity of disparate but mutually reinforcing causes. Some of these driving forces are unintended byproducts of the new digital universe into …

The Rise Of Transparency And The Decline Of Secrecy In The Age Of Global And Social Media, P.J. Crowley

Penn State Journal of Law & International Affairs (2012 - Present)

News reporting of a wide range of sensitive government policies, operations, and internal deliberations has raised understandable concerns that U.S. national security is being compromised. In response, there is an increase in investigations and prosecutions and proposed legislation to plug government leaks. But a broader reality may be at work. In the increasingly interconnected and transparent world of the Internet, Facebook, Twitter, satellite television, WikiLeaks, omniscient cellphones and technology-enhanced revolutions such as the Arab Awakening, governments have lost their ability to control the flow of information. More people have access to more information, with the ability to communicate anything from …

The Balance Of Power, Public Goods, And The Lost Art Of Grand Strategy: American Policy Toward The Persian Gulf And Rising Asia In The 21st Century, Flynt Leverett, Hillary Mann Leverett

Penn State Journal of Law & International Affairs (2012 - Present)

An important driver of relative decline in America’s international standing is the failure of its political elites to define reality-based foreign policy goals and to relate the diplomatic, economic, and military means at Washington’s disposal to realizing them—the essence of “grand strategy.” For several decades, American policy has been pulled in opposite directions by two competing models of grand strategy. In one—the leadership model—America maximizes its international standing by adroitly managing regional and global power balances and promoting the processes of economic liberalization known collectively as globalization. In the second model—the transformation model—America seeks not to manage power balances but …

Jlia Editorial Board & Staff

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

A Blue Thai Affair: The Blue Diamond Affair's Illustration Of The Royal Thai Police Force's Standards Of Corruption, Meghan A. Mcclincy

Penn State Journal of Law & International Affairs (2012 - Present)

The Blue Diamond Affair, an international jewelry heist, captivated the world’s attention because of its unresolved murders, its implication of law enforcement and public officials from two divergent countries, and the resulting diplomatic tensions between Thailand and Saudi Arabia. The crime also demonstrates the inadequacy of the policies that governed the conduct of the Royal Thai Police Force and how the policies allowed, if not perpetuated corruption within the Royal Thai Police Force. This comment provides an overview of the Blue Diamond Affair, analyzes the Thai criminal statutes and policies, and explores possible remedies for police corruption in Thailand and …

Stop The Money, Stop The Attacks: A Categorical Approach To Achieving An International Terrorist Financing Sanction Regime, Vietlong Nguyen

Penn State Journal of Law & International Affairs (2012 - Present)

Money allows terrorist organizations to continue their day-to-day operations. Stopping the flow of financial support to terrorist organizations will diminish the intensity and frequency of the attacks and ideally lead to a cessation of such attacks. One country may be able to establish barriers to terrorist financing through government sanctions. These barriers will not stop terrorist financing; but rather, it will divert it to another country. The only way to effectively stop such financing is to implement international standards for terrorist financing sanctions. But as countries differ economically and politically, a solution must accommodate each countries’ unique situation. This comment …

China And The Anti-Counterfeiting Trade Agreement - Acta Faith, Or Act Futility?: An Exposition Of Intellectual Property Enforcement In The Age Of Shanzhai (山寨), Leroy J. Pelicci Jr.

Penn State Journal of Law & International Affairs (2012 - Present)

This comment presents a snapshot of the current state of intellectual property (“IP”) enforcement in China in light of a controversial new treaty designed to address the illicit, yet by all accounts thriving, industry of trade in pirated and counterfeit goods. Beginning with an overview of IP-intensive industries, this comment highlights the significance and value of this unique form of property, both to individuals and to national economies. This comment then shifts in focus to the areas of commerce most affected by counterfeiting and piracy, discussing China’s prevalent role in the epidemic, and its copycat subculture known as “Shanzhai.” Thereafter, …

Gypsies, Tramps & Thieves: What Europe's Romanies Can Teach The United States About Crime-Motivated Immigration Reform, Allie Sievers

Penn State Journal of Law & International Affairs (2012 - Present)

This comment proposes that the United States could learn a great deal about the dangers of extreme immigration policy-making by looking to the European states and their dealings with the Romani, specifically the French expulsions of the Romani in 2010. Through this lens, this comment analyzes flaws in the U.S.’ crime-motivated immigration enforcement programs, and argues that the U.S. needs to move quickly to remedy flaws in immigration enforcement before it repeats many of the mistakes that led to the current condition of Europe’s Romanies and creates its own class of un-integrated ethnic minorities.

Who Killed The Friendly Settlement? The Decline Of Negotiated Resolutions At The European Court Of Human Rights , Gregory S. Weber

Pepperdine Dispute Resolution Law Journal

The "Friendly Settlement"--the negotiated settlement of cases at the European Court of Human Rights--is on the decline. The Friendly Settlement's decline will likely provoke mixed sentiments in the international human rights camp. Some may applaud the development, including those who believe that only judgments by the Court are likely to chastise member states sufficiently and to announce standards of conduct for other states to follow. But others may shed more than a few mournful tears. An active settlement program can help reduce the Court's huge case backlog and give complaining parties a faster, and often more generous, measure of resolution …

Negotiating And Mediating Peace In Africa , Nancy Erbe, Chinedu Bob Ezeh, Daniel Karanja, Neba Monifor, George Mubanga, Ndi Richard Tanto

Pepperdine Dispute Resolution Law Journal

Last year, a law review solicited my thoughts about, in their words, pushing the envelope with social justice and negotiating peace in a world dominated by power and violence. Taking their language literally, one must ask how to effectively address contemporary obstacles to ensure that the message and, most importantly, the means of justice are truly delivered to those in need. One answer-which may seem obvious to readers but is actually much too rare in practice-is to work with, empower, and support the conflict work of the community members themselves. This article introduces the plans of five African professionals, demonstrating …

The Full Story Of U.S. V. Smith, America’S Most Important Piracy Case, Joel H. Samuels

Faculty Publications

No abstract provided.

State Administrative Legal Review On The Bill Of Retraction Law Of Corrupted Assets In Eradication Effort Of Corruption In Indonesia, Dian Puji Simatupang

Indonesia Law Review

Since eradicating corruption having been continously encouraged by late governments – and until now – , there would not be less important as to retracting the corrupted assets. There are many aspects to be considered in doing such action, such as manifesting the legal aspects of administrative law, and so other applied national regulations. By these regulations, such as Law No. 7 of 2006 on Ratification of United Nations Convention against Corruption, 2003 (Konvensi Perserikatan Bangsa Bangsa Anti-Korupsi, 2003), Law Number 25 of 2003 On Amendment to Law Number 15 of 2002 on Money Laundering, Act 30 of 2002 on …

On Land (Wealth) Distribution: A Cultural Approach To Justice In Indonesia, Suparjo Suparjo

Indonesia Law Review

This article re-examines the Indonesian land distribution policy in light of Pancasila , the five core values of the Indonesian constitution. Furthermore, the article also analyzes social problems in Indonesia from the legal and cultural point of view. Inspired by Javanese shadow puppet plays and Pancasila values, analysis shows that that land distribution policy in Indonesia does not support the goal of the country. The policy does not adhere to Pancasila values and the cultural values adopted by the Indonesian people. Hence I will try to give a recommendation for better regulation in land distribution. Evidences will be given to …

Patent, Technology, And The Role Of University, Agus Sardjono

Indonesia Law Review

University has significant contribution to the development of nanotechnology. The role of university can be implemented through the TTLO, particularly in an effort to build a bridge for bottom-up nanotechnology for commercial purposes. There will be an increasingly significant link between the patent system and the university role in the development of nanotechnology.

Foreign Official Immunity After Samantar, Chimene I. Keitner

Vanderbilt Journal of Transnational Law

In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSLA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that …

Promise Against Peril: Of Power, Purpose, And Principle In International Law, Robert C. Hockett

Cornell Law Faculty Publications

I take two recent monographs on international law – Mary Ellen O’Connell’s "The Power and Purpose of International Law," and Eric Posner’s "The Perils of Global Legalism," as case studies in a more general inquiry into the role of the "rule of law" ideal in domestic and international law. I argue that international and domestic law alike give varyingly explicit and effective expression to the rule of law ideal, and that the task before us is accordingly steadily to improve their effectiveness in so doing, not to pretend that there is no role for this ideal to play in interpreting …

Un Peacekeeping: A Sheep In Wolves Clothing? Review Of Un Peacekeeping In Lebanon, Somalia And Kosovo: Operational And Legal Issues In Practice, Jeremy I. Levitt

Journal Publications

Scholars and practitioners have been debating the legal and operational aspects of UN military operations since its enforcement actions in North Korea in 1950 and the Congo in 1960 (UN Operation in the Congo [ONUC]). Since then, the UN Security Council (UNSC) has authorized some semblance of enforcement action in Kuwait, Somalia, the former Yugoslavia, Kosovo, East Timor and Albania, and authorized, sanctioned or co-deployed forces in Liberia, Sierra Leone, the Central African Republic, the Democratic Republic of the Congo, Coˆte d’Ivoire and Sudan. The scholarly literature is abundant with analysis of nearly every aspect of peacekeeping and peace enforcement …

Unaccountable? The United Nations, Emergency Powers, And The Rule Of Law, Simon Chesterman

Vanderbilt Journal of Transnational Law

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions-in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised …

The Solitude Of Latin America: The Struggle For Rights South Of The Border, Ángel Oquendo

Faculty Articles and Papers

The article focuses, comparatively, on remarkable recent developments in Latin America regarding the programmatic adjudication, procedural enforcement, and internationalization of fundamental entitlements. It applauds, first, the manner in which many Latin American courts have uncompromisingly enforced positive guaranties in the last decade or so. Secondly, it analyzes various widely available procedures for the vindication of rights, including the writ of protection or security, unconstitutionality actions, and collective suits. Thirdly, it studies the manner in which the interaction between domestic and transnational rights has become extremely intense in the region. Finally, it notes the tension between the realization of the juridical …

Pakistan's Political Upheaval: The Demise Of Nuclear Democracy, Jared M. Lee

Florida State University Journal of Transnational Law & Policy

No abstract provided.

"I'D Like To Teach The World To Sing (In Perfect Harmony)": International Judicial Dialogue And The Muses - Reflections On The Perils And The Promise Of International Judicial Dialogue, Ronald J. Krotoszynski Jr.

Michigan Law Review

Proponents of international judicial dialogue would do well to read, and reflect upon, the conversations chronicled in Judges in Contemporary Democracy. In a lucid and candid series of interlocutions, five preeminent constitutional jurists and one highly regarded constitutional theorist ponder some of the most difficult questions about the role of a judge on a constitutional court. In particular, the participants-including Stephen Breyer (Associate Justice of the Supreme Court of the United States), Robert Badinter (former President of the Constitutional Council of France), Antonio Cassese (former President of the International Criminal Tribunal for the Former Yugoslavia), Dieter Grimm (former Justice of …

Picking Our Battles: A Strategy For The United States In The Wake Of Mexico's Becoming A State Party To The International Criminal Court, Rachel Harkavy

Georgia Law Review

When Mexico became a state party to the International Criminal Court, it put the United States in the position of choosing between honoring its relationship with Mexico or staying true to its strong objections to the ICC. The downside of the first option is that the United States would be backing down from its anti-ICC stance; the downside of the latter is that the United States would not only disrespect Mexico in pushing it to sign a bilateral immunity agreement, but, since Mexico would likely refuse to enter into such an agreement, the United States would also be put in …

The World Bank's Uses Of The "Rule Of Law" Promise In Economic Development, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

In this chapter, the author seeks to disaggregate the World Bank and provide insight on the impact that particular groups have in dominant development strategies. By analyzing the internal dynamics among groups at the Bank, his aim is to illuminate the rise and fall of ideas about development and their resistance to both empirical evidence and academic critique. These internal dynamics include institutional inertia and constraints, groups’ struggle and competition over resources and prestige, and the relationship between groups at the Bank and the governments of borrowing countries.

The argument presented is that the conceptions of the rule of law …

Regional Economic Arrangements And The Rule Of Law In The Americas: The Human Rights Face Of Free Trade Agreements, Stephen J. Powell

UF Law Faculty Publications

We have addressed the widespread criticism that international trade rules are insensitive to basic human rights and that globalization has done little with its enormous power to preserve exhaustible natural resources and otherwise promote sustainable development, to alleviate the gap between rich and poor, to encourage states to grant their citizens basic human rights contained in the U.N. Covenant on Human Rights and other treaties, to resolve the often conflicting policies underlying essential human rights and trade goals, and, in general, to integrate trade and critical human rights law on the global front.

Our focus in this Essay is on …