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Articles 1 - 30 of 84
Full-Text Articles in Transnational Law
Rethinking International Armed Conflict: Legal Challenges In The Age Of Hybrid Warfare, Oleksandr Havryshuk, Roman Hryshchenko
Rethinking International Armed Conflict: Legal Challenges In The Age Of Hybrid Warfare, Oleksandr Havryshuk, Roman Hryshchenko
Brooklyn Journal of International Law
The binary classification of armed conflicts under international humanitarian law (IHL) — distinguishing international armed conflicts (IACs) from non-international armed conflicts (NIACs) — was forged in the aftermath of World War II and increasingly fails to capture the realities of twenty-first century warfare. Hybrid tactics, cyber operations, the proliferation of private military companies (PMCs), the expanding role of non-state actors, and the near-disappearance of formal declarations of war have eroded the analytical utility of the existing framework, generating legal uncertainty and weakening protections for affected populations. This Article critically examines the conceptual foundations of IAC as set out in Common …
International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama
International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama
Brooklyn Journal of International Law
Under international law, sovereign states are the primary subjects of rights and obligations and possess the authority to conclude treaties. Domestic constitutions typically allocate foreign affairs powers to national governments. Nonetheless, subnational governments—including prefectures—regularly engage in international activities. In some federal systems, constituent units are expressly authorized by their constitutions to conclude international agreements. By contrast, the Constitution of Japan vests foreign affairs authority exclusively in the national executive and is silent on the authority of prefectural governments. This Article uncovers and analyzes approximately 180 previously unexamined international commitments concluded by Japanese prefectural governments with foreign states, identified through information …
Navigating The Legal Waters Of Privatized Commodities And Human Rights: An Exploration Of The Tension Between Water As A Human Right And Water As Investment Property Under International Law, Ella Capen
Brooklyn Journal of International Law
This Note examines the clash between domestic law and international law within the context of Chile’s 2022 modification to the 1981 Water Code as the country transitions from treating water as a privatized commodity to water as a public good. Chile’s 1981 Water Code emerged against the backdrop of a neoliberal economic regime and privatization scheme enabled by the United States and enforced by dictator Augusto Pinochet. This Note reveals the potential difficulties in unraveling established economic and legal foundations, and the conflicts between bilateral investment treaties and local legislation that mutually govern property rights. By examining Chile’s domestic Law …
Necessary Biosafety Precautions For Patented Gmos: Ramifications Of Inconsistent Parties Between The Cartagena Protocol And Trips Agreement, Lauren Clements
Necessary Biosafety Precautions For Patented Gmos: Ramifications Of Inconsistent Parties Between The Cartagena Protocol And Trips Agreement, Lauren Clements
Brooklyn Journal of International Law
Genetically Modified Organisms (“GMOs”) compose a class of potentially patentable biotechnology that are prominent in international markets. Developed countries like the United States, function as leading producers of these patented GMOs and therefore play a significant role in their development and transnational export. Minimum protections for these forms of biotechnology are outlined in the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), which permits the patenting of GMOs that ultimately enter the stream of international commerce. Notwithstanding the potential risks GMOs present to the environment, public health, and the economy, the TRIPS Agreement fails to address any form …
Green Technology And International Patents: Incentivizing Innovation Or Blocking Access?, Matteo Rizzi
Green Technology And International Patents: Incentivizing Innovation Or Blocking Access?, Matteo Rizzi
Brooklyn Journal of International Law
As the global climate crisis intensifies, the transition to clean energy technologies has become an urgent priority for the world's largest carbon dioxide emitters: China, the United States, and India. This Note examines how patent law can serve as a critical instrument in accelerating that transition. The patent system’s core quid pro quo grants inventors exclusive rights in exchange for public disclosure, creating powerful incentives for innovation. Yet the law’s failure to require active use of patented technologies has enabled a range of anticompetitive behaviors, including patent trolling, patent warehousing, and the accumulation of dormant patent portfolios, that allow proprietary …
Colliding Interests: Solving The Space Debris Crisis Through Us-China Cooperation, Grace E. Mannion
Colliding Interests: Solving The Space Debris Crisis Through Us-China Cooperation, Grace E. Mannion
Brooklyn Journal of International Law
As human activity in outer space accelerates, the accumulation of space debris in Low Earth Orbit (LEO) presents an increasingly urgent threat to global infrastructure, economic stability, and the future of space exploration. This Note examines the regulatory and geopolitical challenges underlying the space debris crisis, with particular attention to the fragmented nature of existing international legal frameworks. Current regimes, including the Outer Space Treaty and the Liability Convention, establish broad principles of cooperation and liability but fail to meaningfully address the rapid growth of orbital debris driven by both state and commercial actors. Focusing on the United States and …
Property, Recognition, And The Problem Of The Term “Debtor”: Rethinking Eligibility In Chapter 15 Cross-Border Insolvency, Jonathan Lent
Property, Recognition, And The Problem Of The Term “Debtor”: Rethinking Eligibility In Chapter 15 Cross-Border Insolvency, Jonathan Lent
Brooklyn Journal of Corporate, Financial & Commercial Law
Congress knows how to draft a property requirement. There is no such requirement for a Chapter 15 debtor to seek recognition of its foreign proceeding, yet there is a circuit split on the issue. In 2005, Congress enacted Chapter 15 through the Bankruptcy Consumer Protection and Consumer Act (“BAPCPA”). The Second Circuit in In re Barnet held that section 109(a), along with its property requirement, applies in a Chapter 15 case through section 103(a), which provides that Chapter 1 of the bankruptcy code applies to Chapter 15. The Eleventh Circuit, in In re Al Zawawi, relying on jurisprudence decided under …
Broad And Expansive Sanction Power: A Case For Curtailing Executive Authority, Max Khadduri
Broad And Expansive Sanction Power: A Case For Curtailing Executive Authority, Max Khadduri
Brooklyn Law Review
The United States relies heavily on economic sanctions as a tool of foreign policy. The past 100 years have been marked by the sanction power slipping further and further into the hands of the executive branch. This has left us today with OFAC, who sanctions thousands of entities a year; a legal system which provides very limited recourse for sanctioned entities to plead their case; and incredibly limited congressional oversight. This Note argues for amplified due process rights for foreign nationals seeking to be de-sanctioned and for Congress to use its legislative authority to put restrictions on the executive branches’ …
Human Rights Forum Shopping In Transnational Sport Disputes, Ilias Bantekas
Human Rights Forum Shopping In Transnational Sport Disputes, Ilias Bantekas
Brooklyn Journal of International Law
Professional athletes must adhere to the dispute resolution mechanisms contained in their agreements with sport governing bodies (SGBs). These typically provide for SGB institutional arbitration with appeals against such awards to CAS, although in some instances direct recourse to CAS is also possible. These mechanisms do not cater for attendant human rights claims arising from the underlying dispute. This article suggests that a variety of sui generis forum shopping possibilities are available to address this deficit. Applicants may approach national courts with a sufficient jurisdictional link to the SGB in question by raising constitutional (and by extension human rights) and …
Does The Loss Of Chance Doctrine Have A Chance In International Sport Arbitration?, Dmitry A. Pentsov
Does The Loss Of Chance Doctrine Have A Chance In International Sport Arbitration?, Dmitry A. Pentsov
Brooklyn Journal of International Law
The Article analyzes whether and, if so, how, the loss of chance doctrine providing the basis for claims against person who deprived victims of a chance of occurrence of a certain result or decreased this chance could be used in international sport arbitration at the Court of Arbitration for Sport (CAS). It provides a comparative analysis of applicability of this doctrine under English law, French law, and the law of the State of New York to sport competitions and outlines potential problems of utilizing this doctrine in the CAS arbitration through domestic law based on choice-of-law rules. The Article argues …
Thai Drug Offenses And Narcotic Charges: Tracing Thailand’S Drug Control And Capital Punishment History, Jonathan Hasson, Carolyn Hoyle
Thai Drug Offenses And Narcotic Charges: Tracing Thailand’S Drug Control And Capital Punishment History, Jonathan Hasson, Carolyn Hoyle
Brooklyn Journal of International Law
The Article examines Thailand's political economy of drugs and use of sanctions, including capital punishment, using a historical approach. It traces Thailand's nation building and emergence as a global hub for illicit drugs against the backdrop of European and US interventions since the colonial era. The Article reveals how Western concepts and discourses were appropriated by Thai elites to advance local agendas while suppressing democratic movements. The Article explores how the drug trade became entangled with government corruption, militarization, and extrajudicial state violence which often targeted ethnic minorities. In light of recent cannabis policy changes, the Article considers the historical …
Amending The Foreign Sovereign Immunity Act To Promote Accountability For Violations Of Peremptory Norms Of International Law, Joshua Newman
Amending The Foreign Sovereign Immunity Act To Promote Accountability For Violations Of Peremptory Norms Of International Law, Joshua Newman
Brooklyn Journal of International Law
The current state of the United States legal system, and international law at large, fails to afford victims of violations of international law with proper redress, when those violations were facilitated by a domestic taking. The Foreign Sovereign Immunity Act provides foreign sovereigns immunity from the jurisdiction of United States courts when those foreign sovereigns effectuate of a violation of international law through domestic takings. Courts have attempted to circumvent the restrictions of the Foreign Sovereign Immunity Act with exceptions such as the genocide exception. Unfortunately, the Supreme Court’s recent decision in Federal Republic of Germany v Philipp renounced the …
Labor Enforcement In The Us-Mexico-Canada Agreement: Design, Motivation, And Reality, Inu Manak, Alfredo Carrillo Obregon
Labor Enforcement In The Us-Mexico-Canada Agreement: Design, Motivation, And Reality, Inu Manak, Alfredo Carrillo Obregon
Brooklyn Journal of International Law
The United States-Mexico-Canada Agreement (USMCA) includes a novel feature in the agreement’s dispute settlement provisions: the Rapid Response Labor Mechanism (RRM). The stated purpose of the RRM is to ensure the remediation of a denial of collective bargaining rights for workers in certain covered facilities. Its novelty is that it does not follow the typical labor claims processes as found in previous trade agreements, nor is it structured like traditional state-to-state dispute settlement. Primarily, it provides a means to take swift action against a facility when the complainant deems that a denial of specific labor rights is taking place. Essentially, …
Public Participation In The Constitution-Making Process: The Afghan Experiment, Shamshad Pasarlay
Public Participation In The Constitution-Making Process: The Afghan Experiment, Shamshad Pasarlay
Brooklyn Journal of International Law
This Article explores the public participation process conducted during the drafting of Afghanistan’s 2004 Constitution. It examines scores of questionnaires, public comments, written submissions and minutes of town hall meetings that the framers used to gather public opinion and input. The Article highlights that the makers of the 2004 Constitution of Afghanistan designed and implemented an extensive public participation process, but public opinion did not have a real impact on constitutional outcomes. Instead, the content of the constitution was settled by the political elites whose agreement was needed for constitutional ratification. Drawing on this case study, the paper suggests that …
Enough Excuses On Drug Importation: A New Transnational Paradigm For Fda Regulation And Lower Us Drug Prices, Gabriel Levitt
Enough Excuses On Drug Importation: A New Transnational Paradigm For Fda Regulation And Lower Us Drug Prices, Gabriel Levitt
Brooklyn Journal of International Law
The US Food and Drug Administration (FDA), which enforces drug safety laws, asserts that under most circumstances the importation of prescription drugs is illegal. Yet because of high drug prices in the United States, over the past couple of decades, tens of millions of Americans have imported prescription drugs for personal use. For many, this was their only way to afford them. A unique array of federal laws, regulations, and policies, including the de facto decriminalization of the practice of personal drug importation, have in effect permitted personal drug importation. The same exceptions, however, are not available for commercial drug …
African Courts And International Human Rights Law, John Mukum Mbaku
African Courts And International Human Rights Law, John Mukum Mbaku
Brooklyn Journal of International Law
The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …
Tailspin: Examining The Distortive Effects Of The Airbus-Boeing Duopoly On Trade Dispute Resolution Between The United States And European Union, Sam Bhat
Brooklyn Journal of International Law
This Note surveys the perverse effects of the Airbus–Boeing dispute on international trade, examining how this unique and unprecedented duopoly challenges WTO agreements regarding state assistance to domestic manufacturers of large civil aircraft. This trade dispute has precipitated significant consequences for industries unrelated to aircraft manufacturing on both sides of the Atlantic. Theoretically, the WTO’s dispute resolution framework is designed to maintain an undistorted status quo between member states. The case of Airbus–Boeing, however, has shown that a duopoly conflict masquerading as a WTO dispute leads to escalating tariffs with substantial repercussions. This is the costliest dispute in the history …
Is Investment Arbitration An Effective Alternative To Court Litigation? Towards A Smart Mix Of Litigation And Arbitration In Resolving Investment Disputes, Wanli Ma, Michael Faure
Is Investment Arbitration An Effective Alternative To Court Litigation? Towards A Smart Mix Of Litigation And Arbitration In Resolving Investment Disputes, Wanli Ma, Michael Faure
Brooklyn Journal of International Law
This article analyzes litigation and arbitration as commonly used methods for dispute resolution, more particularly between foreign investors and host states. It compares investor-state dispute settlement (ISDS) via investor-state arbitration with dispute resolution via domestic courts in the host state. The article adopts a goal-based approach for assessing the effectiveness of international adjudication and analyzes the extent to which the current ISDS system is aligned with its predetermined goals. The article starts by identifying four goals of ISDS: 1) fair and efficient dispute resolution, 2) norm compliance, 3) facilitating the objectives of the investment law regime, and 4) legitimizing the …
The Uncitral Model Law And Secured Transactions Law Reform, Louise Gullifer
The Uncitral Model Law And Secured Transactions Law Reform, Louise Gullifer
Brooklyn Journal of Corporate, Financial & Commercial Law
No abstract provided.
Level-Up: Towards A More Competitive & Labor-Friendly E-Sports Industry, Andrew Ramstad
Level-Up: Towards A More Competitive & Labor-Friendly E-Sports Industry, Andrew Ramstad
Brooklyn Journal of International Law
Despite humble beginnings, the advent of the modern internet has seen the explosion of e-sports into an industry commanding hundreds of millions of annual viewers and nearly a billion dollars in annual advertising revenue. Facilitating this expansion has been a shift from independently run competitive e-sports leagues to leagues created and operated by the developers of the league’s underlying game. This vertical integration by developers increases e-sports accessibility to viewers, but at the cost of decreased player bargaining power and professional flexibility. The integration further incentivizes ever-increasing working hours and self-destructive or rule-breaking behavior by players to stay competitive. This …
Apocalypse Ahoy: How The Cruise Industry Boom Is Harming The World’S Oceans And Problems With Enforcing Environmental Regulations, Nicholas J. Sarnelli
Apocalypse Ahoy: How The Cruise Industry Boom Is Harming The World’S Oceans And Problems With Enforcing Environmental Regulations, Nicholas J. Sarnelli
Brooklyn Law Review
The global cruise line industry enjoyed an incredible surge in popularity before the coronavirus pandemic. While the industry nearly sank in the wake of the pandemic, cruise lines are poised to continue to enjoy record-breaking profits while continuing to build larger and more opulent ships. This boom exacts a heavy toll on the environment, as cruise ships burn dirty fuel and dump dirty water into the world’s oceans. The current international legal framework for regulating the world’s shipping industry allows companies to effectively select which nation’s environmental laws to submit to, with ships flying under so-called “flags of convenience”. While …
Remedies For Government Breach: Lessons From The United States And A Zone Of Appealable Remedies For Southeast Asia, Benjamin D. Black
Remedies For Government Breach: Lessons From The United States And A Zone Of Appealable Remedies For Southeast Asia, Benjamin D. Black
Brooklyn Law Review
Though international investment treaties may supplant domestic contract law in cross-border government contracts, their limited use in Southeast Asia informs the continued importance of clear remedies for a government breach of contract under domestic law. As investment from China’s Belt and Road Initiative continues to flow into the region, private parties require clear rules and remedies when a government breaches a contract. This note argues that the lack of clear and codified public contract law in Southeast Asia presents a substantial risk to private contractors and that the extreme variance in public contract law is detrimental to both parties involved. …
Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede
Gulf Of Guinea And Maritime (In)Security: Musings On Some Implications Of Applicable Legal Instruments, Edwin E. Egede
Brooklyn Journal of International Law
The Gulf of Guinea (GoG) is an enormous and diverse region consisting of approximately 6,000 km of coastline extending from Senegal to Angola. It is a maritime area of strategic importance because it is resource-rich with hydrocarbons, fish and other resources. Also, it is important as a vital maritime transit hub. Unlike certain other shipping lanes that have been identified as chokepoints, the GoG, because of its width, is not susceptible to blockades and major shipping accidents. Previously the maritime (in)security in the GoG had not received the same high-profile attention from the international community as the situation in the …
High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi
Brooklyn Journal of International Law
Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …
Transnational Legal Process: An Evolving Theory And Methodology, Regina Jefferies
Transnational Legal Process: An Evolving Theory And Methodology, Regina Jefferies
Brooklyn Journal of International Law
Harold Koh introduced Transnational Legal Process in 1996 as a constructivist theory of international legal compliance which draws lessons from international legal theory and the discourse between international law and international relations scholarship. This article situates Transnational Legal Process (TLP) within the broader literature on international legal compliance and traces the theory’s evolution over the years, highlighting scholarship which addresses three critical theoretical limitations: (1) insufficient description of the actors and processes of norm internalization; (2) insufficient explanation of why States internalize certain norms; and (3) insufficient identification and description of norm-creation processes. This article uses the legal origins of …
Protecting Internet Access: A Human Rights Treaty Approach, Harpreet Kaur
Protecting Internet Access: A Human Rights Treaty Approach, Harpreet Kaur
Brooklyn Journal of International Law
With the evolution of the internet, the world has also seen a marked increase in government-ordered internet shutdowns and restrictions, sometimes with dubious justifications and sometimes with no justification at all. As people have become increasingly reliant on the internet for their day-to-day activities and to keep up with important news, internet restrictions often disrupt lives and violate people’s civil and human rights. While no international law directly protects internet access, it is implicitly advocated for under the freedom of opinion and expression. The upward trend of internet restrictions, however, suggests that an implied protection of access to a necessary …
From The Golden Gate To London: Bridging The Gap Between Data Privacy And The Right Of Publicity, Kristin Kuraishi
From The Golden Gate To London: Bridging The Gap Between Data Privacy And The Right Of Publicity, Kristin Kuraishi
Brooklyn Journal of International Law
Currently, there is no global standard or recognition for the right of publicity. Even within the United States, the recognition, scope, and protections vary by state. As the world becomes increasingly reliant on social media for news, information, communication, and recommendations, micro-influencers and non-celebrities require a way to control their developed and curated name, image, and likeness from unauthorized commercial uses by others. Advertising is occurring more frequently online, and brands recognize the power that micro-influencers have on commerce. Some countries, like the United Kingdom, do not recognize the right of publicity, potentially leaving many individuals without recourse for the …
Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane
Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane
Brooklyn Journal of International Law
The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …
Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker
Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker
Brooklyn Journal of International Law
Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …
Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes
Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes
Brooklyn Journal of International Law
The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …