International Law Commons^™

Crossing The Abyss: A Comparative Analysis Of The Enforceability Of Preliminary Agreements, Marta Infantino, Larry A. Dimatteo, Jingen Wang, Eleni Zervogianni

Emory International Law Review

A major unresolved issue in international business transactions relates to the enforceability of preliminary agreements. Preliminary agreements cover a long list of instruments commonly used in most sectors of the economy. The common presumption is that these agreements are not enforceable. The correct answer is much more nuanced. For example, a preliminary agreement may be held to be unenforceable but at the same time be the basis for legal liability. There are strong differences between the civil and common laws on the issues of good faith negotiations and the enforceability of preliminary agreements, but there is also sustained uncertainty within …

Women, International Human Rights Law, And The Right To Adequate Housing In Africa, John Mukum Mbaku

Emory International Law Review

In many African countries, the rights of women and girls to adequate housing are under threat and remain vulnerable to violation by state- and non-state actors. This is so even though these rights are guaranteed by international human rights instruments and national constitutions. Of particular note is the existence of customary laws that discriminate against women and frustrate their ability to realize the right to adequate housing. To enhance the ability of women to realize their right to adequate housing, each African State must domesticate the various international and regional human rights instruments that guarantee this right in order to …

The Rights Of Stateless Children Born From Cross-Border Reproductive Care, Carson Cook

Emory International Law Review

No abstract provided.

Lessons From United States Supreme Court Jurisprudence For Resolving Australian Interstate Groundwater Disputes, Jack Dewinter

Emory International Law Review

No abstract provided.

Smart Regulation: Lessons From The Artificial Intelligence Act, John Hillman

Emory International Law Review

The European Union (EU) has recently announced that it will consider a proposal to systematically regulate artificial intelligence (AI) systems. This regulation will add to the legacy of other data regulation acts adopted in the EU and move the EU closer to a comprehensive framework through which it can address rapidly evolving technologies like AI. The United States has yet to implement data regulation or AI regulation legislation at the federal level. This inaction by the United States could negatively impact global cooperation with the EU and China and innovation within the United States. The United States is currently the …

Industry Groups In International Governance: A Framework For Reform, Melissa J. Durkee

Scholarly Works

At a time when many international organizations are focusing on bringing companies on board as partners for important goals like climate mitigation and adaptation, but even shareholders of major multinational companies are seeking to discipline pernicious lobbying by trade associations, it is important to evaluate how to maximize the benefit and restrain the harms of business participation in international governance. This article offers a brief history of engagement between international organizations and industry and trade associations, reviews arguments for embracing or restraining the participation of those groups, and develops a five-part framework for regulations to govern their access.

The Pledging World Order, Melissa J. Durkee

Scholarly Works

There is an emerging world order characterized by unilateral pledges within a legal or “legal-ish” architecture of commitments. The pledging world order has materialized in the international legal response to climate change and in other diverse sites. It crosses and blurs the public-private divide. It erodes distinctions between multilateralism and localism, law and not-law, and progress and stasis. It is both a symptom of and a contributor to the dismantling of the Westphalian and postwar orders. Its report card is mixed: While pledging can be highly ineffective as a legal technology, the pledging world order may respond to some legitimacy …

A Guide To Mireille Delmas-Marty's “Compass”, Diane Marie Amann

Scholarly Works

This essay appears as the Afterword (pp. 55-64) to a volume featuring an important work by the late Mireille Delmas-Marty (1941-2022) titled A Compass of Possibilities: Global Governance and Legal Humanism. A Collège de France de Paris law professor and one of the pre-eminent legal thinkers of her generation, Delmas-Marty and the essay’s author were longtime colleagues and collaborators. The volume contains an English translation of a 2011 lecture by Delmas-Marty, originally titled “Une boussole des possibles: Gouvernance mondiale et humanismes juridiques.” Amann’s essay surveys that writing, in a manner designed to acquaint non-francophone lawyers and academics with Delmas-Marty’s …

Strengthening Labor Rights In The Trans Pacific Partnership Agreement: A Lost Opportunity?, Desiree Leclercq, Karen Curtis

Scholarly Works

This Chapter was initially drafted during the Obama Administration. The Trans-Pacific Partnership Agreement (TPP) had been negotiated and, although it had not yet been ratified in the United States, the Administration and majority of policymakers were in favor of its implementation. Since that time, the United States Administration changed and the United States withdrew from participation in the TPP. While unfortunate, the Administration’s political decision to withdraw from the TPP does not come as a surprise; an examination of the negotiating history of those provisions illuminates a stark political divide within the United States, even prior to the change in …

Harmonisation In The Rules Governing The Recognition Of Foreign Judicial Ship Sales, Yingfeng Shao

World Maritime University Ph.D. Dissertations

Ships, the high-value asset used in both seagoing and inland navigation, and in which various legal and natural persons have interests, must be secured against legal risks arising from any cross-border legal divergence. Legal certainty of ownership of the ship is therefore desirable but it is under challenge with regard to the judicial sale of a ship: the effects of a judicial sale may be denied in a jurisdiction other than the place where it was sold under the principles of state jurisdiction.

Multiple efforts have been made to address legal uncertainty. Particularly important is a new treaty governing the …

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Akron Law Faculty Publications

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong

Research Collection Yong Pung How School Of Law

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This paper argues that under the common law, knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort …

Developing The Lex Mercatoria, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

The historical lex mercatoria, or law merchant, is said to have emerged from the customary practices of ancient and medieval seamen and traders who found themselves in need of a common set of rules to govern mercantile trade; rules which would be broadly applicable (and acceptable) to trading parties regardless of their places of origin. To the extent that such a body of legal rules did in fact exist, its significance derived from two main features: (1) its independence (since it was not promulgated by any one decision-maker or legislator, but was drawn from the established practice of the merchant …

Banning Autonomous Weapons: A Legal And Ethical Mandate, Mary Ellen O'Connell

Journal Articles

From the Introduction

The ongoing debate over the law and ethics of lethal autonomous weapon systems (LAWS) reflects two very different perspectives. One sees the development of such weapons as an essential part of national security that depends on a strong military in possession of the latest weapons technology. If legal or ethical norms impede staying ahead in the race for new weapons, those norms need to be reinterpreted or modified. The other perspective maintains that security depends first and foremost on robust respect for legal principles that are derived from fundamental moral principles. Such principles are not subject to …

Flexible Institution Building In The International Anti-Corruption Regime: Proposing A Transnational Asset Recovery Mechanism, Laurence R. Helfer, Cecily Rose, Rachel Brewster

Faculty Scholarship

Asset recovery is a fundamental principle of anti-corruption law, without which the financial damage from corruption cannot be repaired. Yet recovering assets is notoriously difficult and time-consuming, and the United Nations Convention Against Corruption provides little technical or institutional support to facilitate such returns. To remedy this, we propose the creation of a transnational asset recovery mechanism that could provide myriad services to states upon request, including gathering and publishing information, providing technical assistance and capacity building, helping to conclude agreements on asset return, and monitoring returned funds. Theoretically, we introduce the concepts of customizability and selectability to explain why …

The Pledging World Order, Melissa (M.J.) Durkee

Scholarship@WashULaw

There is an emerging world order characterized by unilateral pledges within a legal or “legal-ish” architecture of commitments. The pledging world order has materialized in the international legal response to climate change and in other diverse sites. It crosses and blurs the public-private divide. It erodes distinctions between multilateralism and localism, law and not-law, and progress and stasis. It is both a symptom of and a contributor to the dismantling of the Westphalian and postwar orders. Its report card is mixed: While pledging can be highly ineffective as a legal technology, the pledging world order may respond to some legitimacy …

Privatizing International Governance, Melissa (M.J.) Durkee

Scholarship@WashULaw

Public-private partnerships of all kinds are increasingly common in the international system. Since United Nations Secretary-General Kofi Annan’s launch of the Global Compact in 2000, the United Nations has increasingly opened up to business entities. Now, the Sustainable Development Goals, the Global Compact, and the Guiding Principles on Business and Human Rights all encourage engaging with business entities as partners in developing and executing global governance agendas. These partnerships are seen by some as indispensable to sustainable development, international business regulation, climate change mitigation, and other global governance agendas. At the same time, UN climate change bodies have been criticized …

Space Law As Twenty-First Century International Law, Melissa (M.J.) Durkee

Scholarship@WashULaw

Space law’s current moment reflects international law’s current moment. That is, lawmaking processes aimed at updating international space law for the commercial space age reveal three larger themes about international lawmaking in the twenty-first century. These themes are: (a) evolutive lawmaking efforts by states; (b) the parallel development of laws in different fora by different actors; and (c) interpretive entrepreneurship by private actors. The themes are interrelated. They offer one story—but not the only possible story—about how international law develops when multilateral cooperation is out of reach. Together, the themes forecast a more pluralist international legal future, demanding new forms …

Incomplete Contracts And Future Data Usage, Jens Frankenreiter, Talia B. Gillis, Dan Svirsky

Scholarship@WashULaw

Most major jurisdictions require websites to provide customers with privacy policies. For consumers, a privacy policy's most important function is to provide them with a description of the online service provider's current privacy practices. We argue that these policies also serve a second, often-overlooked function: they allocate residual data usage rights to online services or consumers, including the power to decide whether a service can modify its privacy practices and use consumer data in novel ways. We further argue that a central feature of the E.U.'s General Data Protection Regulation (GDPR), one of the most comprehensive and far-reaching privacy regulatory …

Continued Positive Momentum On Crimes Against Humanity Treaty, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

As work on the International Law Commission’s (ILC) Draft Articles for a proposed crimes against humanity treaty (CAH Draft Articles) progresses following debate and discussion at the Sixth Committee of the U.N. General Assembly in October, States now have the opportunity to submit comments by Dec. 1. This process follows a two-year timetable laid out in the Nov. 18, 2022, Resolution 77/249 and builds on previous discussions, including the first resumed session, which took place Apr. 10-14, 2023.

This article will briefly update readers on the October session and highlight what might be expected in 2024 and beyond.