International Law Commons^™

Justice Without Fear Or Favour? The Uncertain Future Of The International Criminal Court, Leila Nadya Sadat

Scholarship@WashULaw

This essay traces the history of the International Criminal Court from its establishment in 1998 until the current day. It briefly surveys the history of the Court’s founding and evokes many of its current challenges and innovative aspects of its jurisprudence, particularly regarding jurisdiction, immunities, and admissibility, including decisions relating to the Situations in Afghanistan, Bangladesh/Myanmar, Libya, Palestine, and Sudan. As the essay notes, although many challenges have emerged from internal difficulties the Court has faced or design elements of the Statute, external challenges arising from the geopolitical environment within which it operates exist as well. Despite these problems, which …

Asian Land Conflicts And The Great Transformation, Brian Z. Tamanaha

Scholarship@WashULaw

In The Great Transformation (1944), Karl Polanyi described the modern era in terms of the transformation of labor, land, and money into commodities, and the expansion of the market as the basic organizing principle of society—a transformation championed by liberal economic theory. This transformation brought enormous social dislocation and mass poverty, while the wealthy benefited the most. Polanyi opposed the nigh total destruction of traditional communities that had previously given meaning to peoples’ lives, and the dismal living conditions and economic insecurity of laboring masses that resulted. Central elements of Polanyi’s account are playing out today across the terrain of …

Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha

Scholarship@WashULaw

This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provides readers with a deep sense of legal pluralism and an appreciation of its complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, showing the continuity from past to present, I discuss the transformation-invention of customary law, socially embedded village tribunals, enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law …

Principles Of International Law And The Adoption Of A Market-Based Mechanism For Greenhouse Gas Emissions From Shipping, Hillary Aidun, Daniel J. Metzger, Michael B. Gerrard

Faculty Scholarship

Emissions from shipping are a significant driver of human-induced climate change. International action to date has not succeeded in setting those emissions on a sustainable trajectory. The International Maritime Organization has committed to implementing an effective, international approach to tackle international shipping’s contribution to climate change.

This paper considers international law principles, exploring whether and how these principles may provide a basis for the IMO to address those contributions. The polluter pays principle, which counsels that whoever produces pollution should cover the costs their pollution imposes on others, is a doctrine of international law that offers strong support for the …

Making America A Better Place For All: Sustainable Development Recommendations For The Biden Administration, John C. Dernbach, Scott E. Schang, Robert W. Adler, Karol Boudreaux, John Bouman, Claire Babineaux-Fontenot, Kimberly Brown, Mikhail Chester, Michael B. Gerrard, Stephen Herzenberg, Samuel Markolf, Corey Malone-Smolla, Jane Nelson, Uma Outka, Tony Pipa, Alexandra Phelan, Leroy Paddock, Jonathan D. Rosenbloom, William Snape, Anastasia Telesetsky, Gerald Torres, Elizabeth Ann Kronk Warner, Audra Wilson

Faculty Scholarship

In 2015, the United Nations Member States, including the United States, unanimously approved 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The SDGs are nonbinding; each nation is to implement them based on its own priorities and circumstances. This Article argues that the SDGs are a critical normative framework the United States should use to improve human quality of life, freedom, and opportunity by integrating economic and social development with environmental protection. It collects the recommendations of 22 experts on steps that the Biden-Harris Administration should take now to advance each of the SDGs. It is part of …

Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee

Scholarly Works

Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …

Governing Science And Technology Under The International Economic Order: Regulatory Divergence And Convergence In The Age Of Megaregionals By Shin-Yi Peng, Han-Wei Liu And Ching-Fu Lin, Henry S. Gao, Weihuan Zhou

Research Collection Yong Pung How School Of Law

Trade and technology have a long history of interdependence. It was the trade along the ancient silk road that helped to spread the technologies of China – such as paper-making, gun power, compass, and moveable type printing – to Europe. These technologies helped to launch the Renaissance, the Reformation, and the Great Discoveries, which in turn set in motion globalization as we know today. As we enter the third decade of the twenty-first century, the role of science and technology grows even stronger in international trade. For example, the advancement of information and communications technology (ICT) has greatly facilitated the …

Interpretive Entrepreneurs, Melissa J. Durkee

Scholarly Works

Private actors interpret legal norms, a phenomenon I call "interpretive entrepreneurship." The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of "post hoc" international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial …

Measuring The Art Of International Law, Mary Ellen O'Connell

Journal Articles

Social science methodology is a useful adjunct to law, but it cannot replace the humanist ideas that constitute law. Scholars developed social science at the end of the nineteenth century and were soon using it to measure and assess material facts associated with far older intellectual disciplines like law. They have been able to confirm facts about such issues as the origins and impact of law. These studies rely, however, on a humanist definition of the object of the study. Humanist methods reveal that law is the result of transcendent concepts developed through natural law method. By the early twenty-first …

Should Human Rights Practice Be Rights-Based?, Sarah Knuckey, Margaret Satterthwaite

Faculty Scholarship

Human rights scholars and organizations often call on governments to adopt ‘human rights-based approaches’ (HRBAs) to many policy areas, from climate change to health policy. HRBAs identify rights and obligations, and advance the principles of participation, accountability, equality, and non-discrimination. This chapter argues that HRBAs have been exported to many fields without ever being sufficiently integrated within human rights advocacy. We find that NGOs often fail to adhere to foundational human rights principles in their own work, reproducing unjust power hierarchies, objectifying victims, and disempowering rights-holders. Were HRBAs adopted by more human rights organizations, the face of human rights advocacy …

Annual Hudson Medal Discussion, Catherine Amirfar, Paul Reichler, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Welcome everyone to the 2021 Hudson Medal Presentation. The Manley O. Hudson Medal, the Society’s highest honor, has been awarded since 1959 to a distinguished person of American or other nationality for outstanding contributions to scholarship and achievement in international law. The medal has been conferred on many luminaries, including Rosalyn Higgins, Tom Franck, Michael Reisman, Eli Lauterpacht, John Jackson, Bruno Simma, Peter Trooboff, and Stephen Breyer.

I would like to thank Paul Reichler, Larry Martin, and ASIL Law Firm Leadership Circle Partner Foley Hoag LLP, for sponsoring this program—their eighth year of continuous sponsorship.

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

Interpretive Entrepreneurs, Melissa (M.J.) Durkee

Scholarship@WashULaw

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial …

Introduction To The Symposium On Frederic Megret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa (M.J.) Durkee

Scholarship@WashULaw

Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …

Welcoming Participation, Avoiding Capture: A Five-Part Framework Between Participation And Capture: Non-State Actor Participation In International Rule-Making, Melissa (M.J.) Durkee

Scholarship@WashULaw

What role should non-state actors have in the work of international organizations? It is particularly fitting that this panel is titled “between participation and capture,” because the phrase calls up the conflicting values that animate this question. When we think of non-state actors “participating” in the work of international organizations, we think about open, transparent organizations that are receiving the benefit of diverse perspectives and expertise. We may associate this phrase with process, access, and legitimacy in governance. On the other hand, when we think about non-state actors “capturing” the agenda of international organizations, we have a conflicting set of …

Crimes Against Humanity: Little Progress On Treaty As Un Legal Committee Concludes Its Work, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

The United Nations General Assembly’s legal committee again missed the opportunity to take action this year on the draft text of a new treaty on crimes against humanity proposed by the International Law Commission. The failure, in the form of a vote Nov. 18 on a draft resolution that simply took note of the draft articles, leaves a critical gap in the legal architecture for preventing and punishing mass atrocity crimes. The result deprives a range of victims and survivors the effective protection and justice they deserve.

The Rules Of The (Belt And) Road: How Lawyers Participate In China's Outbound Investment And Infrastructure Initiatives, Lawrence J. Liu

Scholarship@WashULaw

This article provides a bottom-up view of China’s Belt and Road Initiative (BRI) though an empirical examination of how and why domestic lawyers are engaged in BRI investment and infrastructure projects. Drawing on an original dataset of biographical information of, and eleven semi-structured interviews with, lawyers identified by the state as “BRI and Cross-Border Legal Experts,” I examine these lawyers’ demographic characteristics, the knowledge they rely upon in their work, and their motivations. I find that China’s BRI lawyers work and speak in ways similar to cross-border lawyers from countries like the United States. At the same time, these state-adjacent …

From The Frying Pan To The Fire: Scotus’ Fsia Inaction As Further Permitting Executive Branch Intervention In “Takings Exception” Cases And Its Consequences In Forcing Holocaust Plaintiffs To Return To Europe, Richard H. Weisberg

Articles

The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a …

The Future Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

Although international commercial arbitration is not subject to as much criticism as investor-State arbitration, it is nonetheless facing challenges going forward. These challenges are several, and only some can be addressed in this chapter. Some relate to concerns that have been with international arbitration for a long time. These include costs, delay and excessive formality, as well as arbitrator neutrality. Others – arbitration ethics, diversity, and transparency – are not new, but are taking on greater urgency. Still others simply represent new developments more or less extrinsic to international arbitration but with which international arbitration must cope. Among these changes …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente

Faculty Scholarship

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …