International Law Commons^™

A Rules-Based Approach To Jam’S Restrictive Immunity: Implications For International Organizations, Desiree Leclercq

Scholarly Works

U.S. jurisprudence has granted international organizations immunity from suit, even when they carry out operations that violate U.S. rules. In the recent Jam v. Int’l Fin. Corp., the Supreme Court reversed this jurisprudence and restricted the immunity of international organizations. Jam is a landmark decision, but the Court’s failure to address critical questions concerning the scope and meaning of its restricted immunity has led to legal uncertainty and criticism. Under both predominant theories in the international organization discourse – functionalism and constitutionalism – scholars predict that Jam will have a deleterious impact on international organizations. Given the theories’ emphasis on …

The International Law Origins Of American Federalism, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Courts and commentators have long struggled to reconcile prominent federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in the Constitution's text and are the product of improper judicial activism. This Article suggests a way to reconcile federalism and textualism by looking to a surprising source-international law. The Constitution contains numerous references to "States," and the …

The Complexities Of Democracy, Development, And Human Rights In China's Belt And Road Initiative, Diane Desierto

Journal Articles

China's Belt and Road Initiative (BRI)-a dense network of China-funded multi-year infrastructure projects in over 65 countries from the Western Pacific to the Baltic Sea, collectively aiming to establish China's strategic "Maritime Belt" and "Silk Road" connectivity using an estimated range of USD$1 Trillion to USD$8 Trillion--is as unprecedented phenomenon in sovereign project financing and bilateral investment lending, since the United States' grant of USD $800 Billion for the Marshall Plan was for Europe's post World War II reconstruction. The scale, scope, and terms of BRI projects remain shrouded in relative opacity, with China as of this writing only incrementally …

China's Maritime Law Enforcement Activities In The South China Sea, Diane Desierto

Journal Articles

China, one of the territorial and maritime claimants of the South China Sea, declared in April 2020 that it had created two new administrative districts in the South China Sea:

Xisha district, covering the Paracel Islands and Macclesfield Bank, and Nansha district covering the Spartly [sic] Islands .... The new administrative districts are to be under the authority of the local government in Sansha, a city located on Woody Island which is administratively part of Hainan province. The Xisha district will be based in Sansha while the Nansha district will operate from Fiery Cross Reef in the Spratlys.

Sansha City …

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …

Making Sense Of Customary International Law, Monica Hakimi

Faculty Scholarship

This Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law — routinely invoked and applied in a broad range of settings — and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?

The Article argues that the problem lies less in the everyday operation of CIL than in the …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Intellectual Property Law And Redressive Autonomy, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

Introduction: The Roles Of The Restatements In U.S. Foreign Relations Law, Paul B. Stephan, Sarah H. Cleveland

Faculty Scholarship

This introductory chapter serves as a foreword for the volume. It sketches the history of past restatements and the evolution of the latest one. The first (confusingly called Second) Restatement of the Foreign Relations Law of the United States brought widespread attention to the term “foreign relations law.” It staunchly defended the proposition that foreign relations, no matter how imbued with discretion and prerogative, still must rest on law. The Third Restatement, prepared during a period of what to many seemed constitutional retrenchment and a loosening of judicial supervision over public life, offered a robust defense of the proposition that, …

The Proportionality Rule And Mental Health Harm In War, Sarah Knuckey, Alex Moorehead, Audrey Mccalley, Adam Brown

Faculty Scholarship

The foundational international humanitarian law rule of proportionality — that parties to an armed conflict may not attack where civilian harm would be excessive in relation to the anticipated military advantage — is normally interpreted to encompass civilian physical injuries only. Attacks may cause significant mental harms also, yet current interpretations of the law lag behind science in understanding and recognizing these kinds of harms. This article analyzes legal, public health, psychology, and neuroscience research to assess the extent to which mental health harms should and could be taken into account in proportionality assessments.

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …

Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency costs …

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Ordinary Tort Litigation In China: Law Versus Practical Justice?, Benjamin L. Liebman

Faculty Scholarship

This essay examines the roles courts play in tort litigation in China, in particular in litigation resulting from death and injury on China’s roads. At first glance traffic accident litigation in China appears to be an area in which courts play minor roles. The police, not courts, are the primary fact-finders. China’s mandatory automobile insurance system has clear guidelines for compensation levels and imposes nearly strict liability in most traffic accident cases. Courts’ roles are, at least in law, largely relegated to calculating damages. Chinese law provides schedules for assessing damages based on average local income levels, and thus outcomes …

The Self-Styled 'Autonomy' Of International Arbitration, George A. Bermann

Faculty Scholarship

Among international legal regimes, international arbitration has traditionally claimed for itself a remarkable degree of autonomy from other international regimes, an autonomy that enables it to enjoy a remarkable measure of self-determination. Its assertions of autonomy take a number of different forms and exhibit considerable resilience. Autonomy does allow international arbitration to develop in accordance with norms that are specific to it, but it also poses challenges that need, even for international arbitration’s own well-being, to be acknowledged and addressed.