International Law Commons^™

Foreign Relations Law And The Purported Shift Away From "Exceptionalism", Curtis A. Bradley

Faculty Scholarship

In prior writings, I coined the term “foreign relations exceptionalism” to refer to the view that the federal government’s foreign affairs powers are subject to a different, and generally more relaxed, set of constitutional restraints than those that govern its domestic powers. In a recent article in the Harvard Law Review, The Normalization of Foreign Relations Law, the authors contend that during the past twenty-five years there has been a revolutionary shift away from foreign relations exceptionalism, that this “normalization” trend is likely to continue, and that this development should be welcomed and encouraged. This essay points out various conceptual …

Transnationalizing Comparative Law, Ralf Michaels

Faculty Scholarship

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

Protecting Equine Welfare And International Consumers Of Horse Meat: A Proposal For The Renewal Of Horse Slaughter In The United States, Natalie Anderson

San Diego International Law Journal

This Comment will address how the de facto ban on horse slaughter and the shift in destination of American horses bound for harvesting has had unintended negative consequences for equine welfare and for the safety of international consumers of horse meat. Part II analyzes the role of the horse in American history, and how this has shaped horse slaughter legislation and the international trade of American horse meat. Part III examines regulations and guidelines for the humane transportation, handling, and slaughter of horses in the United States, Canada and Mexico, and demonstrates how poorly-framed legislation, a lack of formal agreements …

A Comparison Of The Jurisprudence Of The Ecj And Efta Court On The Free Movement Of Good In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfue And Article 11 Of The Eea?, Jarrod Tudor

San Diego International Law Journal

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

Using The Ability To Host World Events As Incentive To Procure Voluntary Anti-Discrimination Legal Reform, Brett M. Crowell

San Diego International Law Journal

The International Olympic Committee (IOC) and Federation Internationale de Football Association (FIFA) have the power to effect global change. Countries vie for the honor of hosting world events such as the Olympic Games and the World Cup because of the prestige and the economic and political gains those events provide. The IOC and FIFA can and should use the incentive of hosting one of these events to procure legal reform in myriad humanitarian equality issues such as sexual orientation, gender, and race. These organizations can prompt this change by requiring that host countries uphold a set of minimum legal standards …

The Hague Principles, The Cisg, And The 'Battle Of Forms', Peter Winship

Faculty Journal Articles and Book Chapters

This paper considers the relation of the Hague Principles on Choice of Law in International Commercial Contracts to the United Nations Convention on Contracts for the International Sale of Goods (CISG) when parties to an international contract of sales refer during negotiations to their standard terms and these standard terms include choice-of-law terms that conflict.

Self-Interest Or Self-Inflicted? How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the …

Concept And Contract In The Future Of International Law, John Linarelli

Scholarly Works

This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest …

Complicity In Business And Human Rights, James G. Stewart

All Faculty Publications

These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law writ …

The Procedural Aspect Of The Rule Of Law: India As A Case Study For Distinguishing Concept From Conception, Karina T. Hwang

CMC Senior Theses

In this thesis, the concept of the procedural aspect of the Rule of Law will be distinguished from what I argue are conceptions that are falsely promulgated as concept. The different aspects of the Rule of Law—form, substance, and procedure— are helpful in making the distinction between concept and conception. Examining procedure within the Rule of Law is particularly important, and I define a broader set of requirements of the concept of the procedural aspect of the Rule of Law. This concept is applied to understand the Indian conception of the Rule of Law, a particularly interesting case that brings …

Mind The Gap: Can Developers Of Autonomous Weapons Systems Be Liable For War Crimes?, Tim Mcfarland, Tim Mccormack

International Law Studies

A recurrent response to the development of increasingly autonomous weapons systems involves questions of accountability for serious violations of the law of armed conflict. Opinion is divided across a spectrum ranging from claims of an accountability vacuum and consequent calls for a complete ban to assertions that the weapons will present no new challenges and that the existing legal framework is capable of adaptation to emerging technologies. This article focuses on the expanded role played by developers of autonomous weapons systems. It describes the novel contributions made by developers of these advanced systems that raise the potential for them to …

Autonomous Weapons And International Humanitarian Law: Advantages, Open Technical Questions And Legal Issues To Be Clarified, Marco Sassoli

International Law Studies

This contribution argues that autonomous weapons systems may have advantages from the perspective of ensuring better respect for international humanitarian law (IHL). This may be the case if they are one day capable of perceiving the information necessary to comply with IHL, can apply IHL to that information, and if it can be ensured that they will not deviate from the ways in which humans have programmed them. In the view of the author, targeting decisions do not require subjective value judgments a machine would be unable to make. In order to ensure IHL is respected with regard to use …

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew Waxman

International Law Studies

As increasingly automated—and in some cases fully autonomous—weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose great challenges, however, with regard to law of armed conflict rules regulating the use of weapons. To adapt existing law to meet those challenges, we propose a three-tiered approach …

Hamoked: Center For The Defense Of The Individual V. Minister Of Defense, Elyakim Rubinstein, Esther Hayut, Noam Sohlberg

Translated Opinions

The petition concerned the Respondents’ authority to employ reg. 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Reg.119 or the Regulation) in a manner that would permit the forfeiture, demolition and sealing off of the homes of those suspected of involvement in hostile activity against the State of Israel. The Petitioners sought a declaratory order stating that the use of Reg. 119 in that manner and for such purposes is unlawful, inasmuch as, in their view, it contravenes international law and Israeli constitutional and administrative law.

The High Court of Justice (per Justice E. Rubinstein, Justices N. Sohlberg and …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

American And Other National Variations On The Theme Of International Commercial Arbitration, Thomas E. Carbonneau

Georgia Journal of International & Comparative Law

No abstract provided.

Minelaying And The Impediment Of Passage Rights, Wolff Heintschel Von Heinegg

International Law Studies

Since their first extensive use in the 1904–05 Russo-Japanese War naval mines have continued to pose a considerable threat to innocent shipping. States reacted by adopting the 1907 Hague Convention VIII, which has been the only international instrument on the matter to date. In view of the fact that more than 80 percent of imports and exports are shipped by sea, freedom of navigation and, in particular, transit and archipelagic sea lanes passage rights must be preserved to the greatest extent possible. The present article deals with the question of whether international rules and principles provide effective protection of international …

Appendix C - Office Of The United States Trade Representative Washington, D.C.-Fact Sheet, "Special 301" On Intellectual Property, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

Panel Iii--General Discussion, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

International Trade In Services From The Japanese Viewpoint, Masato Dogauchi

Georgia Journal of International & Comparative Law

No abstract provided.