International Law Commons^™

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Publications

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, …

Revisiting The Tax Treatment Of Citizens Abroad: Reconciling Principle And Practice, Michael S. Kirsch

Journal Articles

In an increasingly mobile world, the taxation of citizens living abroad has taken on increased importance. Recent international administrative developments — most notably, the weakening of foreign bank secrecy and expansion of global information sharing norms — have further raised the profile of this issue. While U.S. law traditionally has taxed U.S. citizens living abroad in the same general manner as citizens living in the United States, a number of scholars have proposed abandoning the use of citizenship as a jurisdictional basis to tax. In its place, they would apply residence-based principles — i.e., exercising full taxing rights over U.S. …

China-African Investment Treaties: Old Rules, New Challenges, Won Kidane

Faculty Articles

This paper analyzes the existing China-African BITs and puts forward some suggestions for its improvement. The extraordinary rise in the last decade of Chinese investment in Africa continues to be a subject of profound curiosity. That is largely because it defies the centuries-old norm on who invests where. Traditionally, the bulk of foreign investment had flowed North-South but rarely South-South. Whenever and wherever it occurred, the means of its protection ranged from direct military intervention to a bona fide and equitable legal framework. China had experienced the full range of treatments in its long history of dealings with the West, …

The China-Africa Factor In The Contemporary Icsid Legitimacy Debate, Won Kidane

Faculty Articles

The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa's largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment …

The Margin Of Appreciation In International Investment Law, Julian Arato

Articles

Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent – and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach – one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible …

Unfriendly Unilateralism, Monica Hakimi

Articles

This Article examines a category of conduct that I call “unfriendly unilateralism.” One state deprives another of a benefit (unfriendly) and, in some cases, strays from its own obligations (noncompliant), outside any structured international process (unilateral). Such conduct troubles many international lawyers because it looks more like the nastiness of power politics than like the order and stability of law. Worse, states can abuse the conduct to undercut the law. Nevertheless, international law tolerates unfriendly unilateralism for enforcement. A victim state may use unfriendly unilateralism against a scofflaw in order to restore the legal arrangement that existed before the breach. …

Contemporary Practice Of The United States Relating To International Law, April 2014, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress

Contemporary Practice Of The United States Relating To International Law, October 2014, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Condemns Russia’s Use of Force in Ukraine and Attempted Annexation of Crimea • In Wake of Espionage Revelations, United States Declines to Reach Comprehensive Intelligence Agreement with Germany • United States Defends United Nations’ Immunity in Haitian Cholera Case • French Bank Pleads Guilty to Criminal Violations of U.S. Sanctions Laws • D.C. Circuit Strikes down Administrative Order Requiring Divestment by Foreign-Owned Corporation • United States Adopts New Land Mine Policy • United States Claims That Russia Has Violated the INF Treaty

Asking The Right Questions In Copyright Cases: Lessons From Aereo And Its International Brethren, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of sense when viewed …

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Faculty Publications

Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

The Subversion Of State – To State Investment Treaty Arbitration, Jarrod Wong

McGeorge School of Law Scholarly Articles

State-to-state arbitration provisions in bilateral investment treaties and other international investment agreements (collectively called BITs here) have been little used—and rightly so—given the introduction of investor-state arbitration provisions in the same BITs. In a handful of cases, however, some states have sought to resurrect state-to-state arbitration, either to contest issues already decided in separate investorstate arbitral proceedings, or else to stave off such proceedings. Most recently and controversially, in Ecuador v. U.S., Ecuador initiated arbitration against the United States under the U.S.-Ecuador BIT to (re)arbitrate an issue that had arguably been determined against Ecuador in a separate prior arbitration between …

An Introduction To The Symposium And An Examination Of Morrison’S Impact On The Presumption Against Extraterritoriality, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

Introduction To Intervention Under International Law, Mortimer N.S. Sellers

All Faculty Scholarship

The lawfulness or legitimacy of "external" intervention in the "internal" affairs of sovereign states is one of the most basic controversies in modern international law. The question arises in three separate but related forms: When is intervention lawful? When is intervention legitimate? And when should intervention occur? Discussion here will focus on the legal question, but legitimacy, morality, and brutal reality all form and sometimes trump the law. They dictate the parameters within which all legal determinations take place, including the legality of cross-border interventions. By "intervention" I mean any activity by one state or its agents that influences the …

The Unidroit Principles As Global Background Law, Ralf Michaels

Faculty Scholarship

After twenty years of existence, it becomes apparent that the role actually played by the UNIDROIT Principles of International Commercial Contracts (PICC) is quite different from the one originally intended. This article first presents nine surprising findings concerning the actual use of the PICC, as it can be assessed on the basis of published opinions, legislation, and scholarship. It then uses these findings to suggest that the PICC should not be viewed as a code or even a non-state law. Instead, their nature is that of a Restatement of global general contract law, and their function is that of a …

The Arbitral Tribunal: Selection And Replacement Of Arbitrators, Chiara Giorgetti

Law Faculty Publications

The great majority of international investment arbitrations are decided by a three-member arbitral panel, where each party selects one arbitrator, and the presiding arbitrator is selected either by agreement of the parties, the party-appointed arbitrators, or, more often, by a neutral appointing authority. Their selection is not only a characteristic feature of international investment arbitration, but also one of the most important and delicate acts taken by the parties during the proceedings. Indeed, as frequent arbitrator Professor William W. Park noted, while “in real estate the three key elements are ‘location, location, location,’ . . . in arbitration the applicable …

The Darfur Name Game: Use Of Realpolitik By The United Nations In Decision-Making And Intervention, Angela Overton

Sociology & Criminal Justice Theses & Dissertations

Violence has plagued the westernmost region of Sudan, known as Darfur, since 2003. The conflict contains elements of political and ethnic divisiveness, desertification, and resource scarcity. The violence there continues to date. Many have declared genocide in Darfur while others maintain that the conflict is instead a crime against humanity. The labeling of the conflict is critical because this process determines the interventions available. This paper focuses on the decision-making process of the United Nations and its Security Council to determine if the labeling of the conflict impacted the discourse and intervention decisions by those bodies. Discourse analysis results indicate …

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part I (Making Available Right), Jane C. Ginsburg

Faculty Scholarship

This Letter from the U.S. addresses U.S. compliance with its international obligation to implement the “making available right” set out in art. 8 of the 1996 WIPO Copyright Treaty. The “umbrella solution” which enabled member states to protect the “making available to the public of [authors’] works in such a way that members of the public may access these works from a place and at a time individually chosen by them” through a combination of extant exclusive rights, notably the distribution right and the public performance right, has not in the U.S. afforded secure coverage of the full scope of …

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many …

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of …