International Law Commons^™

The Duty To Capture, Jens David Ohlin

Cornell Law Faculty Publications

The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and …

Ecuador’S Decision To Grant Asylum To Julian Assange : The Manifestation Of Human Security?, Atik Kusriyati

Indonesian Journal of International Law

Ecuador’s decision to grant asylum to Julian Assange (Australian citizen) on August 16, 2012 has caused several impacts. Julian Assange, the founder of WikiLeaks, was arrested in Britain in connection with a Swedish investigation into accusations of sexual offenses. But United States Law enforcement official said that the fact that he was in custody did not affect their deliberations about whether he might be charged in this country in connection with publication of leaked government documents. Being disappointed with the decission, the British authorities sent a written notice to the Ecuador’s Embassy in London that they would assault the Embassy …

Piracy, Slavery, And The Limits Of International Law: The Gap Between The Rhetoric And Reality Of Jus Cogens, Stephanie Elizabeth Smith

Graduate Program in International Studies Theses & Dissertations

A gap currently exists between the sources of international law in the canon of jus cogens or peremptory norms. This gap is observed in the comparison of the rhetoric perpetuated by the community of international lawyers and the actions of states. It is especially apparent in the two oldest tenets of jus cogens, the prohibitions against piracy and slavery. The disconnect between rhetoric and reality exposes the limitations and the political nature of international law.

The gap is demonstrated by using peremptory norms as a crucial case in the international legal system because of its perceived status as the …

Rethinking Legal Globalization: The Case Of Transnational Personal Jurisdiction, Donald Earl Childress Iii

William & Mary Law Review

Under what circumstances may a United States court exercise personal jurisdiction over alien defendants? Courts and commentators have yet to offer a coherent response to this question. That is surprising given that scholars have been calling for the globalization of U.S. law since the late 1980s as part of a transnational litigation narrative.

Through doctrinal and empirical analysis, this Article argues that a U.S. court should have power to exercise personal jurisdiction over an alien defendant not served with process within a state’s borders when (1) the defendant has received constitutionally adequate notice, (2) the state has a constitutionally sufficient …

Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh

Articles

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence "to prosecute those who bear the greatest responsibility" for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

International Decisions: Territorial And Maritime Dispute (Nicaragua V. Colombia), Nienke Grossman

All Faculty Scholarship

No abstract provided.

Challenges To Compliance With International Humanitarian Law In The Context Of Contemporary Warfare, Morgan Kelley

Independent Study Project (ISP) Collection

The changing nature of warfare in the 21^st century poses a multitude of challenges to the perceived applicability of International Humanitarian Law for both State and non-State actors in contemporary conflicts. These issues, including but not limited to: ambiguity in the distinction of violent conflict, the changing type of actors involved, issues of asymmetric warfare, challenges of negative reciprocity, and an inhibited ability to engage with all parties to conflict, are detrimental to the overriding purpose of IHL. Still, the oftentimes inefficient nature of the international system, as well as lack of consensus regarding new legislation means that formal …

The Ethics Of ‘Responsibility While Protecting’: Brazil, The Responsibility To Protect, And Guidelines For Humanitarian Intervention, James Pattison

Human Rights & Human Welfare

In the aftermath of the NATO intervention in Libya, the responsibility to protect (RtoP) doctrine has received considerable blowback. Various states, most notably some of the ‘BRICS’ states (Brazil, Russia, India, China, and South Africa), claimed that NATO exceeded its mandate given to it by United Nations Security Council (UNSC) Resolution 1973 (by allegedly focusing on regime change rather than on the protection of civilians), was inappropriate in its target selection, violated the arms embargo by transferring arms to rebels, and generally caused too much harm to civilians and civilian infrastructure.1 It was also suggested that the UK, US, and …

International Law’S Erie Moment, Harlan G. Cohen

Scholarly Works

Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.

Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the …

The Spirit And Task Of Democratic Cosmopolitanism: European Political Identity At The Limits Of Transnational Law, Paul Linden-Retek

Journal Articles

The problem motivating this essay is the continuing, yet difficult hope for a Europe of democratic cosmopolitanism, for a Europe in which cosmopolitics works to continually question the terms of lingering exclusion while preserving our ideals of self-legislation and democratic authorship. In what follows, I expand the familiar criticism of Europe’s democratic legitimacy gap, its democratic deficit, as a lens through which to analyse the possibility of a supranational participatory identity within the European political space. First, I describe the contemporary juridification of European politics, specifically concerning the legal formalism of the European Court of Justice, and the dangers such …

Mexico And The Law Of The Sea: Contributions And Compromises. Book Review, Michael Reed

San Diego International Law Journal

Much valuable scholarly material has been published on the United Nations Convention on the Law of the Sea, often referred to simply as “UNCLOS” or “The Constitution for the Oceans.” The focus of that scholarship has usually been on interpreting the Convention’s 320 separate Articles and substantive Annexes. Such sources are, of course, critical to individuals seeking to comply with the law of the sea or sovereigns charged with enforcing it.

Inequities In Corporate And Securities Law: Disabling The Exploitative Chinese Corporation And Charting A Path To International Commercial Accountability, Jonathan P. Schmidt

San Diego International Law Journal

This article seeks to illuminate these issues and provide a roadmap for the U.S. federal and state legislatures to come together to protect the U.S. investor from the type of accounting fraud and stock misinformation that was the impetus behind enacting the Sarbanes-Oxley Act of 2002. First, this article will discuss the legal backdrop and legislative policy behind U.S. laws such as SOX and its enforcement mechanisms, and the ability for shareholders to bring securities class action derivative actions for financial fraud. This article will also discuss trade secrets laws, criminal extradition treaties, international enforcement of judgments, and elucidate the …

Explaining The Progression Of The Rights Of Same-Sex Couples In South America, Daniel De La Cruz

San Diego International Law Journal

A trend of rights advocacy has recently developed in the international community. Organizations dedicated to the principle of advancing the rights of historically under-represented and oppressed social groups have proliferated around the globe. The growth of the gay rights movement in recent years has resulted in the expansion of civil liberties afforded to same-sex couples. The movement has gained significant success in symbolic expression. Even without much knowledge of the movement, one typically associates a rainbow flag, the Greek letter lambda, and the word “pride” with the effort. Unfortunately, the movement has not achieved comparable substantive success. Same-sex couples continue …

Drawing The Line Between Competing Interests: Strengthening Online Data Privacy Protection In An Increasingly Networked World, Lori Chiu

San Diego International Law Journal

This article seeks to elucidate these issues and provide a roadmap for the U.S. government to create unified federal laws to provide the private sector with specific protocols regarding use and dissemination of consumer personal information. First, this article will provide an explanation of the U.S.’s current sector-by-sector approach to regulating personally identifying information and will provide a case study of the Federal Trade Commission’s (“FTC”) enforcement action against a social networking site in 2011 as one example of the FTC’s recent efforts at regulating online privacy. Next, this article will analyze the U.S.’s current challenge of judicial enforcement of …

Corresponding Evolution: International Law And The Emergence Of Cyber Warfare, Bradley Raboin

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Last Page: Debating Preventive War: An Arena Of Law Of Power?, Kenneth Rodman

Colby Magazine

By the time you read this essay, we will almost certainly be at war, probably without the authorization of the United Nations. A group of students asked me whether such a war would be legal under international law. A second question is, “Do such considerations matter?”

Is Jus In Bello In Crisis?, Jens David Ohlin

Cornell Law Faculty Publications

It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following essay, an introduction to the Drone Wars symposium of the Journal, catalogues today’s most pressing disputes regarding international humanitarian law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law in asymmetrical conflicts; (iii) the targeting of suspected terrorists under concept- or status-based classifications …

Foreword, Kyle M. Bird

San Diego International Law Journal

The topics of the articles range from marriage equality in South America, how China-based corporations exploit U.S. investors, and how the U.S. can strengthen data privacy protection. The rise of marriage equality for same-sex couples continues to march forward in the twenty-first century. In our global economy, policing foreign corporations operating on domestic soil involves multiples hurdles that require proper navigation. In addition, with the rise of the Information Age, an increasingly cyber-connected world requires protection through vigilant legal oversight.

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

"At The Hospital There Are No Human Rights": Reproductive And Sexual Rights Violations Of Women Living With Hiv In Namibia, Aziza Ahmed

Faculty Scholarship

This report documents the ongoing stigma and discrimination of women living with HIV in Namibia, building on prior findings and investigations on the subject, such as the 2008 research conducted by the International Community of Women Living with HIV/AIDS (ICW) and the Namibian Women’s Health Network (NWHN). The report, based upon both desk research and a field mission, examines the human rights situation related to sexual and reproductive health of women living with HIV, including the gravity and ongoing nature of forced and coerced sterilizations in Namibia. The report also provides evidence of violations of informed consent in the context …