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Volume 36:5
The History, Development, and Decline of Crimes Against Peace By Mathew Lippman This article traces the development, drafting, diminishment, and decline of crimes against peace in the twentieth century. It discusses how the “just war” tradition, which provides that war should be undertaken only for a “just cause,” has profoundly shaped the popular perception of the conditions justifying the resort to armed force by nation-states from the post-World War I period forward. It highlights how the difficulties of defining “aggression” in the United Nations (UN) Charter and diplomatic disagreement slowed the development of the concept of crimes against peace in the UN. The author argues that, as a result, we now risk a return to an age in which states viewed the resort to arms as their unbridled sovereign prerogative.
Transient Copying and Public Communications: The Creeping Evolution of Use and Access Rights in European Copyright Law By Guido Westkamp This article discusses the adaptation of economic rights to digital uses under the current intellectual property doctrine. It examines the European Union’s Copyright Harmonisation Directive, which seeks to harmonize the standards relating to economic rights and limitations. The author argues that the European Union’s solution leads to a barely separable fusion of exclusive rights because it lacks a sound dogmatic definition as to which acts the legislation should cover.
Legal Title to Land as an Intervention Against Urban Poverty in Developing Nations By Bernadette Atuahene This article studies the concept of “land titling,” the distribution of legal title to land to poor urban dwellers as a method of ameliorating poverty. The author develops a theory of how best to achieve “titling mobility,” a goal attained when the state allocates land title in a manner that eliminates the structural barriers that impair poor people’s social mobility and ability to accumulate wealth in the long-term. She argues that favorable location of titled land, and procedures that ensure equitable distribution of title among women and men, are essential. The author then tests her theory against the land titling programs implemented in Peru, the Philippines, and South Africa and makes recommendations for their improvement.
The Right to Water: The Road to Justiciability By Ramin Pejan This article evaluates the status of water as a human right under international human rights law, including the Committee on Economic, Social and Cultural Rights’ General Comment 15. It addresses some of the major critiques of economic and social rights by demonstrating that it is possible to implement and ultimately adjudicate the right to water within a domestic context. The author uses South Africa as a case study to illuminate how concrete steps might be taken at the domestic level to provide for the right to water.
Note: Sarbanes-Oxley: Ignoring the Presumption Against Extraterritoriality By Corinne A. Falencki
Note: Sinners in the Hands of an Angry God: Resurrecting the Odious Debt Doctrine in International Law By Emily F. Mancina
Book Review: Sleeping With the Enemy: Tales of Yankee Power, Globalization, and the Transformation of Economy by Cartel in the European Union, a review of Regulating Cartels in Europe: A Study of Legal Control of Corporate Delinquency by Christopher Harding and Julian Joshua Reviewed by Clifford A. Jones
Volume 38 Abstracts Volume 38:1
Transnational Guidance in Terrorism Cases By Laura E. Little This article addresses the importance of using transnational material in federal court adjudication to decide terrorism-related cases. It argues that federal courts need now, more than ever, to look for guidance in international and comparative law materials in order to confront the challenge of balancing civil liberties and effective law enforcement. The article proposes four arguments why federal courts should use transnational materials: 1) the practice follows common sense; 2) the practice reflects methodologically good judging; 3) the practice serves our constitutional structure; and 4) the practice promotes the rule of law and world governance.
Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law By Emeka Duruigbo This article addresses the inability of many countries to convert valuable natural resources into an enhanced standard of living for their citizens. It examines the origins of the principle of permanent sovereignty over natural resources (PSNR) in international law with the goal of using PSNR as a tool to empower and benefit people, rather than a vehicle for their immiseration or the glorification of a handful of rulers. The predicament traces to the fact that rulers of developing countries have apparently interpreted PSNR as conferring ownership of their nations’ resources on themselves, thereby perceiving a license to corner the countries’ wealth where none exists. Early discussions of this subject have focused on the international position of the resource-endowed state. By contrast, this article adopts a people-centered focus and makes two contentions: first, the right to permanent sovereignty over natural resources is vested in peoples, not the states; and second, the term “peoples” should be used to denote the ownership of natural resources rather than faceless populations. It concludes that there is a possible role for international law in concentrating ownership of natural resources in the people through a tiered process that begins with a declaration clarifying the rights of peoples and responsibilities of governments.
Note: The Rise of the NGO in Bangladesh: Lessons on Improving Access to Justice for Women and Religious Minorities By Janice H. Lan
Note: Determining the Remedy for Violations of Article 36 of the VCCR: Review and Reconsideration and the Clemency Process after Avena By Harry S. Clarke, III
Book Review: Do International Norms Influence State Behavior?, a review of The Limits of International Law by Jack L. Goldsmith & Eric A. Posner Reviewed by David Sloss
Volume 38:2
The Constitutionality of the Death Penalty: South Africa as a Model for the United States By Mark S. Kende Despite evidence that many South Africans favored the death penalty, the new South African Constitutional Court in 1995 ruled the death penalty unconstitutional in State v. Makwanyane & Another (Makwanyane). The decision contrasts sharply with the U.S. Supreme Court’s 1976 landmark ruling in Gregg v. Georgia upholding the death penalty’s constitutionality. This article examines Makwanyane and compares its reasoning with certain aspects of U.S. Supreme Court death penalty cases. It then explores how recent U.S. Supreme Court decisions have moved in the South African Court’s direction in light of growing public skepticism about the death penalty.
The Sanctity of Sovereign Loan Contracts and its Origins in Enforcement Litigation By James Thuo Gathii This article examines sovereign debt enforcement litigation and the underlying contracts doctrine. Under the contracts doctrine, courts refrain from intervening on behalf of sovereign borrowers to maintain judicial neutrality in the face of a freely negotiated contract. It contrasts with the prior rule, which provided that renunciation or repudiation of a debt by a sovereign borrower was a precondition for accelerating payment. The article explores the origins of the current developing world debt crises emphasizing the role of indebted sovereigns, the external shocks arising from the oil crises, as well as over-lending by commercial banks. It then traces the effect of enforcement litigation of sovereign debt to the emergent principle of cooperative debt adjustment. Finally, it presents shortcomings of the sanctity of contracts doctrine and presents proposals for overcoming the strong rule of enforcement.
The UN Security Council and the Law of Armed Conflict: Amity or Enmity? James D. Fry This article lays out the theoretical relationship between the UN Security Council (Security Council) and international humanitarian law through the framework of constructivism. It argues that the Security Council and international humanitarian law have had a shaky relationship since the adoption of the UN Charter, a conflict that centers on the differences between jus ad bellum and jus in bello. The article concludes that, at a minimum, the Security Council must consider the international humanitarian law principles of proportionality, discrimination, humanity, and chivalry when authorizing UN forces under Article VII of the UN Charter. Short of this, it hardly can be said that the Security Council has overcome its aversion to international humanitarian law.
Essay: Boyakasha, Fist to Fist: Respect and the Philosophical Link with Reciprocity in International Law and Human Rights By Donald J. Kochan From Grotius to Hobbes to Locke to an unconventional modern pop-culture manifestation in Ali G, the concept of “respect” has always been understood as important in human interaction and human agreements. This essay examines who should have the opportunity to redress potentially disrespectful actions related to international law and human rights. It concludes that, at least in the realm of human rights and international law, the identification of respect or disrespect should be held almost exclusively in the hands of governmental bodies rather than in unaccountable private litigants.
Note: Participation of Developing Countries in the International Climate Change Regime: Lessons for the Future By Kevin A. Baumert
Note: Conflicting Obligations for Oil Exporting Nations?: Satisfying Membership Requirements of Both OPEC and the WTO By Stephen A. Broome
Note: Latin American State Secrecy and Mexico’s Transparency Law By Eric Heyer
Book Review: Marching to Zion: Can (and Should) We Transform International Law with Moral Theory?, a review of Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law by Allen Buchanan Reviewed by Jason C. Glahn
Volume 38:3- Symposium Honoring the Late Edward R. Cummings On September 30, 2005, The George Washington University Law School held a symposium to honor Edward R. Cummings, a graduate of the law school who served as an attorney with the Office of the Judge Advocate General and then the Department of State for more than thirty years. During his tenure at the Department of State, Mr.Cummings held positions as Assistant Legal Advisor for Politico-Military Affairs, Assistant Legal Advisor for Arms Control and Verification and Counselor for Legal Affairs at the U.S. Mission in Geneva, among others. Friends and colleagues gathered in part to celebrate his accomplishments and also to discuss the central conundrum Mr. Cummings faced in his career: Can law really play a role in time of war? The series of essays that follows reflects the presentations given at the symposium. Mr. Cummings passed away from pancreatic cancer in February of 2006. Forward—Lawyers and Wars: Symposium Issue in Honor of Edward R. Cummings By Sean D. Murphy
Introductory Remarks By John B. Bellinger III
Means and Methods of Warfare By W. Hays Parks
Continuity and Change in the Law of War: 1975 to 2005: Detainees and POWs By Michael J. Matheson
The “New” Non-State Actors in International Humanitarian Law By Dinah PoKempner
New Paradigms for the Jus ad Bellum? By Jane E. Stromseth
Internal Conflicts: Dilemmas and Developments By Steven Solomon
The Legal Bureaucracy and the Law of War By David Kaye Taking the Bull By the Horns: Congress and International Humanitarian Law By David Abramowitz
What do We Expect of Lawyers in Armed Conflict? By Sir Franklin Berman QC
House of Representatives: In Memory of Edward R. Cummings By the Honorable Tom Lantos
Expressions of Condolences and Tribute to Mr. Edward Cummings By the United Nations Department for Disarmament Affairs
Volume 38:4
Taking War Seriously: Applying the Law of War to Hostilities within an Occupied Territories By Ariel Zemach This article addresses the application of the law of war to large-scale hostilities between an occupant and guerilla forces. It demonstrates that the rationale most often invoked as bases for applying the law of war are unavailable in the context of large-scale hostilities between an occupant and guerrilla forces. It then develops an alternative ationale for applying the law of war to such hostilities concerning the interest of individual soldiers in ensuring that the scope of application of the law of war fully coincides with the moral reality of war. Furthermore, the article argues that the law of war governs within its field of application in an unqualified manner. It thus takes issue with an approach advocating the adoption of a normative middle ground between the law of war and international human rights law.
Change or the Illusion of Change: The War Against Official Corruption in Africa By Ndiva Kofele-Kale This article explores the historical context of the fight against corruption in post-colonial Africa. The article discusses and evaluates the various initiatives taken at the regional, continental, and global levels by African governments to combat corruption. It concludes by making recommendations for improving the African response to its corruption problem.
Note: Incitement to Terrorism in Media Coverage: Solutions to Al-Jazeera after the Rwandan Media Trial By Spencer W. Davis
Note: Drug Trafficking in the Americas: Reforming United States Trade Policy By Joe Swanson Note: Peace Treaty Claim Waivers: The Case of Prince Hans-Adam II of Liechtenstein and the “Scene at a Roman Well” By Michael Winn
Book Review: Contesting the “Sovereignists”: How to Learn to Stop Worrying and Love International Institutions, a review of International Organizations and their Exercise of Sovereign Powers by Dan Sarooshi Reviewed by Margaret E. McGuinness
Volume 39 Abstracts Volume 39:1
The Myopia of U.S. v. Martinelli: Extraterritorial Jurisdiction in the 21 st Century By Christopher L. Blakesley & Dan E. Stigall This article explores the concept of extraterritoriality with respect to laws criminalizing the sexual exploitation of children via the internet through the lens of a recent court decision: U.S. v. Martinelli. In this decision, the Court of Appeals for the Armed Forces (CAAF) held that the defendant could not be prosecuted under a child pornography statute because the statute did not apply extraterritorially. The author argues that the CAAF erred in adopting a myopic view of implied extraterritoriality, ignored the weight of federal precedent on the issue, ignored the multiple grants of extraterritorial jurisdiction allowed by international law, and misread the legislative history of the statute in question. The article illuminates the reasons why laws criminalizing the sexual exploitation of children via the internet must apply extraterritorially.
Parallel Proceedings at the WTO and Under NAFTA Chapter 19: Whither the Doctrine of Exhaustion of Local Remedies in DSU Reform? By Kevin C. Kennedy This article addresses the need to reform the World Trade Organization’s (WTO) Dispute Settlement Understanding (DSU) to provide for rules on judicial restraint. It begins with an analysis of the doctrine of exhaustion of local remedies under customary international law and then examines the status of the doctrine at the WTO and under the North Atlantic Fair Trade Agreement (NAFTA). It concludes by recommending amending the DSU to mandate exhaustion of local remedies and amending NAFTA Chapter 19 to provide for the automatic selection of panelists in the event that a disputing country fails to appoint its panelists.
Pinochet and the Uncertain Globalization of Criminal Law By Robert C. Power This article examines how the efforts to bring former Chilean dictator Augusto Pinochet Ugarte to justice have affected international criminal law. It argues that traditional international law seems largely irrelevant today because the paradigmatic crime of the Pinochet era was torture, which is now addressed primarily through the Torture Convention, and the most appropriate forum is the International Criminal Court (ICC) rather than national courts. The article emphasizes the need to use international tribunals such as the ICC to help protect international criminal prosecutions from the kind of political erosion that left a very mixed record concerning Augusto Pinochet.
Essay: Justiciability of the Israeli Fight Against Terrorism By Ariel L. Bendor This essay addresses the degree to which law and courts of law are capable of regulating the fight against terrorism and the degree to which this is actually being done in Israel.
Note: The Fight Against Corruption by International Organizations By David Morrissey
Note: The Price of Fame: CITES Regulation and Efforts Towards International Protection of the Great White Shark By Julie B. Martin
Babes With Arms: International Law and Child Soldiers By Timothy Webster This article examines the advances in preventing children from participating in armed conflict. Current estimates suggest that more than 300,000 children are involved in armed conflict throughout the world. This article discusses the international legal framework recently drawn up to ban child soldiery and investigates the contributions made by recent international criminal courts in the proscription process. It also surveys the United Nations’ various attempts to solve the problem of child soldiers and concludes with observations about the gestation of international law and its ability to grapple with this transcontinental problem.
Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom Act? By Surya Deva This article addresses the alleged involvement of several leading U.S. corporations—Yahoo!, Microsoft, Google, and Cisco—in Internet censorship in China. Accordingly, it evaluates the efficacy of two regulatory initiatives—the United Nation’s Global Compact (Global Compact) and the Freedom Act—in dealing with the specific challenges posed by doing business with or within China. It argues that the Global Compact has failed not only in convincing U.S. corporations to embrace its principles, but also in ensuring that participant corporations seriously fulfill their undertaken commitments. Furthermore, the author claims that it is unlikely that the Freedom Act will promote Internet freedom globally by combating censorship by authoritarian foreign governments.
Exporting Western Law to the Developing World: The Troubling Case of Niger By Thomas A. Kelley This article examines the Washington Legal Consensus (Consensus), a package of policy reforms imposed by the West on the Developing World to propel poor countries toward First World Propensity. It attempts to fill a gap in scholarly analysis that has overlooked how the Consensus actually affects the lives of ordinary people by addressing the case of Niger, an especially poor and isolated country in the midst of Consensus-inspired law reform. The article concludes that Consensus-mandated legal reforms grounded in liberal Western conceptions of law and justice are so fundamentally different from the law and justice that Nigerien people live by day-to-day that the attempt at abrupt reform will cause significant social dislocation.
Note: Just Say Yes: Drug Trafficking Treaties as a Model for an Anti-Spam Convention By Samuel Boone-Lutz
Why Europe is Safe From ChoicePoint: Preventing Commercialization Identity Theft Through Strong Data Protection and Privacy Laws By Maeve Z. Miller
Here Comes the Mail-Order Bride: Three Methods of Regulation in the United States, the Philippines, and Russia By Karen M. Morgan
Book Review: The Role of Courts in Enforcing Economic and Social Rights, a review of Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? by Roberto Gargarella Reviewed by Kristen Boon
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