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Robert Tsai
This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Comparative Law in Legislative Drafting: The Increasing Importance of Dialogue amongst Parliaments (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) are characterized by a receptivity to foreign and international law. A commitment to legal pluralism can be especially pronounced in countries seeking to escape a colonial past. While a newfound preference for increased formality in using foreign models can be detected, experts disagree whether the quality and frequency of actual usage has improved. Additionally, there may be certain undesirable consequences of heightened proceduralism and professionalism. Attention to the role of particular institutions, bureaucratic innovations, and lawmakers' motivations in borrowing (or not borrowing) from foreign law would be most fruitful for research going forward.
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Paul Williams and Anna Triponel
The case of Libya demonstrates the extent to which the law plays a role in enabling, shaping and constraining complex military and diplomatic operations. The law underpinned a number of decisions made at the policy level regarding military and diplomatic engagement. Although prior military operations can provide guidance for decision-making in future military operations, the application of the law to each case will be unique. The Libyan case study provides an example of how the law and politics intertwined to achieve the U.S. government’s objectives of protecting the Libyan people against violent attacks by their leader. This chapter examines the role law played in five key political-military decision points relating to the case of Libya. First, should the United States join France and Great Britain in using force to protect the people of Libya? Second, what is the extent of military force that could be used to accomplish this objective? Third, to what extent should Congress be involved in the decision to use force? Fourth, should the United States recognize the National Transitional Council as the legitimate government of Libya? Finally, should the United States and its allies seek a negotiated settlement if the military campaign failed to adequately protect civilians or to prompt a regime change?
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Padideh Ala'i
The book discusses some notable debates in the arena of international trade law and globalisation. It looks at the basic structure of the WTO, its function, and decision-making, and explores key economic and legal concepts underpinning the WTO, including Most-Favoured Nation Treatment and National Treatment.
The need of the hour is to discuss tariff barriers and non-tariff barriers, as they assist in promoting economic development. Besides these, the WTO attempts to control illegal trade practices, including dumping and subsidies, which are also pertinent topics in the current climate.
The book examines many of these issues through exploring the jurisprudence and regulatory framework of WTO. It examines the existing WTO jurisprudence to reconcile trade liberalisation with other societal values and interests. Furthermore, it highlights the regulation of international trade in agricultural products. Overall, this book shows that international trade law of the WTO is not a self-contained discipline, but has clear connections with other social, economic, and environmental subjects.
The WTO interacts with these issues, and thus the book discusses, clarifies and identifies its relationship with human rights, intellectual property rights and the environment. It discusses the following topics in single chapters; Trade, Globalisation and Economic Policy; WTO and Environment; WTO and Human Rights; WTO and Regulation of International Trade in Agricultural Products; WTO and Developing Countries. The book provides a unique, interdisciplinary, and refreshing approach to the study of international trade law and the WTO.
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Angela J. Davis
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Susan Franck
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Robert K. Goldman
Chapter 6 of Research Handbook on Human Rights and Humanitarian Law
In the wake of the September 11, 2001 attacks in the United States, the US, with the assistance of its coalition partners – all parties to various human rights instruments – initiated the so-called ‘war on terror’ by invading Afghanistan, where their armed forces killed or captured hundreds of ‘terrorist suspects’. Some of those detained were taken to the US military facility at Guantanamo Bay, Cuba, while others have languished in US custody in Afghanistan. These actions raise the question whether a State is bound by its human rights obligations when its agents operate outside of national territory. And, if so, how do those obligations interrelate with the State’s other obligations under international humanitarian law when its counter-terrorism operations coincide with situations of armed conflict.
This chapter addresses these questions. In particular, it examines the extraterritorial reach of two fundamental human rights during two situations recognized in international law. These rights are the right to life and the right to liberty and the related procedural safeguard of habeas corpus. The two situations examined are: (1) international armed conflicts, including occupation; and (2) non-international armed conflicts. The paper surveys the jurisprudence on the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (American Convention) and American Declaration of the Rights and Duties of Man (American Declaration), and the European Convention on Human Rights (European Convention), and the extent to which rights in these instruments can be derogated from. It also examines how the treaty bodies supervising these instruments view the relationship between international human rights law (HRL) and international humanitarian law (IHL) in situations of armed conflict. Relevant decisions of the International Court of Justice are also referenced in this connection. The chapter also identifies certain gaps in legal protection.
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William Snape
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Lindsay Wiley
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David Aaronson
In 2009, the Maryland General Assembly passed legislation that created new requirements for the evidence required to seek the death penalty. Specifically, the law restricts death penalty eligibility to those cases where there is: 1) biological evidence linking the defendant to the murder, 2) a voluntary videotaped interrogation and confession of the defendant to the murder, or 3) video that conclusively links the defendant to the murder. It was a well-intentioned effort to limit executions to those cases where the evidence was foolproof. Unfortunately, none of these evidentiary restrictions are, in fact, foolproof.
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Kenneth Anderson
This 3000 word essay is a chapter in a book on globalization aimed at undergraduates, answering certain globalization questions in short yes/no chapters. Under certain circumstances international NGOs, when they treat themselves as "global civil society," make claims about representativeness and intermediation with respect to the "peoples of the world" in relation to international organizations and the international community. This short, simplified account of global civil society expresses considerable skepticism about such claims.
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Kenneth Anderson
This article criticizes a widely asserted claim that drones make the resort to force and violence — war — “too easy.” Attractive on the surface to many, this article says that “too easy” is not a coherent notion as applied in war. The “too easy” argument comes in two forms, a moral argument and a maximization of social welfare argument. The maximization of social welfare version (on which the article focuses) frames “too easy” as a matter of creating an “inefficient” level of disincentive to use of force on account of insufficient risks to one’s own forces in so doing — appealing deliberately to the apparatus of welfare-maximization and cost-benefit analysis.
The general form of “too easy” argument is one that applies, however, with respect to any form of the reduction of risk on the battlefield — including in principle not just reduction of risk to one's own forces through remote weapon platforms such as drones, but also reduction of risk to civilians on the battlefield through precision technologies and the reduced risk to civilians arising from not having soldiers seeking to protect themselves in battle. Thus, the general form of the social welfare argument — rarely noted or understood by those making it — is that greater efficiency (i.e., reduction of battlefield harms, whether for your own forces or for civilians) in the conduct of hostilities, the “jus in bello,” might result in greater inefficiency in the disincentives to resort to force, the “jus ad bellum.” Efficiency jus in bello might imply less efficiency jus ad bellum.
That there is an “inefficient” level of incentive to resort to force presumes, however, that there is in principle an “efficient” one. The article argues that this is conceptually incoherent and (mis)applies the law and economics of social welfare maximization to a sphere of activity upon which it has little or no purchase. “Easier” resort to force is not the same as “too easy.”
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Jonathan Baker and David Reitman
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Daniel Bradlow
The thesis of this chapter is that, despite all the governance changes that the IFIs have undergone, they still do not have adequate governance arrangements and will need to undergo further reform if they are to perform their mandates effectively. In order to establish this thesis, this chapter is divided into four parts. First, it describes the reforms the IFIs have agreed to and have implemented. Second, it sets out some benchmarks against which these governance reforms can be measured. Third, it assesses the adequacy of the reforms undertaken based on the benchmarks identified in the second section. The final section is a conclusion.
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Janie Chuang and Anne T. Gallagher
This chapter explores the main efforts to produce compliance-focused indicators that can help improve international treaties against human trafficking. It shows that the power held by the US State Department (the organization that tried to pursue such indicators) is used unilaterally, and that this unilateralism can overcome a collective action problem. It then examines other functions of unilateralism, and shows that the indicators for human trafficking created by the US State Department are produced using criteria set by the US legislation.
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Susan D. Franck
In late 2008, as financial markets were crashing, the Vale Columbia Center on Sustainable International Investment launched the Columbia FDI Perspectives. The first Perspective, entitled “The FDI recession has begun,” correctly forecast an FDI recession in the following year. From that first Perspective in late 2008 to the end of 2010, the series published thirty-three concise notes on topical FDI-related issues by diverse experts in the field. The purpose of these Perspectives is to inform readers about some of the important issues and trends in the contemporary debate on FDI, and to promote a wide-ranging discussion about the policy implications of these trends and events. The topics of these Perspectives, while not an exhaustive list of the issues raised by the global investment regime, capture a dynamic period in the global debate on international investment and reflect many hot topics and issues of continuing relevance in 2009-2010. Topics ranged from the implications of the financial crisis and recession for major economies, to the changing geography of the international investment regime and policy questions faced by emerging markets; from the implications of sovereign investment for national security and measures taken to restrict such investment, to policy options for countries seeking to increase inward investment flows and trying to stay competitive in a downward market; from investment in land and agriculture, to investment in extractive industries – raising important questions both for national policy and for the international investment regime. The range of topics reflects the multifaceted, interdisciplinary and rapidly evolving nature of key issues in international investment. This compilation of the Perspectives offers snapshots of some of the most topical issues of 2009-2010 and an opportunity to connect the dots, drawing out the interconnections among the various themes addressed in the stand-alone Perspectives. It is the collection of these issues and policy considerations that, woven together, forms the changing fabric of the international investment regime. By putting these pieces together in one volume, this e-book allows a clearer picture to emerge.
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Fernanda Giorgia Nicola Dr.
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Jayesh Rathod
An overview of the contributions made by immigrant entrepreneurs in the United States, and the challenges they face.
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Jayesh Rathod
Community development law has assumed pre-eminence among strategies to alleviate entrenched poverty and create sustainable economic and social change within low income communities. Despite the growing prominence of community development within graduate schools and the helping professions, there is no comprehensive textbook to date. This text provides that resource.
Community Economic Development Law: A Text for Engaged Learning provides a flexible set of materials that faculty can customize to meet the goals of the stand-alone community development class, or the pedagogical needs of community development law clinics. The text enables students to approach the substantive material as would problem-solving, community-based practitioners. They do so by entering the community of Ourfuture City, whose Old World immigrants built a vanished industrial prosperity; and of its neighborhood, Milkweed Park, whose new immigrants and long-time residents confront the stresses of physical and financial isolation, racial segregation and economic disinvestment. Students assume the roles of advisors and advocates for the families, teachers, clergy, bankers, entrepreneurs, non-profits, public institutions, and activists of this prototypical struggling municipality.
The book intersperses overviews of substantive areas that are commonly encountered in community development advocacy with exercises and problems presented by the clients from Milkweed Park. Those areas include entity formation, economic development finance, housing, land use and the emerging field of community justice. The exercises use the substantive law to highlight skills that community development lawyers need to address their clients' problems and projects, as a basis for in-class discussion and/or preparation for client representation. -
Macarena Saez
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