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Adeen Postar and Khelani Clay
This chapter is intended to cover Maryland Law in its entire complexity and for the most part is intended for current use by practitioners. Whenever possible, it includes references to online sources of material, including LexisNexis, Westlaw, and authoritative sites available on the Internet. We have not included references to WestlawNext as many Maryland specific materials have not been included there as this project was concluding in November 2011.
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Susana SaCouto
The article analyzes certain aspects of the first judgment issued by the International Criminal Court, as well as the accompanying decisions relating to sentencing and the principles according to which reparations will be awarded to victims of the convicted individual, Thomas Lubanga Dyilo. Specifically, the article addresses: (i) the considerable amount of time that elapsed between the close of trial and the issuance of the judgment in the Lubanga Case; (ii) the Trial Chamber's failure to adequately clarify in its judgment certain aspects of the crimeswith which Mr. Lubanga was charged; (iii) the lack of claiification in the sentencing decision regarding the relationship among factors relevant to the sentence and the means by which the majority of the Chamber reached its conclusion that 14 years was the appropriate length of the sentence; and (iv) the purpose and timing of the Chamber's decision relating to reparations. In sum, the article finds that, while the overall approach of Trial Chamber I in presiding over the Court's first trial is to be commended, and the judgment is largely sound, the Court and its constituents - including the parties, affected communities and the broader public - may be better served if future Trial Chambers strive to deliver judgments within a shorter periodof time, while also ensuring that their reasoning on the crimes charged is fully explained. Furthermore, future decisions on sentencing will benefit from greater clarity. Finally, Trial Chambers in other cases should reconsider whether it is wise to issue any decisions on reparations prior to a final judgment on the guilt of theaccused.
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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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Kenneth Anderson and Benjamin Wittes
American University, WCL Research Paper No. 2014-3Abstract"The President's NDU Speech" is the third chapter of a book, "Speaking the Law," which analyzes the speeches of the Obama administration on national security law and policy. The book is being published online by the Hoover Institution, Stanford University on its website, chapter by chapter as they are completed. Once all chapters are done (end of 2013), the full book will be published by Hoover Institution Press in hard copy.Chapter 3 (the earlier chapters are available for open source download at the Hoover Institution website or through links at the Lawfare national security site) provides a close analysis of the speech delivered by President Obama on May 23, 2013 at the National Defense University, Washington DC - a speech at the beginning of President Obama's second term and billed as a comprehensive, forward-looking examination of US counterterrorism policy. The speech covered issues as diverse as conditions that would define "end of the conflict" under the 2001 AUMF; targeting, drone warfare, and what the authors call "counterterrorism-on-offense"; Guantanamo and detentions; secrecy and leaks of classified information; and the two documents provided along with the President's text - a White House release on drone targeting policies outside of conventional active zones of hostilities and a letter from the Attorney General addressing the targeting of a radical Yemeni-American cleric, Anwar Al-Awlaki, a senior operational commander of an Al-Qaeda associated force under the AUMF, with a drone strike.The authors integrate this speech with the earlier speeches delivered by top administration officials and lawyers, and evaluate it to identify the good and the bad, the unaddressed and the flat-out contradictory. The best parts address targeting and drone warfare, where the president offers a persuasive defense on moral and policy grounds, and a defense of the Awlaki killing - a drone strike against an American citizen, on grounds of his being a senior operational commander of an associated force under the AUMF, Al Qaeda in the Arabian Peninsula. Another bright feature addresses the administration's understanding that counterterrorism policy must deny "territory" to terrorist groups, and political or "governance" territory to Islamist insurgent groups allied with or hosts to terrorist groups and what this means as a matter of legal policy and strategy. The worst parts deal with Guantanamo and detention, and the gap between what the administration says and what it actually does.The overall premise of "Speaking the Law" is that the speeches of the Obama administration collectively are more than simply the public relations statements that many journalists, academics, and others reflexively assume them to be. They offer an evolving, but still relatively coherent and articulated, framework of legal policy for counterterrorism - one that is seeking to find institutional settlement, legitimate settlement, of basic terms of US counterterrorism policy on a stable, long-run basis. Whether that institutional settlement will, in fact, be achieved by the end of President Obama's second term, no one can say; whether it is, on balance, a reasonable or just or lawful settlement, and not merely a short term, politically expedient one depends on one's political and ideological priors. However one sees those issues, the authors' view is that the speeches analyzed in this book provide the skeleton of US national security law and policy; they are not merely a public relations add-on after the fact.
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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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William Snape
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Lindsay Wiley
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David Aaronson
Prepared in 2012 for members of the Maryland State General Assembly
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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
The following is a sample chapter from a book on US-UN relations, "Living with the UN." The book offers an analysis of policies available to the United States in its dealings with the United Nations, and offers "heuristics" of engagement to guide US dealings with different parts and functions of the UN. These policy rules of thumb are framed around a larger (mostly sharply critical, particularly in this chapter) analysis of "multilateral engagement" that is presented earlier in the book and which is a combination of analysis specific to US-UN relations and to US foreign policy generally. This book breaks US-UN relations down by function, and argues that whether to engage, and the form of engagement, depends upon particular UN functions. "Living with the UN" thus has chapters addressing the main UN activities - security, development, and values (particularly human rights).This sample chapter (chapter 7) addresses what the book calls the "UN-of-Values," with particular emphasis on human rights and the main body of UN activity around human rights, the Human Rights Council. As the chapter's subtitle says, the fundamental US attitude toward the HRC ought to be to disengage and, indeed, obstruct; it argues that the Obama administration's signature effort to engage with the HRC has been a profound mistake. This argument is set at a "strategic" level, however. Rather than framing this policy around particular incidents in which US engagement with the HRC has been a mistake, this chapter offers instead a strategic and long-run policy vision that emphasizes the larger evolution of human rights as the "apex" value of the United Nations since the 1990s and even earlier.The larger aim of the chapter, while critiquing the Obama administration's mistaken engagement with the HRC, is to show the general trajectory of UN "values" and the actors that "own" them, from organs of the UN to "global civil society." The UN and associated international community is headed, the chapter asserts, toward an ever-more-accommodating canon of human rights, on the one hand, rights to fit all "progressive" social agendas, while simultaneously ideologically underwriting the group identity agendas of "global religious communalism," at the expense of individual rights, on the other. Progressive liberal internationalism, at the UN's values forums, and quite apart from the well-understood, on-going phenomenon of the worst actors capturing the UN's values forums, is being gradually transformed into something like "multicultural internationalism." The Obama administration, through its desire to find compromises especially on issues of free expression in UN forums, abets that process. Meanwhile, the current weaknesses exhibited by the United States suggests that the universalism of the human rights movement shelters, ironically, under the loose hegemony of the United States as the leading democratic sovereign, and if that hegemony weakens in favor of a multipolar world, human rights universalism is the loser, not the winner.(This chapter is available as an open-source sample from the book. The book itself is a brief, high-altitude policy essay, deliberately lightly footnoted and using secondary sources generally available to general readers, rather than a dense academic monograph. The Hoover Institution Press has made the book available through Amazon and other online sellers at a reduced price - $10-13, to make it inexpensive for course adoptions in international law and organizations, international relations, and political science, possibly as a "contrarian" critique of the usual views of human rights, current US views of multilateral engagement, and the UN.)
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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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Susan Franck, Karl P. Sauvant, Jennifer Reimer, Todd Allee, Ilan Alon, Alice H. Amsden, Tadahiro Asami, Reuven S. Avi-Yonah, Paul Barbour, Christian Bellak, Axel Berger, Sjoerd Beugelsdijk, Subrata Bhattacharjee, Harry G. Broadman, Elizabeth Broomfield, Gert Bruche, Matthias Busse, John A. Cantwell, Aleh Cherp, Lorenzo Cotula, Nandita Dasgupta, Kenneth Davies, Alexandre de Gramont, Armand Claude de Mestral, Kabir Duggal, Persephone Economou, John Evans, David N. Fagan, Mark Feldman, Hermann Ferré, Daniel M. Firger, Veljko Fotak, Kevin P. Gallagher, Nilgun Gokgur, Kathryn Gordon, Jose Guimon, Thilo Hanemann, Torfinn Harding, Jean-François Hennart, Seev Hirsch, Wing (Xiaoying) Huo, Beata Smarzynska Javorcik, Nathan M. Jensen, Lise Johnson, Thomas Jost, George Kahale III, Kalman Kalotay, Laza Kekic, John M. Kline, Charles Kovacs, Jürgen Kurtz, Jo En Low, Miguel Pérez Ludeña, Edmund J. Malesky, Geraldine McAllister, William L. Megginson, Sophie Meunier, Michael Mortimore, Joel Moser, Michael D. Nolan, Peter Nunnenkamp, Terutomo Ozawa, Clint Peinhardt, Nicolás M. Perrone, Luke Eric Peterson, Mark Plotkin, Joachim Pohl, Lauge N. Skovgaard Poulsen, Carlos Razo, Daniel Rosen, Martin Roy, Giorgio Sacerdoti, Premila Nazareth Satyanand, Manfred Schekulin, Stephan W. Schill, Francisco Colman Sercovich, Arjen HL Slangen, Roger Smeets, Hans Smit, M. Sornarajah, Frederic G. Sourgens, Jonathan Strauss, Kenneth P. Thomas, Margo Thomas, Perrine Toledano, Julien Topal, Anne van Aaken, Gus Van Harten, Daniel Villar, Sandy Walker, Mira Wilkins, Jason W. Yackee, and Chen Zhao
This second edition of this publication provides an overview of important contemporary issues relating to foreign direct investment (FDI) and multinational enterprises for all those who are interested in this subject, but are not always in a position to follow diverse perspectives and what is being written in the various corners of this field. The contributions are grouped under the following headings: attracting FDI and its impact; the rise of emerging market investors; national policies; sustainable international investment; and international investment treaties and arbitration. The volume brings together all Perspectives published since the inception of this series until 2012.
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