Volume 64 ♦ Issue 1 ♦ September 2023
Technology and Cyber ♦ Article
Europe’s Digital Constitution
This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving…
ANU BRADFORD
International Tax ♦ Article
Closing the “Shell Bank” Loophole
The U.S. Senate Committee on Finance has recently published a report on its investigation into the “shell bank” loophole. The report reveals that this loophole was used in the largest individual tax evasion case in U.S. history. This loophole undermines tax…
NOAM NOKED & ZACHARY MARCONE
International Conflict and War ♦ Article
Regulating the Foreign-Fighter Phenomenon
The transnational mobilization of foreign fighters is a centuries-old phenomenon that threatens international security. The phenomenon challenges States’ sovereign monopoly on the use of force under international law. It augments the capabilities of parties…
BENJAMIN R. FARLEY
International Conflict and War ♦ Essay
Taiwan, War Powers, and Constitutional Crisis
Many policy assessments assume that the president would have the domestic legal authority necessary to respond with immediate military force in the event that China were to pursue an unexpected attack on Taiwan. But this view is in some tension with history…
SCOTT R. ANDERSON
Volume 63 ♦ Issue 3 ♦ April 2023
International Conflict and War ♦ Article
Implementing War Torts
Under international law, no entity is accountable for lawful acts in war that cause harm, and accountability mechanisms for unlawful acts (like war crimes) rarely create a right to compensation for individual victims. Accordingly, states now regularly…
REBECCA CROOTOF
International Investment Law ♦ Article
Rethinking International Investment Law: Form, Function & Reform
Under International investment law (IIL) is at an “inflection point.” Several States are abandoning it, while others are meeting to debate and reform it. This Article reconsiders the conventional debates and reforms by asking a simple question: What is the function…
STRATOS PAHIS
Domestic Application of International Law ♦ Book Review
Marry the Domestic and the International: Review of Yuji Iwasawa, Domestic Application Of International Law Focusing On Direct Applicability
Under The roots of this book run through an article in this Journal almost forty years ago. Professor Iwasawa, as he was then, came to the University of Virginia School of Law as a Fulbright Scholar in pursuit of an S.J.D. One of the fruits of his stay was an article…
PAUL B. STEPHAN
International Banking ♦ Article
Sustainable Central Banking
In the past several years, central banks globally have begun to consider whether, and to what extent, questions of climate change and sustainability intersect with their statutory mandates. The issues are not straightforward nor is there a one-size-fits-all approach. A range of…
ROSA MARÍA LASTRA & CHRISTINA PARAJON SKINNER
Immigration and Refugee Law ♦ Note
Disparities in Queer Asylum Recognition Rates on the Basis of Gender: A Case Study of Australia and New Zealand
Using an approach based on intersectionality theory, this Note tests whether a difference in asylum recognition rates exists in Australia and New Zealand at the first appeals level. Through compiling an original dataset of judicial decisions and performing logistic…
JAKE MARKS MILLMAN
Volume 63 ♦ Issue 2 ♦ January 2023
Genocide ♦ Article
#Genocide: Atrocity as Pretext and Disinformation
This Article addresses the problem of false accusations of genocide. In the past, scholars and lawyers have fretted about the pernicious impact of genocide denial, but false accusations represent the opposite side of the disinformation coin…
JENS DAVID OHLIN
Technology and Cyber ♦ Article
Mind the Gap(s) – The Need to Resolve Uncertainties in the International Law of Cyber Warfare
Emerging evidence demonstrates the growing significance of cyber operations in the context of armed conflicts and aggression. Despite increasing concerns of the international community, no specialised international legal regime has been developed to govern…
SHIRAN SHAHAF
International Arbitration ♦ Note
A New Approach to Status Determination in International Arbitration? A Comparison of Larsen v. Hawaiian Kingdom and the Disputes Concerning Venezuela’s Representation before ICSID Tribunals
Before deciding cases submitted to them, international tribunals first need to determine the identity of the parties and their representatives. In international arbitration, this kind of status determination not only implicates core concepts of statehood and governance…
FRITZ KAINZ
International Trade ♦ Article
When Decarbonization Meets Industrialization: The First WTO Dispute Between the EU and U.K.
In March 2022, the European Union challenged the United Kingdom’s Contracts for Difference (CfD) scheme at the World Trade Organization (WTO). This case— United Kingdom – Measures Relating to the Allocation of Contracts for Difference in Low Carbon…
MANDY MENG FANG
International Conflict and War ♦ Note
The Case for Reforming JASTA
As the Supreme Court all but closed the door on Alien Tort Statute litigants alleging injuries from terror attacks, Congress opened a window by passing the Justice Against Sponsors of Terrorism Act (JASTA) in 2016. A review of 300 complaints reveals that…
JACK V. HOOVER
Volume 63 ♦ Issue 1 ♦ September 2022
International Relations ♦ Article
The Harmon Doctrine is Dead, Long Live the Harmon Doctrine!
How states ought to share water crossing their boundaries has long been disputed in both American and international water law. Legal principles governing the shared use of interstate watercourses in the United States and internationally were once rooted in…
TAMAR MESHEL
International Human Rights Law ♦ Article
Prohibiting Slavery & The Slave Trade
Three lines Slavery and the slave trade stubbornly persist in our time, but they receive insufficient attention in international human rights law. Even when courts adjudicate slavery violations, they often fail to characterize slave trade conduct that nearly always…
JOCELYN GETGEN KESTENBAUM
Volume 62 ♦ Issue 3 ♦ April 2022
Immigration and Refugee Law ♦ Article
Advancing Disability Rights-Based Refugee and Asylum Claim
Persons with disabilities are among the most marginalized groups in the world and they experience heightened rates of human rights abuses. Languishing at the “vanishing point” of international law, this population has long struggled to access international…
JANET E. LORD, ELIZABETH HEIDEMAN, & MICHAEL ASHLEY STEIN
Constitutions ♦ Note
Assessing Aspirations: Factors Influencing Modern Effects of State Aspirational Clauses in the German and Japanese Constitutions
Constitutions sometimes feature clauses listing abstract national goals with little or vague direction on how the nation should achieve these aims. These so-called “aspirational clauses” present an interesting situation where a text is adopted by drafters, but the…
J. BOLTON SMITH
Courts ♦ Article
Special Courts, Global China
This Article analyzes China’s turn to specialized courts as a case study on how China’s global ambitions are shaping its domestic law reforms. It argues that the country’s rapid construction of more technocratic special courts in areas such as cyberspace…
MARK JIA
Volume 62 ♦ Issue 2 ♦ January 2022
Enforcement and Accountability in International Law ♦ Article
Outsourcing Enforcement
International organizations often outsource the enforcement of international law to their member states. The International Labor Organization (ILO), for instance, has neither its own adjudicative body nor an internal system of sanctions…
DESIRÉE LECLERCQ
International Investment Law ♦ Article
The Elastic Corporate Form in International Law
International law is distorting basic features of the corporate form, like separate legal personality and limited liability, sometimes beyond recognition. Surprisingly, this is occurring in the law and institutions governing foreign investment—a field…
JULIAN ARATO
International Trade ♦ Note
U.S. Sanctions Policy on Trial: The Alleged Violations Litigation and Opportunities for Other States to Follow This Strategy
The Alleged Violations litigation has haled an unwilling United States before the ICJ and has forced it to defend its economic sanctions policies before the international court. The stakes of this case are extremely high, as the United States could face an adverse judgment…
JAMES R. HARPER
International Trade ♦ Article
Trade’s Mini-Deals
The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress’ constitutional primacy over the regulation of foreign commerce. Contrary to this understanding…
KATHLEEN CLAUSSEN
International Tax ♦ Note
Evaluating the Tax Veto in a Digital Age: Legislative Efficiency and National Sovereignty in the European Union
The total market capitalization of the six largest U.S.-headquartered tech companies now tops $4.5 trillion; yet much of their revenues legally escape taxation every year. Recognizing the challenges of taxing the digital economy, the international community joined…
CHARLOTTE A. MCFADDIN
Volume 62 ♦ Issue 1 ♦ September 2021
International Criminal Law ♦ Article
The Impact of Separate Opinions on International Criminal Law
Dissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same…
NANCY AMOURY COMBS
International Human Rights Law ♦ Article
“A New Law on Earth” Hannah Arendt and the Vision for a Positive Legal Framework to Guarantee the Right to Have Right
In the summer of 1950, Hannah Arendt issued a challenge. Writing from a place “still in grief and sorrow,”1 she argued that the horrors of the First and Second World Wars revealed “that human dignity needs a new guarantee which can be found only in a new political…
MELISSA STEWART
International Conflict and War ♦ Note
Disentangling Conflict and Minerals: How NGOs and Lawmakers Ought to Rebrand Their Flawed Narrative of Eastern Congo
The “conflict minerals” provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 requires publicly traded companies in the United States to disclose whether certain minerals used in their products have been sourced from mines…
MAX CHAFFETZ
International Conflict and War ♦ Article
Wars of Conquest in the Twenty-First Century and the Lessons of History ‒ Crimea, Panama, and John Bassett Moore
This Article uses history to explore how prominent international lawyers explain seemingly transgressive state behavior. It begins with the Russian annexation of Crimea in 2014. This seizure of another state’s territory by force of arms seems to violate everything that…
PAUL B. STEPHAN
International Human Rights Law ♦ Essay
Admiralty, Human Rights, and International Law
Admiralty offers a promising analogue to modern human rights law. Rooted in longstanding traditions of judge-made law and reference to customary international law, admiralty furnishes a template for recognizing and protecting human rights. Admiralty has…
GEORGE RUTHERGLEN
Enforcement and Accountability in International Law ♦ Note
Holding Peacekeepers Accountable: Haiti and Cholera
Accountability for humanitarian actors is a challenging space in international law. Although the different bodies of law states have developed address various actors in various settings, gaps persist. A particularly challenging group to regulate, humanitarian actors often…
ABBY OAKLAND
Volume 61 ♦ Issue 3 ♦ April 2021
International Relations ♦ Keynote
Seventy-Six Going on a Hundred: International Cooperation and International Law at the United Nations
Although cycles of trust and mistrust have often characterized the relationship between international law and international cooperation, the practice of the United Nations is testament to the rich interplay between the two. This short Note, which was given…
STEPHEN MATHIAS
International Governance ♦ Article
The Security Council and Non-State Domestic Actors: Changes in Non-Forcible Measures between International Lawmaking and Peacebuilding
Elaborating on a newly compiled dataset of all Security Council resolutions passed under Chapter VII in the thirty years from 1990 to 2019, this Article is the first attempt to survey aggregated Council practice to analyze the ways in which the Council’s non-forcible…
LEONARDO BORLINI
International Human Rights ♦ Note
Confronting the Sacred: Eradicating the Whipping of Women in Southwest Ethiopia
The quest for gender equality and women’s empowerment has brought a new era of equality and freedom for all women around the globe. Today, most African countries have ratified at least one human rights instrument, or at least incorporated gender equality under…
HALETA GIDAY FISEHA
International Governance ♦ Essay
Expanding the U.N. Security Council: A Potential Bulwark against the U.N.’s Legitimacy Crisis
The United Nations has long served as the primary vehicle for the administration and enforcement of the international legal and political order, and situated at its very core is its underlying security apparatus: The United Nations Security Council (UNSC)…
BILAL ASKARI
International Arbitration ♦ Article
The Substantive Value of Diversity in Investment Treaty Arbitration
Diversity in investment treaty arbitration (ITA), as in many other areas of law and beyond, presents an ongoing struggle. Commentators generally agree that a lack of diversity in the pool of arbitrators undermines the regime’s legitimacy. But views are more tentative…
RICHARD C. CHEN
Sovereign Debt ♦ Article
Unlawfully-Issued Sovereign Debt
In 2016, its economy in shambles and looking to defer payment on its debts, the Venezuelan government of Nicolás Maduro proposed a multi-billion dollar debt swap to holders of bonds issued by the government’s crown jewel, state-owned oil company Petroleós…
W. MARK C. WEIDEMAIER & MITU GULATI
International Human Rights ♦ Note
Going Global: An International Human Rights Approach to Russian LGBTQ+ Law and Practices
The current treatment of LGBTQ+ people in Russia is characterized by a discriminatory withholding of rights, political and societal isolation, and endangerment. While this situation is well-documented, the legal analyses of it have been more limited. Those that…
MICHAEL P. GOODYEAR
International Governance ♦ Essay
International Postal Governance: Avenues for Reform
The international mail delivery system relies on an intergovernmental organization known as the Universal Postal Union to set cross-border delivery fees and adjudicate postage disputes. Recently, this organization has come under fire from member-nations for allegedly…
ROSS MARCHAND
Volume 61 ♦ Issue 2 ♦ January 2021
International Arbitration ♦ Article
Arbitral Courts
In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who…
PAMELA K. BOOKMAN
International Conflict and War ♦ Article
Are All Soldiers Created Equal? – On the Equal Application of the Law to Enhanced Soldiers
Enhanced soldiers (with biochemical, cybernetic or prosthetic enhancements) will soon become an integral part of armed conflicts. The deployment of soldiers with superior battlefield abilities raises important legal questions that are only now emerging as…
YAHLI SHERESHEVSKY
International Governance ♦ Note
Cities in International Law: The New Landscape of Global Governance
For decades, the legal capacity of cities has not been taken seriously. This Note calls on international lawyers to refocus our field of vision to fully appreciate the role cities are already playing in international politics, the ways in which cities’ new global…
KATHERINE SCHROEDER
Enforcement and Accountability in International Law ♦ Article
Prosecuting Foreign States
In recent years, the Department of Justice has shown increased interest in prosecuting entities associated with foreign states for activities including cybercrime, economic espionage, and sanctions violations. It has also sought third-party evidence from…
CHIMÈNE I. KEITNER
Constitutions ♦ Note
Twenty-Six Amendments, but Only One Vote: Single Subject Rule as a Constitutional Defense Mechanism Against Democratic Decline
Many Turkish and foreign commentators lauded Turkey’s 2010 constitutional referendum as a step in the right direction towards a stronger and more robust democracy. However, because this packaged referendum represented twenty-six separate amendments…
SARAH HOUSTON
Volume 61 ♦ Issue 1 ♦ September 2020
Courts ♦ Article
Separate Judicial Speech
Domestic and international judges speak separately from their courts’ institutional voice in myriad ways. Instances of separate judicial speech range from written and oral dissents, to posing questions from the bench, to an array of extrajudicial activities, such as…
COSETTE D. CREAMER & NEHA JAIN
International Investment Law ♦ Article
The Rise of the Nonstate Actor: The New Face of the Bilateral Investment Treaty in the Middle East
This Essay will argue that the bilateral investment treaty, as the primary tool within international investment law for protecting the rights of foreign investors against sovereign states, are outdated and fail to account for the role of violent nonstate actors in…
MARY KABIR-SERAJ BISCHOPING
International Criminal Law ♦ Article
Aging Out: Elderly Defendants and International Crimes
One of the most salient characteristics of international criminal justice is delay. Whether at international tribunals, hybrid “internationalized” courts, or domestic ones, seldom do courts reach or adjudicate atrocity crimes quickly. Although much has been said about…
CAROLINE DAVIDSON
International Governance ♦ Article
Confessionalism in Lebanon: The Costs of Seeking Consensus Through Fragmentation
Confessional political systems are exceptional in that they seek to build consensus by reinforcing fragmentation of disparate groups. Such a tension is most evident in the case of Lebanon. The country’s creation and history make it an interesting case study…
KAREEM RAMADAN
Volume 60 ♦ Issue 3 ♦ April 2020
Sovereign Debt ♦ Article
King Leopold’s Bonds and the Odious Debts Mystery
In 1898, in the wake of the Spanish-American war, Spain ceded the colony of Cuba to the United States. In keeping with the law of state succession, the Spanish demanded that the United States also take on Spanish debts that had been backed by Cuban revenues…
JOSEPH BLOCHER, MITU GULATI & KIM OOSTERLINCK
International Human Rights Law ♦ Article
The Price of Prevention: Anti-Terrorism Pre-Crime Measures and International Human Rights Law
How far can law go to prevent violent acts of terrorism from happening? This Article examines the response by a number of Western democratic States to that question. These States have enacted special legal mechanisms that can be called ‘anti-terrorist…
ARTURO J. CARRILLO
Corporations ♦ Article
Unpacking the Rise of Benefit Corporations: A Transatlantic Comparative Case Study
The increasing interest in social entrepreneurship has brought with it the beginnings of a legal revolution in the way that firms are incorporated and managed. Thirty-four states have enacted statutes permitting the formation of special corporate entities known as…
SCOTT J. SHACKELFORD JD, JANINE HILLER, & XIAO MA
Domestic Application of International Law ♦ Article
Never Waste A Crisis: Anticorruption Reforms in South America
In the midst of dramatic corruption scandals, South American countries have passed some of the most noteworthy anticorruption legislation in the region’s history. This Article examines the wave of anticorruption reforms and how international law, and…
RACHEL BREWSTER & ANDRES ORTIZ
Immigration and Refugee Law ♦ Article
The Methodology of Immigration Law
The development of immigration law as a legal branch of its own allows for a deeper investigation into the underlying methodologies of this field. For the most part, immigration law is methodologically individualistic, emphasizing measures taken with respect to…
TALLY KRITZMAN-AMIR
International Human Rights Law ♦ Note
Bridging the Void in Transnational Corporate Accountability: Jesner v. Arab Bank as a Call to Action
The Supreme Court’s 2018 decision in Jesner v. Arab Bank, PLC likely signals the end of transnational corporate (TNC) human rights litigation under the Alien Tort Statute (ATS). More significantly, however, the ATS was never enough. The pace of globalization has…
RACHEL DAVIDSON RAYCRAFT
Volume 60 ♦ Issue 2 ♦ January 2020
International Arbitration ♦ Article
The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution
New legal hubs (NLHs) are “one-stop shops” for cross-border commercial dispute resolution, often found in financial centers, and promoted as an official policy by nondemocratic or hybrid (i.e., democratic and authoritarian) states. NLHs address the…
MATTHEW S. ERIE
Technology and Cyber ♦ Article
Against Privatized Censorship: Proposals for Responsible Delegation
From beheadings to hate speech, the internet is awash in material that poses risks to a range of state objectives. And in light of recent events—from Facebook’s role in the genocide in Myanmar to the ways in which social media was used by the perpetrator of the…
MOLLY K. LAND
Sovereign Debt ♦ Article
Sovereign Debt, Private Wealth, and Market Failure
This Article argues that the norms and legal practices of global finance in the arenas of sovereign debt and private wealth have led to a significant market failure, in particular the over-supply of sovereign borrowing and a related misallocation of global capital away…
ODETTE LIENAU
Enforcement and Accountability in International Law ♦ Article
State Immunity as a Tool of Foreign Policy: The Unanswered Question of Certain Iranian Assets
The Foreign Sovereign Immunities Act contains a number of “exceptions” to state immunity that are unique to the U.S. legal system. This issue came before the International Court of Justice in Certain Iranian Assets, where Iran submitted that non-recognition of its…
DANIEL FRANCHINI
Volume 60 ♦ Issue 1 ♦ September 2019
Courts ♦ Article
Against Privatized Censorship: Proposals for Responsible Delegation
For most of the past century, those who followed foreign relations law believed that federal law, including that made by the federal courts in the absence of legislation and treaties, should govern the field. Anything else would burden political and economic ties with…
PAUL B. STEPHAN
Domestic Application of International Law ♦ Article
Even Some International Law is Local: Implementation of Treaties through Subnational Mechanisms
Multilateral treaties today increasingly touch on subjects where there is existing domestic law in the United States. In the U.S. federal system, this domestic law may not be national law, but law of the constituent U.S. States. However, in light of Article VI of the U.S. …
CHARLOTTE KU, WILLIAM H. HENNING, DAVIS P. STEWART, & PAUL F. DIEHL
International Conflict and War ♦ Article
Inventing the War Crime: An Internal Theory
This Article offers a novel account of how and why the war crime arose as a legal concept in the late nineteenth and twentieth centuries. The reason was not new horrors and atrocities, though to be sure there were all too many of those. Nor was the war crime born of…
JESSICA LAIRD & JOHN FABIAN WITT
Immigration and Refugee Law ♦ Article
Checking Rights at the Border: Migrant Detention in International and Comparative Law
Human rights laws, both international and domestic, present a challenge to the sovereign rights of states. The right to determine who may enter a state is one of the fundamental attributes of sovereignty. Under international law, however, states cannot return a…
JILL I. GOLDENZIEL
Volume 59 ♦ Issue 2 ♦ 2019
International Arbitration ♦ Article
Transparency in International Commercial Arbitration: Adopting a Balanced Approach
The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration entered into force on October 18, 2017, and marks a step in the growing international effort to increase transparency in international arbitration. International arbitration is a…
MARY ZHAO
Constitutions ♦ Article
China’s Turn Toward Law
The picture of Chinese law that many Western scholars and commentators portray is an increasingly bleak one: since the mid-2000s, China has been retreating from legal reform back into unchecked authoritarianism. This article argues that, much to the contrary…
TAISU ZHANG & TOM GINSBURG
International Relations ♦ Article
Why Countries Diverge over Extradition Treaties with China: The Executive Power to Extradite in Common and Civil Law Countries
China has made a concerted effort for over a decade to conclude extradition treaties with developed countries that are popular “safe havens” for its fugitive officials and economic criminals. Chinese President Xi Jinping has placed these efforts at the forefront of…
NOAH E. LIPKOWITZ
Technology and Cyber ♦ Article
Unfriendly Choice of Law in FRAND
Standards are technical specifications providing a common design for products or processes to function compatibly with others. Standards are pervasive in various communications and platform technologies since they facilitate interoperability between different products….
KING FUNG TSANG & JYH-AN LEE
Customary International Law ♦ Article
No Longer Immune? How Network Theory Decodes Normative Shifts in Personal Immunity for Heads of State
The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity…
NADIA BANTEKA
Volume 59 ♦ Issue 1 ♦ 2019
International Trade ♦ Article
E-Commerce Transactions and Country of Origin Marking for Imported Products: A Gap Between Statutory Purpose and Legal Requirements
With some exceptions, items imported into the United States from abroad have been required to bear a marking indicating their country of origin since the passage of the Tariff Act of 1890. Identification of a product’s country of origin serves several purposes…
CHRISTINE ABELY
Courts ♦ Article
Personal Jurisdiction: The Transnational Difference
This Article engages with some of the key debates that have emerged among international law and civil procedure scholars by examining the flurry of recent transnational cases that have become a common feature on the U.S. Supreme Court’s docket. It makes three…
AUSTEN PARRISH
Technology and Cyber ♦ Article
Outsourcing of Governmental Functions in Contemporary Conflict: Rethinking the Issue of Attribution
It is common today for private entities to carry out activities that, in years past, were considered governmental in nature. Privatization and outsourcing have increased markedly across all sectors of government, ranging from the railways and prisons to…
JENNIFER MADDOCKS
International Human Rights Law ♦ Note
The Constitutional Protection of Freedom of Religion in Russia and Hungary: A Comparative Analysis
Freedom of religion is a cornerstone of healthy democracy. Although the commitment to advancing protection of religious minorities was at its peak in the 1990s, it slowly began to erode in both Russia and Hungary. However, despite the recent setback, it seems that…
MARILYN GUIRGUIS
Volume 58 ♦ Issue 2 ♦ 2019
Courts ♦ Article
Contextualizing Cost Shifting: A Multimethod Approach
Legal scholars devote a great deal of energy to understanding how judges allocate expenses in litigation — rules designed to encourage lawyers to bring cases, to discourage socially excessive litigation, or to sanction undesirable behavior by litigants or their legal counsels…
SERGIO PUIG
International Conflict and War ♦ Essay
Armed Conflict at the Threshold?
Seventeen years into the United States’ engagement in what America has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of…
DEBORAH PEARLSTEIN
International Trade ♦ Article
Tackling Fossil Fuel Subsidies Through International Trade Agreements: Taking Stock, Looking Forward
Fossil fuel subsidies undercut the international community’s Sustainable Development Goals and climate change objectives in many ways. Estimated at several hundred billion dollars per year, such subsidies also affect fossil fuel prices, and can therefore have…
CLEO VERKUIJL, HARRO VAN ASSELT, TOM MOERENHOUT, LIESBETH CASIER, & PETER WOODERS
International Investment Law ♦ Note
The Utility of Futility: Local Remedies Rules in International Investment Law
The local remedies rule is a customary rule of international law that requires foreign petitioners to exhaust domestic remedies before seeking international dispute resolution. Futility is an equitable exception that excuses noncompliance on the grounds that…
ZACHARY MOLLENGARDEN
Volume 58 ♦ Issue 1 ♦ 2018
International Criminal Law ♦ Article
Procedural Justice in Transnational Contexts
Procedural justice scholarship shows that perceptions of judicial fairness can strongly influence a court participant’s satisfaction with judicial outcomes, as well as the perceived legitimacy of the dispute resolution forum. What is largely unknown, however, is…
STEPHEN CODY AND ALEXA KOENIG
International Conflict and War ♦ Article
Analogies in Detentions: Distorting the Balance Between Military Necessity and Humanity
Seventeen years after the 9/11 attacks, the United States’ detention authority in the conflict against Al Qaeda, the Taliban, and associated forces is at its zenith. Congress and the federal courts have endorsed the Executive’s position that the 2001 Authorization for Use of…
CHARLES PENDLETON TRUMBULL IV
Domestic Application of International Law ♦ Note
Enforcement of International Treaties by Domestic Courts of Iran: New Developments
Recently, some judicial decisions made Iranian headlines. In a recent speech, President Hassan Ruhani praised a judge for the sources of law he used in rendering judgments. Ruhani was praising Justice Heshmet Rostemi, who, by invoking international human…
FARSHAD RAHIMI DIZGOVIN
Constitutions ♦ Article
Stealth Theocracy
Theocracies are typically thought to be born through constitutional revolution, not evolution. This Article explores a subtler phenomenon of constitutional transformation involving the place of religion in a constitutional order through less transparent means…
YVONNE TEW
International Human Rights Law ♦ Article
Discursive Justice: Interpreting World War II Litigation in Japan
Since the 1980s, human rights litigation has spread around the world. I propose an analytical framework by which to interpret the multiple motivations and results of human rights litigation. By examining a recent spate of lawsuits brought by victims of World War II…
TIMOTHY WEBSTER
Volume 57 ♦ Issue 3 ♦ 2018
Constitutions ♦ Article
External Dimensions of the French Constitution
France lives with a tension between its internationalist and Universalist aspirations and the national preoccupations of its domestic politics. On the one hand, international treaties prevail over ordinary domestic legislation. On the other hand, constitutional control…
JOHN BELL
Immigration and Refugee Law ♦ Article
Refugees Misdirected: How Information, Misinformation, and Rumors Shape Refugees’ Access to Fundamental Rights
The global refugee regime represents one of the few generous commitments governments offer to outsiders. Indeed, few persons fleeing armed conflict actually claim international protection upon first arriving in Europe, even though the benefits of legal protection…
MELISSA CARLSON, LAURA JAKLI, & KATERINA LINOS
Immigration and Refugee Law ♦ Article
Detaining Non-Citizens: Political Competition and Weak v. Strong Judicial Review
Outside the United States, many constitutional scholars have noted the rise of ‘weak’ or weakened models of judicial review, which give legislatures broad powers to determine the (final) scope and meaning of constitutional norms. Yet, the normative attractiveness of…
ROSALIND DIXON & BRIGID MCMANUS
Constitutions ♦ Article
Constitution in the World: The External Dimensions of South Africa’s Post-Apartheid Constitution
While South Africa’s post-apartheid constitution is often heralded as a model for other countries, particularly in Africa, the xenophobic attacks on foreigners in South Africa and the failure of South African foreign policy to support the progressive development of human…
HEINZ KLUG
Immigration and Refugee Law ♦ Article
The Rights of Aliens under the United States Constitution: At the Border and Beyond
The constitutional rights of aliens outside the United States make themselves known more by their absence than by their presence. Claims to such rights appear in judicial decisions usually to be denied and rarely to be granted. Only a few such rights exist at all for aliens…
GEORGE RUTHERGLEN
Constitutions ♦ Article
Alien Citizens: Kurds and Citizenship in the Turkish Constitution
Kurds are the largest minority ethnic group in Turkey. Most Kurds share the common religion of Islam with Turks, but they also have a distinct language, culture, and history. Turkey’s current Constitution, drafted after a military coup in 1980, is thoroughly…
OZAN O. VAROL
Constitutions ♦ Article
The External Dimensions of Constitutions
Constitutions are traditionally seen as inherently domestic documents, written by the people, for the people, and reflecting the nation’s highest values. Yet, constitutions also have important external dimensions. Constitutions define the territory of the nation. They…
EYAL BENVENISTI & MILA VERSTEEG
Immigration and Refugee Law ♦ Article
Country-Specific Investments and the Rights of Non-Citizens
In a 2007 article, Adam Cox and Eric Posner developed a “Second Order” theory of immigration law that offered predictions about when countries are likely to provide noncitizens with strong legal protections from removal. They argued that states benefit…
ADAM S. CHILTON & ERIC A. POSNER
Constitutions ♦ Article
The American Founding and Global Justice: Hamiltonian and Jeffersonian Approaches
On one conventional account, a constitution is quintessentially a national affair. It constitutes the state for a particular polity, creating the various organs and branches of government, defining the powers that they exercise, and setting forth the procedural…
DAVID GOLOVE
Constitutions ♦ Article
Vulnerable Insiders: Constitutional Design, International Law, and the Victims of Internal Armed Conflict in Colombia
This article, prepared for a conference on “The External Dimensions of Constitutions” held at the University of Cambridge in September 2016, explains how the Colombian Constitutional Court constructed a set of rights for a group of vulnerable insiders…
DAVID LANDAU
Constitutions ♦ Article
Israel’s External Constitution: Friends, Enemies, and the Constitutional/Administrative Law Distinction
When do we decide to extraterritorially apply constitutional law and when to extraterritorially apply administrative law? Using Israel as a case study, this Article examines the applicability of its constitutional law dealing with human rights to the Occupied…
ADAM SHINAR
Constitutions ♦ Article
Sovereignty and Beyond: The Double Edge of External Constitutionalism
This paper argues that the emergence and augmentation of the external dimension of state constitutional law is best understood as part of a broader process of the constitutionalization of state sovereignty since the eighteenth century. That gradual…
NEIL WALKER
Volume 57 ♦ Issue 2 ♦ 2018
International Governance ♦ Article
Unintended Agency Problems: How International Bureaucracies Are Built and Empowered
The ground underneath the entire liberal international order is rapidly shifting. Institutions as diverse as the European Union, International Monetary Fund, United Nations, and World Trade Organization are under major threat. These institutions reflect decades of…
ANU BRADFORD, STAVROS GADINIS, & KATERINA LINOS
Domestic Application of International Law ♦ Article
Statutory International Law
International law pervades the U.S. Code. This will come as a surprise to many Members of Congress, as well as to those who accept the common trope that Congress is ignorant about or hostile to international law. It also may be news to foreign affairs scholars who study…
ASHLEY DEEKS
Immigration and Refugee Law ♦ Article
Weathering the “Perfect Storm:” Welcoming Refugees While Protecting the United States at Home and Abroad
It is both an immense privilege and a daunting challenge to address the current prospects of the United States’ continued indispensable role in the “liberal international order” as a global leader in security, economic, and political matters. Given that many national…
PETER VINCENT
Technology and Cyber ♦ Note
A Design-Around for the United States Design Patent System: What Can the United States Learn from the United Kingdom and Canada in the Aftermath of Samsung v. Apple?
The recent Samsung v. Apple design patent litigation has generated substantial discussion of the United States design patent system’s weaknesses, particularly with respect to technologically complex products. In late 2016, the United States Supreme Court…
KATHERINE MCNUTT
Enforcement and Accountability in International Law ♦ Article
Building Multilateral Anticorruption Enforcement: Analogies between International Trade & Anti-Bribery Law
In the last twenty years, the United States government has put substantial resources behind the fight against foreign bribery by using the Foreign Corrupt Practices Act (FCPA) to prosecute unilaterally foreign and domestic companies who engage in corruption abroad…
RACHEL BREWSTER & CHRISTINE DRYDEN
Constitutions ♦ Article
Legislating Transnational Jurisdiction
Many scholars have observed, discussed, and debated Congressional interpretation of the Constitution. But few have considered Congress’s power to interpret the Constitution in an increasingly important context: constitutional personal jurisdiction in transnational cases…
AARON D. SIMOWITZ
International Conflict and War ♦ Note
Otherwise Occupied: The Legal Status of the Gaza Strip 50 Years after the Six-Day War
Fifty years after Israel’s occupation of the Palestinian territories began, and a dozen years after its disengagement from Gaza, the legal status of the Gaza Strip has been regarded as settled. Although no single conclusion has achieved consensus, two distinct camps have…
ROI BACHMUTSKY
Volume 57 ♦ Issue 1 ♦ 2017
Constitutions ♦ Article
Constitutional Design Two Ways: Constitutional Drafters as Judges
Constitutional scholarship often assumes a strict separation between processes of constitutional drafting and interpretation. Yet on constitutional courts around the world, the judges charged with interpreting a constitution’s text are often the same people who…
ROSALIND DIXON
Constitutions ♦ Article
Germany’s German Constitution
Comparative lawyers, working with blunt taxonomies such as “legal families,” have been satisfied with characterizing Germany as representative or a member of the “Germanic-Roman” law tradition. The life of the Federal Republic’s post-war legal culture, however…
RUSSELL A. MILLER
International Relations ♦ Article
Interpretive Divergence
Should principles of legal interpretation differ according to the nature or purpose of a legal instrument? In the domestic context, most discussions of interpretation proceed on the assumption that for each type of legal instrument — such as constitutions, statutes…
NEHA JAIN
International Human Rights Law ♦ Note
Decentering or Decentralizing? Economic, Social, & Cultural Rights in Federal Systems
Economic, social, and cultural (ESC) rights have proliferated in modern constitutional systems, but there has been no serious debate about how they might interact with another key element of constitutional design: federalism. What is more, no country to date has…
REEDY C. SWANSON