• A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments

      Levit, Janet (2005-01-01)
      International law often makes storytellers of onlookers. The stories that gain scholarly and popular traction are of a common genre, focusing on international law from the top down. They typically center on a state's treaty-based commitments or on an intergovernmental institution born from a treaty. They open with diplomats at majestic negotiating tables, secluded in remote yet pristine locations, wrangling politely over the text of a treaty. The climaxes are photo-opportunity events-a treaty-signing ceremony or the founding of a new institution. The denouement is the "trickle-down," the inevitably imperfect business of translating international law into domestic or transnational practice. This traditional, top-down international lawmaking story tells of state actors making international law and imposing it on others who may have been quite removed, geographically and politically, from the entire lawmaking process.
    • A Comparative Analysis of the United States's Response to Extradition Requests from China

      Bloom, Matthew (2008-01-01)
      Since the late 1970s, China has undertaken a process of opening up to the world and engaging in economic reform. This process has brought increased opportunities for Western nations to cooperate with China. Predictably, efforts to cooperate also have given rise to new challenges, as Chinese and Western cultures and systems often conflict. Extradition, which is an important component of transnational criminal law enforcement, presents one area in which cooperation with the Chinese was not previously available, but now can provide important benefits. The United States and its allies are dedicated to combating international terrorism, and they are negotiating mutual legal assistance and extradition treaties "at an increasingly vigorous pace" in order to facilitate the return of suspected terrorists for prosecution.
    • A Contractual Approach to Investor-State Regulatory Disputes

      Chen, Richard (2015-01-01)
      In 2010, Philip Morris International filed a complaint against Uruguay alleging that certain regulations on cigarette packaging violated the bilateral investment treaty (BIT) between Uruguay and the company's home state of Switzerland. In its request for arbitration, Philip Morris claimed that the government's anti-smoking legislation decreased the value of the company's investments in the country in violation of Uruguay's obligation under the BIT to provide fair and equitable treatment to Swiss investors. Among other things, the legislation requires that eighty percent of the surface area of cigarette packaging be devoted to health warnings, and that the packaging include "graphic images ... to illustrate the adverse health effects of smoking." The arbitral tribunal in which the claim was filed recently determined that it had jurisdiction over at least some of Philip Morris's claims, and the arbitration is now proceeding on the merits.
    • A Delicate Balance: Extradition, Sovereignty, and Individual Rights in the United States and Canada

      Rose, Thomas (2002-01-01)
      Historically, extradition has been a reflection of, and an exercise in, the supremacy of the state over the individual A fugitive is by definition an affront to that supremacy, for such a person embodies the inability of the state to hold accountable someone who ostensibly has broken its legal code. Without prosecution there is criminal impunity, and that is seen as a direct challenge to the authority and sovereign duty of the state to protect its citizens. An extradition treaty provides a way to meet this challenge by giving states a mechanism to apprehend each other's fugitives.
    • A Fiduciary Theory of Jus Cogens

      Criddle, Evan; Fox-Decent, Evan (2009-01-01)
      In international law, the term "jus cogens" (literally, "compelling law") refers to norms that command peremptory authority, superseding conflicting treaties and custom. The influential Restatement on Foreign Relations of the United States (Restatement) defines jus cogens to include, at a minimum, the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and "the principles of the United Nations Charter prohibiting the use of force." Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.
    • A Historical Perspective on Filings by Foreign Sovereigns at the U.S. Supreme Court: Amici or Inimici Curiae?

      Godi, Matteo (2017-01-01)
      Over the last decade, the citation of international sources of law in U.S. Supreme Court decisions has stirred up considerable controversy. This has played out not only within the academy, but also among the Justices.
    • A Law and Geography Perspective on the New Haven School

      Osofsky, Hari (2007-01-01)
      In his reflections on the twenty-fifth anniversary of the founding of the Yale Journal of International Law, Michael Reisman described the journal's origins. In 1974, a group of dedicated graduate and J.D. students, who self-identified as members of the New Haven School, began the process of establishing the journal in the face of resistance from the law school administration. After work "[i]n secrecy, in the bowels of the international law library, usually working at night in a setting that must have seemed increasingly like an underground bunker," the students published their first issue and then continued without support from the Yale Law School for almost ten years.
    • A Leg To Stand On? Post-1997 Hong Kong Courts as a Constraint on PRC Abridgment of Individual Rights and Local Autonomy

      Jones, David (1987-01-01)
      In 1984 Britain and the People's Republic of China (PRC) entered into an agreement providing for termination of Hong Kong's status as a Crown Colony and "resum[ption of] the exercise of sovereignty" over the territory by China in 1997. Under the terms of the Joint Declaration (Declaration), China bound itself to limit its exercise of sovereignty in the interest of "maint[aining] the prosperity and stability of Hong Kong."' The Declaration promises local autonomy and the perpetuation of the current economic and social systems. It also includes a "bill of rights" which, if effective, would preserve for Hong Kong residents personal and economic freedoms still unknown on the Mainland.
    • A Legal Strategy for Controlling the Export of Hazardous Industries to Developing Countries: The Case of Asbestos

      Brennan, Troyen; Lucas, Laurence (1983-01-01)
      As the United States and other industrialized countries have promulgated standards of safety and health for the workplace since the 1970s, employers have sought methods of minimizing or avoiding the cost of such controls. One method is simply to relocate hazardous production processes in developing nations that do not demand compliance with occupational health standards. This has resulted in the export of occupationally- related diseases to developing countries. The problem warrants the concern of human rights and public health advocates in the United States and other countries from which hazardous industries are exported.
    • A Method for Evaluating the Deep Seabed Mining Provisions of the Law of the Sea Treaty

      Katz, Ronald (1980-01-01)
      For most of the last decade, the longest and largest United Nations Conference in history has negotiated more than three hundred articles of a treaty covering every aspect of ocean law. At the end of the 1980 Conference session, the head of the United States delegation announced that a treaty would be ready for signature in 1981. Shortly before the 1981 session, however, the Reagan Administration announced that it would review the United States approach to the Draft Convention on the Law of the Sea ("Draft Treaty" or "Treaty") because of concern that provisions of the Draft Treaty dealing with the mining of the deep seabed beyond national jurisdiction -the so-called "common heritage of mankind" -were unfavorable to American business interests. The purpose of this Comment is to propose a method for analyzing whether the provisions of the Draft Treaty applying to private seabed mining companies should be an obstacle to ratification of the entire treaty.
    • A Pluralist Approach to International Law

      Berman, Paul (2007-01-01)
      The New Haven School of International Law offered a significant, process-based rejoinder to the realism and positivism that had dominated international relations theory in the United States since the close of World War II. Whereas international relations realists viewed international law as merely a product of state power relations, and positivists dismissed international law entirely because it lacked both sovereign commands and a rule of recognition, scholars of the New Haven School studied law as a social process of authoritative decisionmaking. Such a study necessarily expanded the state-focused perspective of both the realists and positivists by drawing attention to ongoing interactions among variously situated bureaucratic and institutional actors.
    • A Post-Cold War Human Rights Agenda

      Henkin, Louis (1994-01-01)
      The international human rights movement was still in its infancy when the Cold War broke out, and it has lived almost all of its years under the heavy shadow of that war. In those circumstances, and in less than half a century, international human rights have enjoyed an astounding success: the human rights idea is established beyond challenge; the world has accepted an excellent bill of human rights. But resistance built into the international political system, and aggravated by the Cold War and other ideological tensions, has left some defects in human rights standards and appalling deficiencies in the means for implementing them. In this post-Cold War era, the international community should fill normative lacunae and repair normative defects. Above all it must move boldly towards an effective monitoring and enforcement system and take big steps in cultivating a human rights "culture." Important progress in these respects will require commitment and energetic leadership by the United States.
    • A Response

      Duncan, Sheena (1985-01-01)
      Any post-apartheid government is going to have tremendous challenges to face if it is to be able to even begin to meet the expectations of the people. This paper will focus on the three issues of the land, the bureaucracy, and the rule of law.
    • A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts

      Klein, David (1988-01-01)
      The emergence of an international law of human rights has substantially complicated the application of international law by U.S. courts. In the past, when international rules were thought only to affect relations between sovereigns, domestic courts could limit their application to situations involving one nation's infringement of another's rights. Such sovereign rights were well-established by practice, conventions, treaties, and scholarly writings. The recognition, following the genocides of this century, of human rights as a subject of international law has made the protection of international law available to numerous non-sovereign parties that did not enjoy it before. At the same time, however, it has complicated the task of discovering and applying international law in domestic settings. The utopian promise of a global law protecting all peoples has been brought within reach, but a cohesive theoretical framework for its application by domestic courts is still lacking. This Comment attempts to provide the outlines of such a framework.
    • A Theory of Crimes Against Humanity

      Luban, David (2004-01-01)
      No record exists of how the term "crimes against humanity" came to be chosen by the framers of the Nuremberg Charter. The term was selected by U.S. Supreme Court Justice Robert Jackson, the chief U.S. prosecutor at Nuremberg and the head of the American delegation to the London Conference that framed the Charter. Jackson consulted with the great international law scholar Hersch Lauterpacht, but they decided to leave their deliberations unrecorded, apparently to avoid courting controversy. In 1915, the French, British, and Russian governments had denounced Turkey's Armenian genocide as "crimes against civilization and humanity," and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators. But the United States objected at that time that the so-called "laws of humanity" had no specific content, and the proposal to try the Turks was scuttled. Apparently, Jackson saw no reason to invoke a precedent to which his own government had earlier objected on rule of law grounds and concluded that the less said, the better. Cherif Bassiouni, who chronicles these events, nevertheless finds the crimes-against-humanity terminology "most appropriate," and, aside from worries to be considered below that the term runs the danger of demonizing those who commit such crimes, it is hard to disagree. The phrase "crimes against humanity" has acquired enormous resonance in the legal and moral imaginations of the post-World War II world. It suggests, in at least two distinct ways, the enormity of these offenses. First, the phrase "crimes against humanity" suggests offenses that aggrieve not only the victims and their own communities, but all human beings, regardless of their community. Second, the phrase suggests that these offenses cut deep, violating the core humanity that we all share and that distinguishes us from other natural beings.
    • A Trade Secret Approach to Protecting Traditional Knowledge

      Varadarajan, Deepa (2011-01-01)
      The skills and innovations of indigenous and local communities-their so-called "traditional knowledge "-go largely unrecognized by intellectual property law. Meanwhile, patent and copyright law reward the innovative and creative contributions of individuals and firms that freely use traditional knowledge as inputs for a variety of products. This perceived inequity has inspired the ire of indigenous groups, advocates, and developing country governments, has led to impassioned accusations of "biopiracy" and 'first-world imperialism," and has triggered various reform efforts. Despite a decade of trying, however, traditional knowledge holders and their advocates still seek meaningful recognition and rights within the international IP framework. This Article argues that the doctrinal and normative divide between traditional knowledge and intellectual property law has been overemphasized and that trade secret law can potentially narrow it. The application of trade secret law to protect traditional knowledge-a "trade secret approach "-is a practical path forward in the current international impasse. Moreover, the underlying justifications for trade secret law offer a useful normative guide for theorizing traditional knowledge protection and linking it to the broader purposes of IP law. Like trade secret law generally, the protection of traditional knowledge can ultimately serve the broader purposes of IP law by reducing holders' distrust in negotiating with outsiders and by encouraging the disclosure of potentially valuable secret information to more productive users and improvers.
    • A Typology of National Security Policies

      Tapia-Valdes, J.A. (1982-01-01)
      Authors addressing the problem of how to assess properly human rights when derogated in the face of national security claims often point out the difficulty of determining what national security means. This ambiguity presents several problems for those who monitor human rights. Wolfers has observed that when political formulas such as "national interest" or "national security" gain popularity they need to be scrutinized with particular care. They may not mean the same thing to different people. They may not have any precise meaning at all. Thus, while appearing to offer guidance and a basis for broad consensus, such formulas may be permitting everyone to label whatever policy he favors with an attractive and possibly deceptive name.
    • A Very Clear and Present Danger: Hate Speech, Media Reform, and Post-Conflict Democratization in Kosovo

      Palmer, Laura (2001-01-01)
      The great changes in world politics over the past decade have precipitated a vast increase in efforts to promote American legal models in the provision of assistance to regimes in transition throughout the world. The euphoria associated with the transitions from communism throughout the former Soviet Bloc has ushered in, as one scholar notes, "a triumphant philosophy of history: the conversion of Them into Us (or U.S.), the final admission that freedom and democracy are to be gained only where the magical logics of capitalism and modernity are allowed to cast their spell over time and space." As a result, as many have noted, much American legal guidance to transition societies in the past decade has been characterized by the wholesale exportation of American norms, without adequate consideration of their context or consequences.
    • A View From the Top: American Perspectives on International Law After the Cold War

      Taft, William (2006-01-01)
      In the early years of the last century, the United States was among the leading states promoting the development of legal regimes and institutions to bring about the peaceful resolution of disputes between nations. Our later failure to join the League of Nations reflected the reluctance of many of our citizens, then as now, to allow decisions about our vital national interests to be made by any but our own elected leaders. Later still, however, in the years following World War II, the United States exerted its influence to negotiate treaties to create international obligations and set up institutions to manage international relations on an unprecedented scale. These efforts reflected confidence that international agreements and dispute resolution mechanisms could promote our interests in many fields and that the risk that they would be politicized to our disadvantage was low. Certainly, our policy of promoting the rule of law in international affairs was often portrayed as a willingness to relinquish the capacity to decide matters for ourselves as they came up and to abide by the results of systems in which we had a voice but not control, in return for other states doing the same.
    • A World Transformed

      Koh, Harold (1995-01-01)
      Two decades ago, while Richard Nixon was President and the Vietnam War still raged, ten energetic Yale law students founded Yale Studies in World Public Order. The prologue to their first issue, painstakingly typed and mulitlithed, announced the journal's commitment "to publishing articles which contribute to the understanding of [a] highly interrelated global process." The lead article, entitled The New Haven School of International Law: An Invitation to a Policy-Oriented Jurisprudence, observed: The New Haven school does not describe the world's different community decision processes through a dichotomy of national and international law, in terms of the relative supremacy of one system of rules or other interrelations of rules. Instead, it describes them in terms of the interpenetration of multiple processes of authoritative decision of varying territorial compass .... [i]nternational law is most realistically observed, not as a mere rigid set of rules but as the whole process of authoritative decision in which patterns of authority and patterns of control are appropriately conjoined.