Marbury Moments

By:

Every court has its Marbury moment. To support this argument, this Article reviews seminal cases from three types of courts: U.S. federal, regional, and international. This Article concludes that Marbury moments provide novel insights about both Marbury v. Madison itself and the nature of domestic and international courts.

Putting Your Head in the Tiger’s Mouth: Submarine Espionage in Territorial Waters

By:

Incidents by suspected Russian submarines spying in Swedish and Finnish waters in 2014 and 2015, and the ample history of such incidents over the past sixty-five years involving Chinese, British, North Korean, American, and Soviet (and Russian) submarines, suggest undersea spying occurs with some regularity, yet the political and legal consequences are uncertain. While submarine intrusions into the territorial sea are not uncommon, the legal standards that govern such operations and the rights and duties of affected coastal states are murky.

The Diversity Challenge: Exploring the “Invisible College” of International Arbitration

By:

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Although defining the international arbitration community is challenging, rather than leave the “invisible college” unexamined, this Article offers one systematic glimpse into the global elites of international arbitration.

Black Holes and Open Secrets: The Impact of Covert Action on International Law

By:

This Article considers how secrecy and covert conduct shape the development of international law. Focusing on the area of the use of force, it examines how international law-making processes are affected when a state acts covertly—that is, when a state does not publicly acknowledge its conduct—and that covert conduct comes—partially or fully, accurately or inaccurately—to public light.

Economic Dealings with Occupied Territories

By:

This Article conducts a comprehensive survey of the relevant current state practice and judicial precedent regarding occupied territories, aside from the well-examined case of Israel. State practice and decisions of important national courts support a fully permissive approach to economic dealings by third-party states or nationals in territories under prolonged occupation or illegal annexation. There is no obligation on third-party states to block such activity, or to insist on particular language on product labels, or to ensure that their foreign aid funds do not cross into occupied territory.

Non-Refoulement in a World of Cooperative Deterrence

By:

Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations.

Are Strong Constitutional Courts Always a Good Thing for New Democracies?

By:

This Article’s starting point is the recent series of direct political attacks by governments on constitutional courts in several new democracies that has had a sobering, if not deflating, effect on what had been the bullish mood concerning the role and success of judicial review in constitutional transitions. It takes the opportunity of these striking episodes to reconsider the standard model and engage in some pragmatic reflection on whether and how judicial review might sometimes also disserve new democracies.

Closing the Implementation Gap: Grievance Redress and India’s Social Welfare Programs

By:

Poor implementation of social welfare programs is a chronic challenge in developing countries such as India. Yet, despite the large number of people affected and the serious consequences of implementation failure, there have been few studies, and even less theorization, of grievance redress in these contexts. Based on fieldwork conducted by the author, this Article examines grievance redress mechanisms for social welfare programs in the Indian states of Madhya Pradesh and Bihar.