Dangerous Liaisons: The Responsibility to Protect and a Reform of the U.N. Security Council

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This Article responds to current literature, which unitarily advocates for a United Nations Security Council (UNSC) reform solution to the Responsibility to Protect (R2P) deadlock, particularly in the context of the situation in Syria. This Article argues, contra the consensus, that a reformed UNSC would hinder the crystallization of R2P as a customary norm and its application to humanitarian crises.

Combating Bribery of Indigenous Leaders in International Business

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As U.S. law enforcement agencies have intensified their efforts to combat bribery in international business under the Foreign Corrupt Practices Act (FCPA), one form of corruption has been overlooked: bribery of indigenous leaders by multinational enterprises undertaking projects that will impact their communities. This Article demonstrates that the FCPA, the Travel Act, and other federal statutes could be readily applied to this form of bribery.

The Right to Read

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This article argues that reading should be understood as a universal human right. Once recognized in principle, it remains necessary to translate the right to read from a vague ideal into concrete content. As a starting point, the right to read requires that every person be entitled to education for literacy and the liberty to freely choose the reading material they prefer. Less obviously, but crucially, the right to read also means that everyone must have access to an adequate supply of reading material. Law and policy must be designed to ensure that books, ebooks, and other reading material are made widely available and affordable—even to the poor and to speakers of minority languages.

Marbury Moments

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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

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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

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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

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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

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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

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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?

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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.