A World Without Torture

By:

This lecture is based on testimony delivered on January 7, 2005 before the Senate Judiciary Committee regarding the nomination of the Honorable Alberto R. Gonzales as Attorney General of the United States, as well as remarks given at the Association of the Bar of the City of New York on November 1, 2004 at a panel entitled “Torture:  Where Were the Lawyers?”  The editors of the Columbia Journal of Transnational Law have graciously allowed me to publish this lecture in lieu of the remarks I delivered when I received the Wolfgang Friedmann Award on April 24, 2003 at Columbia Law School.  An updated version of those remarks was subsequently published as Harold Hongju Koh, Transnational Legal Process After September 11, 22 BERKELEY J. INT’L. L. 337 (2004). I thank Dora Gruner and the editors of Volume 41 of the Journal for according me this recognition. I am also deeply grateful to my beloved friends and devoted colleagues, Columbia’s brilliant Professor Gerry Neuman and his wife Carol, for their three decades of friendship and for Gerry’s characteristically generous introduction at the Friedmann Banquet. My longtime friends and comrades-in-arms, Lou Henkin and Lori Fisler Damrosch, also graciously welcomed me to Columbia Law School and supported me warmly in receiving this award. Finally, the Friedmann Award banquet marked my last occasion to see the great and gentle Oscar Schachter, a remarkable man and international lawyer. Oscar Schachter believed in a world without torture. It is to his memory that I dedicate this Essay. Read Koh’s...

Remembering Oscar Schachter

By:

This tribute was delivered at A Memorial Celebration of Oscar Schachter’s Life, on January 21, 2004, at Columbia Law School, and was mistakenly omitted from the Tributes published in 42 COLUM. J. TRANSNAT’L L. 619 (2004).  The Editors of the Journal apologize to Professor Gardner and to the family of Professor Schachter for this oversight. Read Gardner’s tribute to Oscar...

Medellin v. Dretke: Federalism and International Law

By: , ,

This is an edited version of a debate held at Columbia Law School on February 21, 2005. The event was co-sponsored by the Columbia Journal of Transnational Law and the Federalist Society. All footnotes have been supplied by the Editors of the Journal with the approval of Professors Bradley, Damrosch, and Flaherty. The conversational style of the debate has been retained. All errors should be attributed to the Journal. The Journal would like to thank Professors Bradley, Damrosch, and Flaherty for their participation in this event and the subsequent editing of the transcript. The Journal would also like to thank Blaine Evanson and the Federalist Society for co-sponsoring this...

Shoring up the Weakest Link: What Lawmakers around the World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime

By:

While many countries have modernized their laws to take into account law enforcement needs to counter the threat of cybercrime, many others are in the process of doing so or have yet to begin. Drawing from the laws of a number of countries and from the provisions of the Convention on Cybercrime (2001), this Article discusses the policy choices lawmakers must make in developing appropriate substantive and procedural laws to combat cybercrime....

Dred Scott and International Law

By:

As we ponder the contemporary debate about the proper use of international and foreign law in interpreting U.S. constitutional law, it might be well to remember that in 1857, the Supreme Court, in its most infamous judgment, Dred Scott v. Sandford, was already struggling with the controversy. This Article looks first at the increasingly hostile position that international and foreign law took towards slavery in the period from the American Revolution to our Civil War. Second, we discuss the nine judicial opinions in Dred Scott and explain how the judges variously relied on international and foreign law to defend or attack slavery and to interpret the U.S. Constitution. The majority of that sharply divided Court, led by Chief Justice Taney, unhappily held that African Americans could never be U.S. citizens and that Congress could never make slavery illegal in the Western territories, the first time since Marbury v. Madison that the Supreme Court used judicial review to strike down an act of Congress. The Dred Scott judges disagreed, often emotionally, about whether the increasingly hostile attitude of international and foreign law towards slavery could or should affect outcomes in U.S. constitutional law. Third, and finally, we explore the lessons of Dred Scott. Most importantly, the case reminds us that American exceptionalism in international law and politics helped persuade some on the Supreme Court to protect our then so-called “peculiar institution,” slavery, and to disregard the progressive development of international and foreign...

Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees

By:

Not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war. This Article provides detailed exposition of the types of improprieties abetted by previously secret memos and letters of various lawyers and others within the Bush Administration. The Article demonstrates why several of the claims in such memos were in serious error; what type of illegal orders and authorizations were actually given by the President, the Secretary of Defense, and various military commanders at Guantanamo and in Iraq; what type of other authorizations in support of a common plan to violate the Geneva Conventions and human rights law existed; and what type of illegal interrogation tactics were approved and used at Guantanamo, in Afghanistan, in Iraq, and apparently elsewhere by U.S. military personnel, civilians, and the CIA. The Article also provides detailed attention to various laws of war and human rights relevant to interrogation and treatment of detained persons; why relevant rights and duties are absolute and remain so regardless of claims by the President and others to deny full coverage to alleged terrorists and enemy combatants; why there can be leader responsibility for dereliction of duty in addition to responsibility of perpetrators, aiders and abettors, and those who issued illegal orders; and why the President and all within the executive branch are and must continue to be bound by the laws of war and other relevant international...

Fig Leaves, Fairy Tales, and Constitutional Foundations: Debating Judicial Review in Britain

By:

This Article examines an important and vigorous debate going on in Britain about the origins and justifications, within that country’s legal system, of judicial review. The Article traces the recent evolution in British legal thought about the theoretical justifications for judicial review. It begins with an examination of the traditional Diceyian approach to judicial review, based exclusively on the British doctrine of parliamentary sovereignty, and goes on to examine the current “common law” approach, which acknowledges a role for British judges engaged in judicial review that is independent of Diceyian notions of parliamentary intent. The Article then broadens in scope, discussing how the debate in Britain, while superficially unique to that nation, in fact raises foundational issues important to any democratic nation struggling to balance judicial protection of individual rights with democratic-self governance. The Article concludes by highlighting several ways our own struggle with judicial power can be enriched by a deeper understanding of the British...

Laws of War in the Pre-Dawn Light: Institutions and Obligations in Thucydides’ Peloponnesian War

By:

This Essay in honor of Oscar Schachter criticizes both ahistorical renderings of the law of war and realist depictions of Peloponnesian War by asking whether Thucydides describes the conditions of a law of war. Examining the history in detail, Sheppard considers whether Thucydides described a sufficient institutional structure to recognize and enforce an intermunicipal law during war, as well as concepts of jus ad bellum and jus in bello. Despite the tradition of reading Thucydides as a realist, this Essay concludes that a more accurate reading would be that Thucidydes not only describes a form of a law of war but provided ample evidence of the benefits of its acceptance and the dangers of its...

Direct vs. Indirect Obligations of Corporations Under International Law

By:

International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly–that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms–primarily those relating to war crimes, crimes against humanity, and forced labor–apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed by effective enforcement mechanisms, states would lose control over compliance with the norms. If not accompanied by an effective enforcement mechanism, the norms would probably be widely disregarded. The first option is likely to be strongly resisted by states; the second option would do little for the interests sought to be protected and would be bad for international...

Evolution of the International Law of Alienability: The 1997 Land Law of Mozambique as a Case Study

By:

A fundamental right to sell land is implied by a recent surge of ownership and alienability references in international law. After decades of ideological controversy, several new documents suggest that the scope of the human right to property is gradually broadening. But a number of nations, including Mozambique, still impose restrictions on land alienability. This Note will use Mozambique as a case study to analyze strengthening international recognition of land alienability rights. While domestic alienability restrictions probably do not violate current international obligations, they may soon be incompatible with an evolving standard of private property ownership. But the case of Mozambique presents unique problems in considering the benefits of a private land market, including the historical influences of customary African law, colonialism, and Marxism, as well as legitimate fears over the adverse effects privatization could have on African development. In addition, the will of the people may be manifest by the democratically elected government’s decision to continue its alienability restrictions. Given these concerns, this Note concludes that it may not be prudent to invoke international human rights law to pressure Mozambique and similarly-situated nations to privatize...