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Exporting Islamophobia in the Global “War On Terror”

Khaled A. Beydoun

The War on Terror is far more than a domestic project aimed to deter terrorism and shore up national security. The War’s policy, strategy, and accompanying epistemology, since its very inception, created opportunities for other nation states to initiate—or expand existing—domestic programs that conflated Muslim identity with terror suspicion. In turn, adopting the fundamental presumption of the War on Terror that drove American Islamophobia, feeds state-sponsored Islamophobia in states where the War on Terror was formally adopted.

This Article theorizes how Islamophobia is exported by way of the American-spearheaded War on Terror, and how it fed and still facilitates the structural Islamophobic policies in China and India—where the host governments are unleashing two of the most ominous systems of Islamophobia in the world. While led by the United States, the War on Terror gradually became a global crusade, whereby states across the world found an opportune moment to persecute and punish their own Muslim populations to achieve their ends.

 

The Past, Present, and Future of United States-China Mutual Legal Assistance

Loren M. Scolaro

The Mutual Legal Assistance Agreement (MLAA) between the United States and China, effective since the late 1990s, reflects the development of cooperative law enforcement between the two countries. Study of transnational law enforcement between the United States and China and use of the MLAA has been limited because of the few notable cases and a lack of transparency. This Note will attempt to fill some of the gaps in the academic literature. 

The MLAA, which is unique among mutual legal assistance mechanisms the United States has with other states, arose out of a rocky history of trying to meld two countries’ values and interests. In practice, both prosecution and defense attorneys have noted the MLAA’s limitations. Its provisions lack the accountability of other international agreements, and both the United States and China have taken steps towards unilateral investigation and prosecution of transnational crimes where American and Chinese interests diverge. While both countries have paid lip service to continuing the MLAA, there is no external enforcement, oversight, or incentive to increase cooperation. If the MLAA remains in its current form indefinitely, it is not likely to facilitate a stronger joint law enforcement relationship. Formalizing the MLAA as a treaty could demonstrate a deeper commitment to cooperation, but the current state of relations between the United States and China makes this step politically unfeasible. 

Foreign Affairs Prosecutions

Steven Arrigg Koh

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls for greater congressional engagement and judicial oversight to minimize such risks while still promoting accountability for cross-border, cyber, and international crime.

International Law and the Use of Force Against Contested States: The Case of Taiwan

Mikaela L. Ediger

Since the victory of Mao Zedong’s Communist forces in 1949, the People’s Republic of China (PRC) has laid claim to Taiwan. In 2005, the PRC adopted a law stating that China can use force against Taiwan, officially known as the Republic of China, if it undertakes to form an independent state. This law is an expression of the One-China policy: the idea that mainland China and Taiwan are part of the same country. However, present-day Taiwan is increasingly described as a de facto state with its own people, territory, government, and capacity for international relations. This Note asks whether international law on the use of force protects Taiwan from attack by China, given that Taiwan has many characteristics of a state but has not been formally recognized as such. Part I of the Note summarizes the debate over Taiwan’s statehood. Part II lays out the argument that non-state entities have no protection under international law on the use of force. This argument relies on a Westphalian conception of the international system, positing that states are the only subjects of international law. The Note then poses three “post-Westphalian” challenges to that argument: first, that “peoples” in pursuit of self-determination have legal protection from attack by states; second, that the United Nations Charter has been interpreted to forbid changing non-state entities’ legal status by force; and third, that states have an obligation under Article 33 to resolve their disputes without threatening international peace and security. Part III applies this legal framework to Taiwan. It finds that though the two sides of the debate are incommensurable because they are based on different understandings of international law, Taiwan’s geopolitical situation shows that arguments based on the Westphalian conception of statehood create absurd results. The post-Westphalian view that allows Taiwan limited rights under international law on the use of force better comprehends the geopolitical reality of contested states.

Towards Permanently Delegitimizing Article 98 Agreements: Exercising the Jurisdiction of the International Criminal Court over American Citizens

Antoinette Pick-Jones

This Note discusses one method to permanently delegitimize Article 98 agreements: exercising International Criminal Court (ICC) jurisdiction over Americans to prosecute them for alleged crimes committed in Afghanistan (“the Situation in Afghanistan”). Since their inception, Article 98 agreements have threatened the ICC’s mission by limiting states parties’ ability to assist the ICC in exercising jurisdiction over Americans. This Note considers potential proceedings against an American in the Situation in Afghanistan as a case study to demonstrate how, in practice, Article 98 agreements undermine the ICC’s anti-impunity mission. First, this Note describes the principles and procedures followed by the ICC. Second, this Note discusses the United States’ legal justifications for Article 98 agreements and responds to these justifications with the most prevalent critiques of Article 98 agreements. Although the legal bases for the agreements under Article 98(2) of the Rome Statute are controversial, this Note assumes that the agreements are legally valid as originally intended by the parties. However, this Note also assumes that Article 98 agreements are never binding on the ICC and thus cannot prevent the ICC from exercising its territorial jurisdiction. Finally, this Note explores the allegations against Americans in the Situation in Afghanistan and considers how Article 98 agreements are likely to hamper the ICC’s proceedings. This Note concludes that the Situation in Afghanistan is an opportunity to demonstrate the need to permanently delegitimize Article 98 agreements, and that it can serve as a catalyst for change, even if Americans are not prosecuted.

Three Angry Men: Juries in International Criminal Adjudication

Amy Powell

To date, no international criminal tribunal has seriously considered using a jury trial. In the International Criminal Court (ICC), for example, a panel of judges appointed by the Assembly of States Parties acts as the fact finder. In this Note, Amy Powell examines the theoretical justifications for a jury in the context of international criminal adjudication. She concludes that the use of a jury–or, at a minimum, the integration of the important values underpinning the institution of the jury–would greatly benefit the ICC by protecting important principles of justice.

Using Collective Interests to Ensure Human Rights: An Analysis of the Articles on State Responsibility

Margo Kaplan

This Note provides a critical analysis of the United Nations International Law Commission’s treatment of the legal interest in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (Articles). It focuses on two decisions that the International Law Commission (ILC) made during the drafting process: 1) the decision to use a narrow definition of “injured state,” excluding states that suffer a breach of an obligation owed to them solely as members of the international community; and 2) the decision to replace a provision recognizing and regulating the practice of collective countermeasures with a savings clause that provides no guidance for the use of collective countermeasures, leaving the legality of such actions uncertain.

This Note argues that, although the ILC was correct to weigh the risks of allowing states broad discretion to act in the name of collective interests, the development of the law of state responsibility would have been better served had the ILC taken a more progressive approach to recognizing the interests of the international community in enforcing state responsibility. First, the ILC should have more broadly defined “injured state” to include states that suffer a breach of an obligation owed to them solely as members of the international community, but should also have limited the types of actions such states would be permitted to take in response to a breach. Second, the ILC should have adopted Special Rapporteur James Crawford’s proposal that the Articles specifically allow and regulate the practice of collective countermeasures in response to a gross and well-attested breach of certain fundamental obligations. This approach strikes a better balance between the potential value of collective countermeasures as a tool to help those without direct access to the international legal system and the risk that collective countermeasures will be abused by powerful states seeking to further their own interests.

Toss the Travaux? Application of the Fourth Geneva Convention to the Middle East Conflict—A Modern (Re)Assessment

David John Ball

The Israeli-Arab conflict remains one of the longest running disputes in history. The cycle of battle and negotiation has strewn the landscape with failed attempts at peace and generated decades of discussion. Much of this discussion has focused on the concern over human rights violations, overshadowing analysis of potential political and legal resolutions to the conflict. At the center of the human rights discussion stands the Fourth Geneva Convention, an international agreement codifying certain rules of war designed to protect civilians caught in the midst of conflict. The bulk of the literature calls for Israel’s application of the Fourth Geneva Convention and hones in on methods for Convention enforcement. In this Note, however, David John Ball argues that the Final Record of the Diplomatic Conference from the drafting of the Fourth Geneva Convention, or the travaux prdparatoires, makes clear that the Convention does not apply to nonstates. The Note undertakes a close reading of the travaux and finds that the widely accepted interpretation of the Fourth Geneva Convention contained in the Pictet Commentary cannot justify its application in the Middle East context. Specifically, the travaux reflects that the drafting states’ concerns over sovereign rights following World War II led to a disconnect between the Convention’s allegedly humanitarian aim of protecting civilians above all else and its capability to do so in all situations. Instead, the drafting states neither intended nor created a treaty capable of application to the complex situation existing in the Middle East. The unique history and prolonged occupation of the region, given the statements contained in the travaux, reveals that the Fourth Geneva Convention is not applicable to the conflict between Israel and the nonstate entity commonly known as “Palestine.” This Note concludes that eliminating incorrect assumptions about the applicability of the Fourth Geneva Convention is crucial to making progress toward political and legal resolutions to the conflict.

From Fur to Fish

Katrina Miriam Wyman

Reconsidering the Evolution of Private Property

One of the most enduring questions about private property is why it develops. Strongly influenced by a short article by economist Harold Demsetz, property scholars recently have analyzed the evolution of private property in economic and social terms, and described it as a response to factors such as changes in relative prices, measurement costs, and the size and heterogeneity of user groups. In this Article, Professor Katrina Wyman argues that Demsetzian-inspired accounts of the evolution of private property tend to neglect the role of the state in property rights formation. Building on the extensive scholarship about the evolution of property rights, she emphasizes the need to take seriously the implications of the political process by which private property often is formed.

To underscore her theoretical argument about the evolution of private property, Wyman also offers a case study of contemporary property rights formation. For over six decades, an international movement has been underway to enclose the oceans, including marine fisheries. Drawing on original research, Wyman examines why individual transferable quotas and similar instruments have been slow to develop in U.S. coastal fisheries in federal waters since national jurisdiction over fisheries was extended to 200 miles from the shore in 1976.

In closing, Wyman underscores the richness of Demsetz’s pioneering account of private property and the scholarship that it has spawned. But she also suggests that there remains a large gap between how private property actually evolves and many of the prevailing theoretical understandings of the development of property rights. She argues in turn that filling this gap requires the development of a more robust positive theory of the evolution of private property that takes into account the political process through which private property often is formed, and more systematic empirical research into the development of property rights.

Binding Corporations to Human Rights Norms Through Public Law Settlement

Benjamin C. Fishman

Recent settlements in the United States and France of human rights litigations against oil companies Unocal and Total have made it clear that litigation is a viable tool for holding companies to account for their involvement in human rights abuses abroad. This Note argues, however, that the Unocal and Total settlements inadequately reflect the public importance of the cases, which sought to force Unocalnamely, the prospective intervention in ongoing situations of injustice and the articulation of public norms. Instead, by channeling much of the settlement funds into community development projects unrelated to the human rights abuses, and by failing to demand any fundamental changes in the defendant companies’ conduct, the settlements replicate a pernicious element of contemporary “corporate social responsibility” efforts: the characterization of good corporate behavior as a matter of charity rather than as a matter of right.

This Note argues that future settlements of human rights cases against corporations can—perhaps more effectively than fully litigated cases—better reflect the promise of public law litigation by setting up legally binding systems to monitor corporate conduct. Such systems could effectively prevent the type of human rights-threatening behavior transnational corporations are most likely to commit. Furthermore, such monitoring systems would be norm-producing, insofar as they would continually elucidate how corporations threaten human rights, and would generate an evolving repertoire of ways to address such threats. In so doing, monitoring systems could serve as bases for NGOs’ international human rights campaigns and as models for replication outside of the litigation context, thus further disseminating norms of appropriate corporate conduct.