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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.

Counterterrorism and Checks and Balances: The Spanish and American Examples

Ari D. MacKinnon

Although the United States’ so-called “War on Terror” has entailed significant military action, it has also involved the augmentation of the executive’s law enforcement powers. The result has been the emergence of a distinct “counterterrorism” model of coercive government action, falling between the traditional models of war and criminal law enforcement. This Note seeks to place the U.S. counterterrorism model within a larger international context by comparing it with that of another Western democracy, Spain. The author contends that the U.S. model evinces less respect for customary checks and balances than does the Spanish. Nonetheless, the author questions whether the Spanish model’s greater relative commitment to checks and balances has in practice prevented government overreaching. The author concludes that both the Spanish executive and Parliament have overstepped the bounds of their constitutionally prescribed counterterrorism competences, despite the existence of checks and balances. In addition to suggesting that these excesses may be partially attributed to the institutional heritage of Francoist Spain, the author surmises that government overreaching may be endemic in any regime, such as the Spanish, that transparently vests special counterterrorism competences in the executive and legislative branches.

Taxing Citizens in a Global Economy

Michael S. Kirsch

This Article addresses a fundamental issue underlying the U.S. tax system in the international context: the use of citizenship as a jurisdictional basis for imposing income tax. As a general matter, the United States is the only economically developed country that taxes its citizens abroad on their foreign income.

Despite this broad assertion of taxing jurisdiction, Congress allows citizens abroad to exclude from taxation a limited amount of income earned from working outside the United States. Influential lobbying groups, including businesses that employ significant numbers of U.S. citizens abroad, argue that this exclusion is necessary in order to keep American business competitive overseas. Recently, these groups have argued that modern developments, including lowered barriers to trade and the increased mobility of workers, strengthen this argument, and that the United States must allow an unlimited foreign earned income exclusion, or perhaps abandon citizenship-based taxation altogether, in order to remain competitive.

This Article analyzes how modern developments in the global economy affect the case for citizenship-based taxation. The Article concludes that recent globalization trends strengthen, rather than weaken, the case for taxing U.S. citizens living abroad. Moreover, it concludes that these modern developments weaken the case for giving preferential treatment to income earned by citizens working abroad.

Divided Infringement: Expanding the Extraterritorial Scope of Patent Law

Melissa Feeney Wasserman

Generally, in order to infringe a U.S. patent, the entire patented invention must be practiced within the United States. However, as technology evolves it is becoming harder to contain inventions within national borders. Specifically, the advancement of networking and communications technologies allows for the rapid, cost-efficient dissemination of information across countries’ borders. As a result, the number of inventions that are being practiced in multiple jurisdictions, or the practicing of divided infringement, is on the rise. Potential infringers that commit divided infringement are practicing patented inventions, escaping liability in all jurisdictions, but still reaping the rewards of the American market. Consequently, potential infringers who commit divided infringement are undercutting the incentive to innovate, the primary purpose of the patent system. To solve the problem of divided infringement, this Note proposes expanding the extraterritorial scope of U.S. patent law by adopting a substantial effects test, limited by comity concerns.

Providing Effective Remedies to Victims of Abuse by Peacekeeping Personnel

Catherine E. Sweetser

This Note argues for a compensation mechanism in cases where United Nations peacekeepers have violated the rights of those whom they should be protecting, focusing in particular on cases of sexual abuse. In light of the current absence of clear mechanisms for accountability, the United Nations must take action to compensate victims in order to preserve its organizational immunity and its discretion in waiving the immunity of peacekeepers. This Note examines the current legal regime and current responses by the United Nations, reviews the pressing need for greater victim compensation, and evaluates theories of employer liability and state responsibility as they apply in the peacekeeping context. It concludes that current international law supports a compensation mechanism that is normatively (if not legally) required.

Rethinking “Effective Remedies”: Remedial Deterrence in International Courts

Sonja B. Starr

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these “remedial deterrence” effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia—two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court’s particular objectives and constraints.

Although some degree of remedial deterrence is inevitable and legitimate, extreme remedial-cost pressures—like those often present in international criminal proceedings—result in severe doctrinal distortions that subvert the purpose of international courts’ strong remedial rules. Because victims cannot be granted lesser remedies, they often receive no remedy at all. This overkill effect is magnified because the doctrinal distortions spill over to other cases lacking similar remedial costs and to domestic courts and other actors that follow international judicial precedent, even though they do not share the same institutional constraints. To mitigate these consequences, this Article makes two sets of recommendations. First, international courts’ structures and procedures should be designed to avoid excessive remedial deterrence pressures. This Article offers specific proposals for international criminal tribunals. Second, international courts should modify their approach to the effective remedy requirement, allowing some degree of equitable balancing of interests. Such an approach would promote judicial candor and enable courts to avoid untenable remedial costs without unduly distorting other doctrines.