Texas international law journal最新文献

{"title":"Deadly Ambiguity: IHL's Prohibition on Targeting Civilian Objects and the Risks of Decentered Interpretation","authors":"Emily Chertoff, Zachary Manfredi","doi":"10.2139/SSRN.2997274","DOIUrl":"https://doi.org/10.2139/SSRN.2997274","url":null,"abstract":"The United States claims the legal authority to target the “war-sustaining capabilities” of its enemies in armed conflict — a fact that has become particularly salient with the recent bombing of Islamic State cash stockpiles and oil fields in Iraq. This category potentially includes targets many commentators and states traditionally view as protected civilian objects, such as oil fields, economic infrastructure, and agricultural facilities, all critical to preserving life and livelihood in conflict zones. Recent publications by U.S. military and diplomatic agencies have called renewed attention to the debate about the legitimacy of targeting war-sustaining activities by articulating a broad interpretation of Article 52 of Additional Protocol I of the Geneva Conventions, which codifies the prohibition in international humanitarian law (IHL) on targeting civilian objects. If taken to its logical conclusion, the U.S. position risks undermining core IHL principles of proportionality, distinction, and humanity. The U.S. position highlights the difficulty of applying certain rules of IHL — like the laws on targeting — in a select set of ambiguous limit cases for which the governing law presents insufficient guidance. We identify two sets of forces that place particular strain on IHL, and that we believe contributed to the U.S. interpretation of the military-object targeting rule. First, the asymmetric character of conflicts with non-state actors creates an increased likelihood of IHL violations by both sides to a conflict, and puts pressure on state actors to broadly interpret the rules of IHL as an alternative to violating the law. A perception that non-state actors do not themselves obey IHL adds to this pressure. Second, limited opportunities to bring disputes about IHL into courts for authoritative, centralized review leads to a phenomenon we call “decentered interpretation,” where every state develops its own interpretation of IHL in some degree of isolation. The heavy weight given to the state practice of certain militarily powerful states exacerbates the distortions created by decentered interpretation. Without measures to address these two sets of forces, states risk undermining the content of the IHL rules they purport to interpret. We conclude by proposing improvements to current collective processes for reaching international consensus on the fine-grained content of ambiguous IHL rules.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"71 1","pages":"239"},"PeriodicalIF":0.0,"publicationDate":"2017-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89938068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Foreign Economic Assistance and Respect for Civil and Political Rights: Chile-A Case Study *","authors":"A. Cassese","doi":"10.1093/acprof:oso/9780199232918.003.0017","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199232918.003.0017","url":null,"abstract":"I. INTRODUCTIONThe question of whether foreign economic assistance to states grossly disregarding human rights has an impact on the enjoyment of civil and political rights in those states is undoubtedly very complex. The nexus between economic assistance and human rights is often indirect and subtle. In addition, there arises the thorny question of evidence: Upon what elements can one show the multifaceted yet elusive nexus between foreign economic aid and various forms of human rights that on the surface appear to have few economic implications?Without attempting to address all problems that fall within the purview of the subject-matter, I have limited the discussion to five questions that appear crucial:1) Have human rights violations within a state discouraged governments, international agencies, or private institutions from sending economic assistance to that state?2) Might a state's human rights violations actually attract foreign economic assistance in some situations?3) Have restrictions on civil and political rights caused inefficiencies in or had an adverse consequence on the utilization of foreign economic aid?4) Do the benefits of foreign economic assistance reach those persons who have been victims of human rights violations, particularly the families of persons arbitrarily detained or imprisoned?5) To what extent has foreign economic assistance supported the recipient state's social and economic policies which have an adverse impact on the enjoyment of civil and political rights?II. A CASE STUDY: CHILEThis article will briefly address these five questions specifically in regards to Chile. The reasons for this choice stem from the fact that there is sufficient documentation available, both from the Chilean authorities and from the United Nations, to analyze the relationship between foreign economic assistance and civil and political rights in that nation.This analysis assumes that the various pronouncements of the U.N. General Assembly regarding Chile's poor human rights record are indeed correct.A. Violations of Civil and Political Rights in Chile and the Withholding of Foreign Economic AssistanceThe first of the five questions referred to above can be broached on the basis of replies of various governments to information requests sent in 1977 by the SecretaryGeneral of the United Nations1 and by the Rapporteur on Chile of the SubCommission on Prevention of Discrimination and Protection of Minorities.2 Reference is made here only to the official comments of a few Western governments concerning their economic relations with Chile since the military golpe de estado of September 11,1973.In its reply to the Secretary-General's information request, the Federal Republic of Germany stated that as a consequence of the disregard for human rights in Chile, \"[T]he Federal Government has not provided Chile with any more development aid. It has discontinued supplies of weapons and military equipment. In negotiations for the rescheduling of debts,","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"39 1-2 1","pages":"647"},"PeriodicalIF":0.0,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78341779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Murky Waters: Ambiguous International Law for Ocean Fertilization and Other Geoengineering","authors":"Grant Wilson","doi":"10.2139/SSRN.2312755","DOIUrl":"https://doi.org/10.2139/SSRN.2312755","url":null,"abstract":"In July 2012, the Haida Salmon Restoration Corporation (HSRC) dumped about 100 tons of iron sulfate into the Pacific Ocean some 200 nautical miles west of Haida Gwaii in British Columbia, Canada. While nominally for restoring depleted salmon stocks, HSRC’s ocean fertilization also served as a geoengineering experiment. This paper first looks at ocean fertilization in the context of global catastrophic risk (GCR) — both as a method to mitigate potentially catastrophic climate change and as a major risk itself with unknown environmental effects. The paper then analyzes the HSRC’s ocean fertilization activities under the London Convention and London Protocol, which regulate dumping at sea, concluding that Canada was probably (but not certainly) required to enact and enforce laws to restrict ocean fertilization. Whether Canada met this burden requires more facts than are publicly available, although Canada’s monitoring of geoengineering and enforcement of relevant laws was clearly suboptimal. The paper then discusses some of the GCR themes relating to the HSRC’s ocean fertilization, such as the importance of monitoring and reporting activities by rogue actors and lessons learned for governing other types of geoengineering, such as aerosol injection. Finally, in light of the ambiguities of the London Convention and London Protocol as they apply to ocean fertilization and other marine threats with unknown effects (such as chemical dispersants), and considering the need to regulate geoengineering more broadly, this paper makes recommendations on how the international community can continue to develop geoengineering governance.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"48 1","pages":"507"},"PeriodicalIF":0.0,"publicationDate":"2013-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91177919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond Ruggie’s Guiding Principles on Business and Human Rights: Charting an Embracive Approach to Corporate Human Rights Compliance","authors":"Robert C. Blitt","doi":"10.2139/SSRN.1907778","DOIUrl":"https://doi.org/10.2139/SSRN.1907778","url":null,"abstract":"To what extent should or must a corporation contemplate international human rights law? Following a brief discussion of the increasing influence of transnational corporations and global business transactions, as well as the growth of the international human rights system, this Article uses the 2011 United Nations’ Guiding Principles on the effective prevention of, and remedy for, business-related human rights harm as a jumping-off point for addressing the most recent developments related to identifying and regulating business-related human rights practices. After identifying an emerging divide between endorsement and criticism of the Guiding Principles, the Article concludes with a forward-looking view, arguing that although the Guiding Principles may represent a good starting point, corporations genuinely concerned with ensuring the effective minimization or elimination of exposure to potentially embarrassing and costly human rights liabilities should be prepared to apply a more rigorous approach.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78074587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Integration of NAFTA through Supranational Adjudication","authors":"J. L. Westbrook","doi":"10.1057/9781137269508_5","DOIUrl":"https://doi.org/10.1057/9781137269508_5","url":null,"abstract":"","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"21 1","pages":"79-88"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81423399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Critical Observations on the Draft Transnational Rules of Civil Procedure","authors":"G. Born","doi":"10.2139/SSRN.1959833","DOIUrl":"https://doi.org/10.2139/SSRN.1959833","url":null,"abstract":"This article examines the draft \"Transnational Rules of Civil Procedure.\" It argues that the draft Rules suffer from significant shortcomings and should not be adopted. Among other things, the draft Rules are biased against local litigants, in favour of international litigants, and unjustifiably treat similarly-situated litigants in disparate ways.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"1 1","pages":"387"},"PeriodicalIF":0.0,"publicationDate":"2011-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88619643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Determining a Legitimate Target: The Dilemma of the Decision Maker","authors":"A. Guiora","doi":"10.2139/SSRN.1905130","DOIUrl":"https://doi.org/10.2139/SSRN.1905130","url":null,"abstract":"Nation states are under attack by non-state actors; whether non-state actors present an existential threat to nation states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counter terrorism measures. That, in a nutshell, is the state of the world post 9-11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation state.This reality has forced decision makers to address terrorism and terrorists literally ‘on the fly’. In retrospect, Tuesday morning September 11, 2001 not only caught world leaders by surprise, most were unprepared and untrained to respond in a sophisticated and strategic manner. In the US, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention and unauthorized wiretapping. The executive branch in the US chose a path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing.While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin - “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” - were largely ignored in the aftermath of 9/11. The ten year anniversary of 9/11 serves as a useful benchmark for looking back to gauge what measures have been implemented, to what degrees of effectiveness, and at what cost. The anniversary additionally serves as a useful benchmark for looking forward and addressing how to develop, articulate and implement changes to existing counterterrorism strategy. This article will not offer a broad retrospective of post 9/11 decisions; rather, the article will focus on the definition of legitimate target.Discussion regarding the AMW manual is particularly relevant to the question of legitimate target. After all, air and missile warfare is directly related to the legitimate target dilemma. Any analysis of air and missile warfare must include discussion regarding defining a legitimate target and then, subsequently, determining when the individual defined as legitimate is, indeed, legitimate. In that context, the link between legitimate target and AMW is inexorable. Two central questions with respect to operational counterterrorism are who can be targeted and for when is the identified legitimate target a legitimate target. Those two questions go to the heart both of self defense and the use of power. In a counterterrorism regime subject to the rule of law, use of power is neither unlimited nor unrestrained. Regimes subject neither to external or internal restraints may engage in ma","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"31 1","pages":"315"},"PeriodicalIF":0.0,"publicationDate":"2011-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80132083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Solitude of Latin America: The Struggle for Rights South of the Border","authors":"Á. Oquendo","doi":"10.2139/SSRN.2309901","DOIUrl":"https://doi.org/10.2139/SSRN.2309901","url":null,"abstract":"The article focuses, comparatively, on remarkable recent developments in Latin America regarding the programmatic adjudication, procedural enforcement, and internationalization of fundamental entitlements. It applauds, first, the manner in which many Latin American courts have uncompromisingly enforced positive guaranties in the last decade or so. Secondly, it analyzes various widely available procedures for the vindication of rights, including the writ of protection or security, unconstitutionality actions, and collective suits. Thirdly, it studies the manner in which the interaction between domestic and transnational rights has become extremely intense in the region. Finally, it notes the tension between the realization of the juridical precept and the sporadic precariousness of the rule of law and contends that, beyond adopting new measures or punishing violators more severely, Latin American countries must generally enhance the legitimacy of legal norms by renewing their commitment to democracy, as well as to other ideals, such as the rule of law itself, personal freedom, and (above all) solidarity.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"21 1","pages":"185"},"PeriodicalIF":0.0,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73349051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Property Rights, Collateral, Creditor Rights, and Insolvency in East Asia","authors":"D. Arner, Charles D. Booth, P. Lejot, B. Hsu","doi":"10.4324/9781315095585-3","DOIUrl":"https://doi.org/10.4324/9781315095585-3","url":null,"abstract":"This article examines the relationships within East Asia between economic development, governance, property rights, provisions for the deployment of collateral and the creation of secured financial transactions, and creditor rights and their relationship with insolvency. No sophisticated market economy or market-based financial system can exist without these prerequisites, regardless of indigenous or acquired national characteristics or the form manifested by that system. However, in no national case in East Asia can the legal, regulatory, or policy background be described as either complete or fully integrated.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"90 1","pages":"515"},"PeriodicalIF":0.0,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73925560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Interpreting Foreign Law Through an Erie Lens: A Critical Look at United States v. McNab","authors":"Doug Keller","doi":"10.2139/SSRN.1556680","DOIUrl":"https://doi.org/10.2139/SSRN.1556680","url":null,"abstract":"This article uses United States v. McNab as a case study on what sort of framework federal courts should use when they must determine the law of a foreign country. In McNab, the Eleventh Circuit upheld the conviction of four defendants for violating a U.S. law that made it illegal to violate the law of another country when importing wildlife or fish from that country. This, despite the fact that one of the Honduran laws that the U.S. conviction rested upon had been declared unconstitutional under the Honduran Constitution by the Honduran court system before the Eleventh Circuit had reviewed the district court’s determination of the validity of the Honduran law. This article argues that the Eleventh Circuit reached the wrong result because it misapprehended its duty to interpret foreign law. In the 1960s, changes to the federal procedural rules required federal courts to stop treating foreign law as a question of fact. It was instead to be treated as a question of law, just like domestic law. This article argues that this requirement means that federal courts should interpret the law of a foreign country just like they interpret state law—i.e., using the Erie framework. That framework, broadly speaking, requires federal courts to follow what they surmise the state’s highest court would say the law is in that particular case since the state high court is the final arbiter on the meaning of state law. Moreover, if the federal district court guesses one way, but the state’s court system finally deals with the legal issue and rules another way before the case reaches the federal appellate court, the federal appellate court is to reverse the district court’s determination because the lower court guessed wrong. Applying that framework to McNab reveals that the Eleventh Circuit reached the wrong conclusion. The district court in McNab had made the Erie guess that the Honduran law was constitutional. Before the Eleventh Circuit reviewed that decision, the foreign court had determined that the law was unconstitutional. Thus, the Eleventh Circuit should have reversed the district court, since its Erie guess turned out to be incorrect.","PeriodicalId":82900,"journal":{"name":"Texas international law journal","volume":"182 1","pages":"157"},"PeriodicalIF":0.0,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74878278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}