Search

Begin New Search Topic Law Political Geography United States of America

31. Communist Secret Police Unveil the Love of a Lifetime

Author:
Bob Baker
Publication Date:
01-2016
Content Type:
Journal Article
Journal:
American Diplomacy
Institution:
American Diplomacy
Abstract:
Supreme Court Justice Antonin Scalia came to address a national convention of Australian lawyers. I had requested a top constitutional lawyer and was delighted when Washington headquarters at the U.S. Information Agency in 1986 told me Justice Scalia would spend a week on the program I had suggested. He gave a brilliant exposition on the origins of the American Constitution at the big lawyers convention. His close interpretation of how the Constitution should be read in contemporary America was impressive. The several hundred lawyers loudly applauded his scholarly, but lively lecture.
Topic:
Diplomacy, Law, Supreme Court, and Memoir
Political Geography:
Australia, North America, and United States of America

32. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

33. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
Law, Prisons/Penal Systems, War on Terror, and Detention
Political Geography:
North America, United States of America, and Guantanamo

34. An Excerpt from the Upcoming Book - Borderless Wars: Civil-Military Disorder and Legal Uncertainty

Author:
Antonia Chayes
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
Fletcher Security Review
Institution:
The Fletcher School, Tufts University
Abstract:
Drones. Global data networks. The rise, and eventual primacy, of non-international armed conflict. All things the framers of the Geneva Conventions could have never fully conceived when doing their noble work in 1949; all things that rule warfare in the world today. So, how do we legally employ these new tools in these new circumstances? In her latest book, Antonia Chayes, former Under Secretary of the Air Force, explores the current legal underpinnings of counterinsurgency, counterterrorism, and cyber warfare, rooting out the ambiguities present within each realm, and telling the narrative of how these ambiguities have come to shape international security today. The grounded and creative solutions that she offers in terms of role definition and transparency will provide crucial guidance as the United States continues to navigate the murky modern military-legal landscape. This excerpt is a chapter from Borderless Wars: Civil-Military Disorder and Legal Uncertainty forthcoming in 2016 from Cambridge University Press.
Topic:
International Law, Counterinsurgency, Law, Military Affairs, Counter-terrorism, Drones, Conflict, Borders, and Law of Armed Conflict
Political Geography:
Afghanistan, Iraq, Global Focus, and United States of America

35. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
International Law, Immigration, Law, Guantanamo Bay, and Detainees
Political Geography:
North America and United States of America

36. Journal of Public and International Affairs 2014

Author:
Daphne McCurdy, Chikara Onda, Aaron Aitken, Lucia Adriana Baltazar Vazquez, John Paul Bumpus, John Speed Meyers, Pierina Ana Sanchez, Yolaine Frossard de Saugy, Melanie Harris, Steve Moilanen, Stephen Pritchard, Nicolas Collin dit de Montesson, and Naomi Crowther
Publication Date:
05-2014
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
From pressing foreign policy issues such as territorial disputes in the South China Sea and homicide rates in Honduras to contentious domestic policy debates such as the rights of Mexican immigrants in the United States and the construction of the Keystone pipeline, the topics in this year’s journal are wide-ranging in both functional and geographic focus. However, they all share a strong commitment to seeking solutions to the world’s most serious challenges through sound policy.
Topic:
Crime, Government, Oil, Poverty, Sovereignty, Bilateral Relations, Territorial Disputes, Foreign Aid, Immigration, Governance, Law, Cybersecurity, and Grand Strategy
Political Geography:
Africa, China, Iran, Canada, Philippines, Mexico, Honduras, United States of America, and South China Sea

37. Le Congrès des Etats-Unis : une assemblée incontrôlable ? (Is Congress out of Control ?)

Author:
François Vergniolle De Chantal
Publication Date:
12-2013
Content Type:
Special Report
Institution:
Centre d'Etudes et de Recherches Internationales (CERI)
Abstract:
The US Congres is the most powerful legislative in the world. Its independence and its powers make it impossible for the presidency to be truly imperial. The Senate is especially influential since it allows its members to use a series of minority procedures, such as the filibuster, that exert a constant a priori pressure on the Executive. This institutional configuration is made extremely costly by the current partisan polarization. It is also, however, a functional equivalent to the theoretical parliamentary right of life and death on Executive powers.
Topic:
Governance, Law, Political Science, and State
Political Geography:
North America and United States of America

38. EU Privacy Regulation: Implications for U.S. and EI Law Enforcement

Author:
Carlton Forbes and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In January 2012, the European Commission released drafts of two new pieces of legislation that would provide more stringent and more uniform regulation to the processing of electronic data relating to EU citizens. The proposed General Data Protection Regulation would govern the processing of data for general purposes, while the proposed Criminal Justice Directive would govern data processed in the specific context of criminal investigations. The Data Protection Regulation has proven controversial because of the significant number of requirements it imposes on private data processors, including requirements that the processor notify a consumer when her data is shared with a third party, and requirements that processors respect a number of new individual rights, such as the right of a consumer to request that her data be deleted (a.k.a. “the right to be forgotten”). Furthermore, the Regulation would mandate that many non-EU corporations would need to comply with its requirements when processing the data of EU citizens, or face harsh penalties. This memo summarizes the existing EU data protection regime, analyzes the changes proposed by the new Data Protection Regulation and Criminal Justice Directive, and explores the implications of this new legislation for U.S. criminal and national security investigations. We arrive at three main conclusions
Topic:
Law Enforcement, Law, European Union, Regulation, and Legal Theory
Political Geography:
Europe, North America, and United States of America

39. Internationally Protected Persons: The Status of Consular Employees

Author:
Ryan Liss
Publication Date:
01-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This memorandum considers whether consular employees and their family members constitute “internationally protected persons” (IPPs) under 18 U.S.C. § 112. In addition, the memorandum briefly considers whether an assault against the child of a consular employee abroad meets the jurisdictional nexus requirements of 18 U.S.C. § 112, such that the assault could be prosecuted in U.S. courts. It concludes that existing U.S. and foreign law and state practice do not provide a definitive definition of IPPs that either clearly includes or excludes consular employees. Moreover, the status of a consular employee’s child is similarly unclear, as the status of consular employees’ family members depends on that of the employee. However, while a definitive answer is not provided, the travaux preparatoires of the relevant treaties and one U.S. decision at least suggest that consular employees are excluded from the definition of IPPs. Part I explains that the applicable U.S. statutory provisions do not provide an exhaustive definition of who constitutes an IPP. The statute relies instead on the definition of IPPs at international law. In addition, there are no U.S. cases directly on point, so the existing case law does not foreclose the possibility that a consular employee might qualify as an IPP. However, the court’s logic in one case, United States v. Marcano-Garcia,2 which relied on the assault victim’s status as honorary consul under the Vienna Convention on Consular Relations in determining his IPP status, suggests that a consular employee would not fall within the definition. The exclusion of consular employees from the definition of IPPs is also arguably supported by the international treaties that 18 U.S.C. § 112 was drafted to implement, as well as those treaties’ travaux préparatoires. Part II looks to foreign and international law. There are indications in statements made via United Nations reporting processes that some states regard themselves as obligated to protect consular employees. But these statements are vague and are not supported by a similar trend in foreign domestic legislation or foreign case law. Part III shows that even if a consular employee and his or her child qualify as IPPs, the jurisdictional nexus under 18 U.S.C. § 112 must be met. For American courts to exercise jurisdiction in this case, the provision requires that the accused either be a U.S. national or be present on U.S. territory. Having concluded that the law does not support a definitive conclusion regarding whether a consular employee qualifies as an IPP, Part IV concludes by discussing policy considerations both in favor of and against extending such protection to consular employees.
Topic:
Law, Legal Theory, Protected People, and Diplomatic Immunity
Political Geography:
United States of America and North America

40. THE ROLE OF THE COMMITTEE TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

Author:
Chelsea Purvis
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report analyzes the role of the Committee to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). It provides an overview of the Committee’s mandate under CEDAW, finding that its mandate is similar to those of other human rights treaty bodies to which the United States reports. Like other human rights treaty bodies, the CEDAW Committee engages with States parties through a process of dialogue. It cannot consider complaints from individuals against states that have not ratified CEDAW’s Optional Protocol. The report then reviews the principle criticisms of the Committee by opponents of U.S. ratification of the Convention, exploring both the Committee’s most controversial recommendations and its contested legal authority. It discusses the contexts in which the Committee has made its most controversial recommendations and notes that each recommendation has had limited practical effect. The report explains that the CEDAW Committee does not have the legal authority to compel a State party to modify its law or values. If the United States were to ratify the Convention, the Committee’s findings and recommendations would have no direct binding legal authority under either domestic or international law. Finally, the report considers the effect that American participation might have on the Committee. U.S. ratification of CEDAW would allow the United States to contribute to the Committee’s process of dialogue. The United States has found engagement with other human rights treaty bodies productive, even though it does not consider recommendations made by human rights committees to be legally binding. U.S. ratification would also permit the United States to participate in the selection of Committee members, making it more likely that Committee recommendations would even more fully reflect U.S. standards.
Topic:
Gender Issues, Law, Women, and Discrimination
Political Geography:
United States of America and North America