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International Society—Consent and Custom as Sources of Law

Jason Ralph

in Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society

This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This ... More

This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.Less

Corporations and Human Rights

ANDREW CLAPHAM

in Human Rights Obligations of Non-State Actors

This chapter discusses various regimes that seek to cover the human rights obligations of corporations: the OECD Guidelines, the ILO Tripartite Declaration, the UN Global Compact, the Norms of the ... More

This chapter discusses various regimes that seek to cover the human rights obligations of corporations: the OECD Guidelines, the ILO Tripartite Declaration, the UN Global Compact, the Norms of the Sub-Commission, and the regime of international law in general. It examines in detail the Alien Tort Statute in the United States as it has been applied to corporations.Less

American Courts, Global Norms

Martin S. Flaherty

in Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs

This chapter considers a phenomenon that has consistently been among the most contentious of modern legal controversies—the application by American courts of international human rights. Recent years ... More

This chapter considers a phenomenon that has consistently been among the most contentious of modern legal controversies—the application by American courts of international human rights. Recent years have witnessed high-profile conflicts over international human rights law. One major battle involves whether, when, and how U.S. courts should recognize rights set out in the nation's treaty obligations. Another heated area of contention has arisen under an act of Congress, the Alien Tort Statute. Perhaps most heated of all have been debates over the use of foreign legal materials, including customary international law, to interpret the Constitution of the United States. In these areas as well, the Supreme Court, and the judiciary generally, has wavered. Yet once more, a fresh appreciation of the principles the Founders entrenched, the subsequent custom that on balance confirms that original vision, and the consequences of the way nations interact in a globalized age—all these imperatives point away from the path that the judiciary appears more and more to be considering, and back to the course first established.Less

Representation, Reproduction and Intention

Christopher Hutton

in Language, Meaning and the Law

This chapter looks at legal dilemmas in relation to representation, and the question of how and whether law is concerned with the intention of the person producing or circulating an image. It looks ... More

This chapter looks at legal dilemmas in relation to representation, and the question of how and whether law is concerned with the intention of the person producing or circulating an image. It looks at the case of a case of a T-shirt in Hong Kong which made reference to gangster culture, a counterfeit artist who made images or partial reproductions of currency, the idea of words and images that cause hurt or harm (and might be forbidden under a tort of racial insult), and the notion of speech as a form of social action. This can be hate speech on US campuses, the burning of the United States flag, swearing, pornography, etc. the key question is how law can and should allocate responsibility for meaning between the utterer and the utterer's presumed intention, the medium and the addressee, in cases where some taboo is breached.Less

The Human Dimension in Twenty-first Century Energy and Natural Resources Development: The New Law of ‘Public Rights’ in Private Development in the United States

Celia Campbell-Mohn

in Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources

This chapter addresses different methods of citizen participation in energy and natural resource projects. It traces the life of the project from siting on public lands, private lands, and tribal and ... More

This chapter addresses different methods of citizen participation in energy and natural resource projects. It traces the life of the project from siting on public lands, private lands, and tribal and Alaska lands, through operations, to closure. It discusses the various avenues of public participation throughout the life of the project. It sets a course through the maze of federal public-participation legislation by first analysing avenues of participation in project planning, siting, and development. It then discusses avenues of participation in project operations. It concludes with a note on the Alien Tort Claims Act.Less

Allocation of Risk and Tort Law

Rob Merkin and Jenny Steele

in Insurance and the Law of Obligations

Turns from contract to tort, exploring the significance of insurance in determining the existence and ambit of tort duties. Explains the perceived differences between contract and tort duties and ... More

Turns from contract to tort, exploring the significance of insurance in determining the existence and ambit of tort duties. Explains the perceived differences between contract and tort duties and explores the significance of party risk allocation arrangements, including insurance arrangements, in relation to tort. Explains that attention to insurance arrangements is not inconsistent with the idea of ‘duty’. Explores the role of insurance arrangements in relation to tort duties in a variety of cases, beginning with ‘contractual matrix’ cases including construction cases; then turning to cases of ‘advice’ between parties and other cases beyond the contractual matrix; to public authority liability; and to employers’ duties to employees. Explains how insurance issues, and particularly risk allocation issues, have influenced the most significant developments in the law relating to negligence duties in particular.Less

Offshoring Experiments, Outsourcing Public Health: Corporate Accountability and State Responsibility for Violating the International Prohibition on Nonconsensual Human Experimentation

Bethany Spielman

in The Globalization of Health Care: Legal and Ethical Issues

This chapter uses the Kano, Nigeria, pediatric trials of the oral antibiotic Trovan and the litigation it produced to explore the remedies available to individuals suing U.S.-based multinational ... More

This chapter uses the Kano, Nigeria, pediatric trials of the oral antibiotic Trovan and the litigation it produced to explore the remedies available to individuals suing U.S.-based multinational corporations and the foreign states that host their clinical drug trials. It concentrates on litigation under the Alien Tort Statute (ATS). In 2001 families of children with bacterial meningitis filed lawsuits against Pfizer in the United States under ATS for violating a norm of customary international law prohibiting nonconsensual medical experimentation. The allegation of nonconsensual medical experimentation on human subjects had stated a claim under the ATS for a violation of the law of nations. Litigation under the ATS may continue to be the only path through which pharmaceutical corporations will be held accountable for nonconsensual experimentation. It is noted that these corporations will continue outsourcing some experiments from the United States to relatively poor nations.Less

Meandering Jurisprudence and Unanticipated Legacies: The ICTY’s Reach into Domestic Civil Litigation

Mark Drumbl

in Legacies of the International Criminal Tribunal for the Former Yugoslavia: A Multidisciplinary Approach

Assessments of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) jurisprudential legacy tend to focus on the ICTY’s relationships with domestic criminal law. This chapter turns a ... More

Assessments of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) jurisprudential legacy tend to focus on the ICTY’s relationships with domestic criminal law. This chapter turns a new corner by examining the ICTY’s unexpected footprints in domestic civil litigation, specifically private tort claims brought in the US under the Alien Tort Statute (ATS, or Alien Tort Claims Act). Incorporation of international (including ICTY) materials in US ATS litigation remains a contested matter in which individual judges (both trial judges and appellate judges) demonstrate idiosyncratic behaviour. Some are ‘international law ignorers’, some are ‘international law enforcers’, some are ‘international law translators’, and some are ‘international law creators’. On this note, the ICTY’s legacy also touches upon broader questions of public international law and transnational legal migrations.Less

What’s the Rush?: Tort Laws and Elective Early-Term Births

Louise Marie Roth

in The Business of Birth: Malpractice and Maternity Care in the United States

This chapter analyzes changes over time in early-term births. Labor induction rates have risen over time and many experts speculate that at least half of inductions are elective. Popular accounts ... More

This chapter analyzes changes over time in early-term births. Labor induction rates have risen over time and many experts speculate that at least half of inductions are elective. Popular accounts suggest that pregnant women are driving this by requesting inductions. Healthcare providers are also part of the story because they can refuse women’s requests, but hospitals and OB/GYN practices benefit enormously from scheduling births even though they pose medical risks. Analyses of early-term births in low-risk pregnancies reveal that providers are more likely to take unnecessary risks in states with tort reforms that limit their liability risk. This effect was strongest during the period before 2009, when the strength of professional recommendations against early elective induction had eroded.Less

Tortured Prosecutions: Holding Private Military Contractors Accountable

Garrett Ordower

in Confronting Torture: Essays on the Ethics, Legality, History, and Psychology of Torture Today

This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but ... More

This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but little ability to hold them accountable. Exemplifying this is the difficulty that the U.S. faced in prosecuting Blackwater employees for their massacre of Iraqi civilians in Nisour Square in the course of providing security services for the U.S. State Department. Due to the lack of extraterritorial jurisdiction over the activities of many such contractors, the laws that apply to military personnel, such as the UCMJ and the MEJA, do not provide grounds for criminal or civil actions against contractors in many actual and possible circumstances. This chapter reviews the possibilities for using MEJA, SMTJ, ATS, UCMJ, the Anti-torture Statute, and foreign law against rogue or criminal contractors, and finds holes in the scope of each for securing justice. The chapter goes on to consider some recent proposals, such as the Civil Extraterritorial Jurisdiction Statute (CEJA) and extensions to existing law, to plug the gaps that make it difficult to prosecute or sue contractors for acts such as torture.Less

The Impact of the War Crimes Tribunals on Corporate Liability for Atrocity Crimes under US Law

David Scheffer

in Corporate Social Responsibility?: Human Rights in the New Global Economy

Federal courts resort to the jurisprudence of the international war crimes tribunals to interpret and enforce the Alien Tort Statute (ATS) against individuals and corporations. This practice ... More

Federal courts resort to the jurisprudence of the international war crimes tribunals to interpret and enforce the Alien Tort Statute (ATS) against individuals and corporations. This practice challenges skepticism of foreign sources of law as federal judges invoke tribunal rulings to define atrocity crimes in ATS litigation, understand aiding and abetting principles, and determine corporate liability under the ATS. The long history of the tribunals embracing elements of substantiality and knowledge in their determination of aiding and abetting should prevail over one countervailing tribunal appeals judgment. Although the Supreme Court restrained ATS liability for corporations under the presumption against extraterritoriality, corporate liability remains enforceable, as does aiding and abetting liability shaped by customary international law. The author posits that corporate executives may become more likely targets under the ATS and suggests that the crime of aggression, once activated before the International Criminal Court, may trigger more scrutiny of corporations under the ATS.Less

Sanction and Socialize: Military Command Responsibility and Corporate Accountability for Atrocities

Scott A. Gilmore

in Corporate Social Responsibility?: Human Rights in the New Global Economy

The CSR movement faces a dilemma between the penal code of sanctions and the honor code of self-regulation. To escape this binary, this Chapter draws lessons from the laws of war. Mitigating the ... More

The CSR movement faces a dilemma between the penal code of sanctions and the honor code of self-regulation. To escape this binary, this Chapter draws lessons from the laws of war. Mitigating the human rights impact of war and business are similar projects. Both graft humanitarian concerns onto hierarchical organizations whose missions seem contrary to human rights. But the laws of war offer a regulatory model: the doctrine of command responsibility. This regime fuses sanctions with socialization. It requires commanders to instill cultures of compliance, and it penalizes them for failing to prevent or punish human rights abuses committed by their subordinates. This Chapter argues that the CSR project should embrace corporate command responsibility to incentivize industry self-regulation.Less

“In Violation of the Law of Nations”: The Romero Assassination Comes to the United States

Matt Eisenbrandt

in Assassination of a Saint: The Plot to Murder Óscar Romero and the Quest to Bring His Killers to Justice

In 2001, a man working with the Center for Justice & Accountability (CJA) saw Alvaro Saravia in a lawyer’s office in San Francisco, California, and recognized him as one of Romero’s killers. CJA ... More

In 2001, a man working with the Center for Justice & Accountability (CJA) saw Alvaro Saravia in a lawyer’s office in San Francisco, California, and recognized him as one of Romero’s killers. CJA plays a role in the international justice movement that seeks to hold accountable those who commit atrocities, and CJA has a focus on bring U.S. cases under the Alien Tort Statute. This chapter describes the history of U.S. litigation using the Alien Tort Statute and the rise of CJA as an important human rights organization with a specific focus on cases involving El Salvador. The chapter concludes with CJA’s trip to search for Saravia near his home in Modesto, California.Less

The trade unions and legal services

Kate Bradley

in Lawyers for the Poor: Legal Advice, Voluntary Action and Citizenship in England, 1890-1990

Members of trade unions could also access legal advice and support through the mutual aid provision of their union. This emerged through the growth of tort law in the nineteenth century, and the ... More

Members of trade unions could also access legal advice and support through the mutual aid provision of their union. This emerged through the growth of tort law in the nineteenth century, and the unions’ desire to ensure that workers received acceptable treatment in line with the law. As this chapter shows, the Trades Union Congress were highly concerned about the development of the Legal Aid and Advice Act 1949, and how it would impact on union legal provision to members. Until the 1960s, the TUC were a major influence on the development of legal aid and advice provision. Trade union records are also used in this chapter to show how and why members made use of union legal services.Less

International Law in Domestic Courts: ATS Litigation and Climate Change

in The Perils of Global Legalism

For global legalists, the ideal dispute-resolution mechanism for international law violations is the international tribunal; but in practice, the most exciting international litigation is taking ... More

For global legalists, the ideal dispute-resolution mechanism for international law violations is the international tribunal; but in practice, the most exciting international litigation is taking place in U.S. domestic courts. This paradox reflects the basic tensions of global legalism: law without government exists at the international level, law normally requires courts to interpret and enforce it, effective courts cannot exist without supporting government institutions, no such institutions exist at the international level. In the absence of effective international courts, the next best thing is the domestic court, which can at least apply the law and enforce it—and maybe advance it. Alien Tort Statute litigation embodies the paradoxes of global legalism. This chapter explores the legalistic response to the most challenging global problem of our time: climate change. It discusses the different categories of domestic litigation in the United States, including nuisance and environmental litigation, and considers litigation in international courts.Less

Law Governing Tort Conflicts

Symeon C. Symeonides

in Codifying Choice of Law Around the World: An International Comparative Analysis

This chapter focuses on choice of law in tort conflicts. The chapter documents that, although all but one codifications retain the old rule of lex loci delicti (applying the law of the place of the ... More

This chapter focuses on choice of law in tort conflicts. The chapter documents that, although all but one codifications retain the old rule of lex loci delicti (applying the law of the place of the tort), virtually all of them have introduced exceptions to it, such as common-domicile, closer-connection, favor laesi, double-actionability, and “conduct and safety”. The chapter compares these exceptions and the results they produce with the results reached by American courts since the choice-of-law revolution, which coincidentally also began 50 years ago.Less

Actions on the case for deceit

John Baker

in Baker and Milsom Sources of English Legal History: Private Law to 1750

This chapter is concerned with the action on the case for deceit, chiefly in the context of false warranties made by sellers of goods. The availability of the action was at first contested on the ... More

This chapter is concerned with the action on the case for deceit, chiefly in the context of false warranties made by sellers of goods. The availability of the action was at first contested on the ground that a warranty was a covenant, and therefore required written evidence, or perhaps a writ of covenant. But it became well established before 1400, and the next difficult question was how to distinguish a warranty, for this purpose, from a misdescription. The general principle was ‘caveat emptor’, but this did not apply in the case of food and drink or in cases where a buyer was unable to ascertain the facts for himself. A major debate in 1606 over the sale of a stone misdescribed as a ‘bezoar’ confirmed that, in the absence of a warranty (or guarantee) at the time of sale, the buyer of a misdescribed object had no legal redress.Less