Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0002
- Subject:
- Political Science, International Relations and Politics
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 ...
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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
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.
Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.001.0001
- Subject:
- Law, Law of Obligations
Aims to fill a significant gap in the general understanding of the law of obligations, by focusing on the place of insurance within it. Argues that the majority of academic obligations lawyers have ...
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Aims to fill a significant gap in the general understanding of the law of obligations, by focusing on the place of insurance within it. Argues that the majority of academic obligations lawyers have little knowledge of insurance law in its own right, and that the amount of discussion directed to insurance is disproportionately tiny in relation to the impact of insurance and insurance law on the law of obligations and more broadly. Seeks to address this lack of coverage by exploring the multiple influences of insurance in the law of obligations, and the nature and impact of insurance law as an inherent and significant aspect of private law. Combines conceptual and doctrinal analysis in order to inform and engage, while also making a distinctive contribution to broader discussion about the nature of private law, including the role of judicial and public purpose; and the place of formalism and of contextualism. Argues for wider recognition of the multiple impacts of insurance, and suggests that such recognition will have a number of important implications for obligations lawyers. In particular, suggests that recognition of the presence of insurance necessarily marks a departure from the two-party framework sometimes described as definitive of private law. Provides a structured exploration and interpretation of the contemporary role of insurance in the law of obligations, and of its implications, equipping its readers for further enquiry and debate.Less
Aims to fill a significant gap in the general understanding of the law of obligations, by focusing on the place of insurance within it. Argues that the majority of academic obligations lawyers have little knowledge of insurance law in its own right, and that the amount of discussion directed to insurance is disproportionately tiny in relation to the impact of insurance and insurance law on the law of obligations and more broadly. Seeks to address this lack of coverage by exploring the multiple influences of insurance in the law of obligations, and the nature and impact of insurance law as an inherent and significant aspect of private law. Combines conceptual and doctrinal analysis in order to inform and engage, while also making a distinctive contribution to broader discussion about the nature of private law, including the role of judicial and public purpose; and the place of formalism and of contextualism. Argues for wider recognition of the multiple impacts of insurance, and suggests that such recognition will have a number of important implications for obligations lawyers. In particular, suggests that recognition of the presence of insurance necessarily marks a departure from the two-party framework sometimes described as definitive of private law. Provides a structured exploration and interpretation of the contemporary role of insurance in the law of obligations, and of its implications, equipping its readers for further enquiry and debate.
ANDREW CLAPHAM
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199288465
- eISBN:
- 9780191707681
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199288465.003.0007
- Subject:
- Law, Human Rights and Immigration
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 ...
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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
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.
Martin S. Flaherty
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9780691179124
- eISBN:
- 9780691186122
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691179124.003.0011
- Subject:
- Political Science, International Relations and Politics
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 ...
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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
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.
Christopher Hutton
- Published in print:
- 2009
- Published Online:
- September 2012
- ISBN:
- 9780748633500
- eISBN:
- 9780748671489
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748633500.003.0007
- Subject:
- Linguistics, Applied Linguistics and Pedagogy
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 ...
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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
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.
Richard S. Newman
- Published in print:
- 2016
- Published Online:
- November 2020
- ISBN:
- 9780195374834
- eISBN:
- 9780197562673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780195374834.003.0017
- Subject:
- Environmental Science, Pollution and Threats to the Environment
As yet another summer approached with little prospect of change, Love Canal residents took more risks to get out of their toxic environment. On May 19, ...
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As yet another summer approached with little prospect of change, Love Canal residents took more risks to get out of their toxic environment. On May 19, 1980, the LCHA detained two EPA representatives visiting the group’s headquarters. Residents were angered by the results of a much debated genetic test showing that roughly one-third of the thirty-six people sampled may have suffered chromosome damage (a possible indicator of future illness). Angry and confused, residents gathered en masse at the group’s headquarters. Spilling fuel on the lawn, they lit a fire that read “EPA.” Hoping to quell rising discontent, the EPA officials drove over to meet with Love Canal families. When they arrived, however, the two men were told “they couldn’t leave.” While Gibbs explained that she was protecting the men from the chaos outside, others proclaimed that they would be held until the federal government vowed to evacuate all area residents. “If we won’t be relocated, keep them here,” one activist remembered someone shouting. The scene grew increasingly tense. A crowd of residents, some holding two-by-fours, stood guard as police officers arrived. On the phone, Gibbs explained residents’ demands to politicians in Washington. “We’ll keep them fed, we’ll keep them happy,” she also told reporters. But the LCHA would not release the men. The drama ended a few hours later when the FBI phoned LCHA headquarters, darkly warning that agents would storm the home if the hostages were not freed in “six minutes.” The EPA representatives were let go—one thanked residents for serving delicious oatmeal cookies—while LCHA activists were put inside a police car, driven around the corner, and then released. That same month, LCHA figures engaged in a sit-in at the county legislature. The demonstration came after county politicians vetoed a novel plan to “revitalize” parts of Love Canal, including the possible purchase of outer-ring homes.
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As yet another summer approached with little prospect of change, Love Canal residents took more risks to get out of their toxic environment. On May 19, 1980, the LCHA detained two EPA representatives visiting the group’s headquarters. Residents were angered by the results of a much debated genetic test showing that roughly one-third of the thirty-six people sampled may have suffered chromosome damage (a possible indicator of future illness). Angry and confused, residents gathered en masse at the group’s headquarters. Spilling fuel on the lawn, they lit a fire that read “EPA.” Hoping to quell rising discontent, the EPA officials drove over to meet with Love Canal families. When they arrived, however, the two men were told “they couldn’t leave.” While Gibbs explained that she was protecting the men from the chaos outside, others proclaimed that they would be held until the federal government vowed to evacuate all area residents. “If we won’t be relocated, keep them here,” one activist remembered someone shouting. The scene grew increasingly tense. A crowd of residents, some holding two-by-fours, stood guard as police officers arrived. On the phone, Gibbs explained residents’ demands to politicians in Washington. “We’ll keep them fed, we’ll keep them happy,” she also told reporters. But the LCHA would not release the men. The drama ended a few hours later when the FBI phoned LCHA headquarters, darkly warning that agents would storm the home if the hostages were not freed in “six minutes.” The EPA representatives were let go—one thanked residents for serving delicious oatmeal cookies—while LCHA activists were put inside a police car, driven around the corner, and then released. That same month, LCHA figures engaged in a sit-in at the county legislature. The demonstration came after county politicians vetoed a novel plan to “revitalize” parts of Love Canal, including the possible purchase of outer-ring homes.
Celia Campbell-Mohn
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780199253784
- eISBN:
- 9780191698163
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199253784.003.0008
- Subject:
- Law, Human Rights and Immigration
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 ...
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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
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.
Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.003.0008
- Subject:
- Law, 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 ...
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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
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.
Bethany Spielman
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199917907
- eISBN:
- 9780199332878
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199917907.003.0016
- Subject:
- Law, Medical Law
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 ...
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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
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.
Mark Drumbl
- Published in print:
- 2020
- Published Online:
- July 2020
- ISBN:
- 9780198862956
- eISBN:
- 9780191895531
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198862956.003.0009
- Subject:
- Law, Public International Law
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 ...
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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
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.
Garrett Ordower
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226529387
- eISBN:
- 9780226529554
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226529554.003.0015
- Subject:
- Law, Human Rights and Immigration
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 ...
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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
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.
David Scheffer
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780226244273
- eISBN:
- 9780226244440
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226244440.003.0007
- Subject:
- Anthropology, Anthropology, Global
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 ...
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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
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.
Scott A. Gilmore
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780226244273
- eISBN:
- 9780226244440
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226244440.003.0008
- Subject:
- Anthropology, Anthropology, Global
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 ...
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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
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.
Matt Eisenbrandt
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780520286795
- eISBN:
- 9780520961890
- Item type:
- chapter
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520286795.003.0002
- Subject:
- History, Latin American History
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 ...
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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
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.
Kate Bradley
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9781526136053
- eISBN:
- 9781526150394
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7765/9781526136077.00011
- Subject:
- History, Social History
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 ...
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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
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.
- Published in print:
- 2009
- Published Online:
- March 2013
- ISBN:
- 9780226675749
- eISBN:
- 9780226675923
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226675923.003.0009
- Subject:
- Law, Public International Law
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 ...
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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
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.
Symeon C. Symeonides
- Published in print:
- 2014
- Published Online:
- June 2014
- ISBN:
- 9780199360840
- eISBN:
- 9780199377688
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199360840.003.0002
- Subject:
- Law, Private International Law, Comparative Law
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 ...
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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
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.
John Baker
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780198847809
- eISBN:
- 9780191882456
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198847809.003.0020
- Subject:
- Law, Legal History
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 ...
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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
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.
Curtis A. Bradley
- Published in print:
- 2015
- Published Online:
- April 2015
- ISBN:
- 9780190217761
- eISBN:
- 9780190217808
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190217761.001.0001
- Subject:
- Law, Private International Law, Comparative Law
This book provides an overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. The book ...
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This book provides an overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. The book covers all of the principal forms of international law: treaties, decisions and orders of international institutions, customary international law, and jus cogens norms. It also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as the use of “executive agreements” in lieu of treaties, foreign sovereign immunity, international human rights litigation under the Alien Tort Statute, war powers, extradition, international criminal prosecution, and extraterritoriality. The book highlights recent decisions and events relating to the topic (including decisions and events arising out of the war on terrorism), while also taking into account relevant historical materials, including materials relating both to the U.S. constitutional founding and to long-standing practices of Congress and the executive branch.Less
This book provides an overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. The book covers all of the principal forms of international law: treaties, decisions and orders of international institutions, customary international law, and jus cogens norms. It also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as the use of “executive agreements” in lieu of treaties, foreign sovereign immunity, international human rights litigation under the Alien Tort Statute, war powers, extradition, international criminal prosecution, and extraterritoriality. The book highlights recent decisions and events relating to the topic (including decisions and events arising out of the war on terrorism), while also taking into account relevant historical materials, including materials relating both to the U.S. constitutional founding and to long-standing practices of Congress and the executive branch.
John G. Dale
- Published in print:
- 2011
- Published Online:
- August 2015
- ISBN:
- 9780816646463
- eISBN:
- 9781452945897
- Item type:
- chapter
- Publisher:
- University of Minnesota Press
- DOI:
- 10.5749/minnesota/9780816646463.003.0006
- Subject:
- Sociology, Social Movements and Social Change
This chapter focuses on the campaign to hold Unocal liable, within the U.S. jurisdiction, for various alleged human rights abuses committed by their business partners for the purpose of completing ...
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This chapter focuses on the campaign to hold Unocal liable, within the U.S. jurisdiction, for various alleged human rights abuses committed by their business partners for the purpose of completing the gas pipeline project in Burma. In 1996, a dozen Burmese ethnic-minority peasants sued the Unocal Corporation in a U.S. court in a case titled Doe v. Unocal; the suit was filed under the U.S. Alien Tort Claims Act (ATCA). The judicial struggle of this case represents a stunning achievement for the Free Burma Movement, as the settlement was a victory for the plaintiffs. This led to more than a dozen similar suits filed against other corporations on the model of the transnational legal strategy used in the Unocal case.Less
This chapter focuses on the campaign to hold Unocal liable, within the U.S. jurisdiction, for various alleged human rights abuses committed by their business partners for the purpose of completing the gas pipeline project in Burma. In 1996, a dozen Burmese ethnic-minority peasants sued the Unocal Corporation in a U.S. court in a case titled Doe v. Unocal; the suit was filed under the U.S. Alien Tort Claims Act (ATCA). The judicial struggle of this case represents a stunning achievement for the Free Burma Movement, as the settlement was a victory for the plaintiffs. This led to more than a dozen similar suits filed against other corporations on the model of the transnational legal strategy used in the Unocal case.