International Law Scholarship
Pacific McGeorge faculty members continue to challenge conventional boundaries with provocative scholarship on international topics. Their recent topics range from:
In The Emergence of International Property Law, 90 N.C. L. REV. 461 (2012), John Sprankling argues that title to deep seabed minerals, ownership of cultural objects, transferable allowances to emit greenhouse gases, security interests in spacecraft, and rights of indigenous peoples in ancestral lands are all components of a new field: international property law. Specifically, Professor Sprankling points out that while scholars have traditionally viewed property law solely as a national concern, identifiable principles of property law have appeared at the international level, particularly in recent years, and the time has come to recognize it as a distinct field.
In Quo Vadis WTO? The Threat of TRIPS and the Biodiversity Convention to Human Health and Food Security, 30 B.U. INT'L L.J. 55 (2012), Kojo Yelpaala challenges the accepted linkage between admission to the WTO free trade regime and agreement to the stringent intellectual property protection of TRIPS. Professor Yelpaala shows how the intellectual property protections mandated by TRIPS have resulted in human suffering in the developing world, and particularly Africa. At same time, looking at empirical evidence and interdisciplinary sources, Yelpaala undermines the conventional wisdom that such protection is necessary for invention.
...from examining the fundamental nature of international law
In Contractualism in the Law of Treaties, 34 MICH. J. INT'L L. 1 (2012), Omar Dajani examines the question of whether rules of international law are mandatory or whether nations can agree to contrary rules. Working from the freedom of contract debate in domestic law, Professor Dejani asks what limits international law imposes on the terms to which nations can agree when entering into a treaty. His article points out the paradox that exists in the current doctrine recognizing certain mandatory norms not subject to contrary treaty provisions and the lack of a procedural mechanism for challenging treaties containing such provisions.
...to protecting human rights through individual accountability
In Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies, 6 J. NAT'L SECURITY L. & POL'Y 291 (2012), Linda Carter focuses on the impact of varying definitions of mens rea in the definition of torture, with a particular comparison of the jurisprudence of the United States with the International Criminal Tribunal for the former Yugoslavia (ICTY). Professor Carter points out how these differences in definition lead to different results in what is and what is not torture which, in turn, leads to accountability and international relations problems.
...or government accountability
In Human Rights and Unintended Consequences: Empirical Analysis of International Economic Sanctions in Contemporary Practice, 31 B. U. INT'L L.J. 75 (2013), Michael Malloy brings empirical and statistical analysis to bear on the use of international economic sanctions in response to pervasive human rights violations in the former Southern Rhodesia (and now in Zimbabwe itself), South Africa, Myanmar, and Belarus. In analyzing these situations, Professor Malloy argues that, while metrics for evaluation of the effectiveness of sanctions programs remain elusive, empirical analysis of instrumental effects suggests that the design and content of foreign policy-based programs often lead to more significant effects on the target group or state, at least in the short run, than is the case with respect to human rights-based programs.
...from governments that cannot pay their bills
In Negotiating in a Ditch: Institutional Implications of the Sovereign Debt Crisis, 28 CONN. J. INT'L L. 1 (2012), Michael Malloy argues that implementation of a reformed international capital adequacy regime ("Basel III") and the application of U.S. limitations on proprietary trading by banks ("Volcker Rule") have been rendered hostages to the sovereign debt crisis. Professor Malloy concludes that officials responsible for these two initiatives should detach them from the crisis, because the merits of each are greater than any concern with crisis management.
...to taxes on those leaving the nation
In The Exit Tax: A Move in the Right Direction, 3 WM. & MARY BUS. L. REV. 341 (2012), Christine Manolakas follows the history and evolution of I.R.C. section 877, the alternative tax regime, and the politics of its replacement, I.R.C. section 877A, which imposes a mark-to-market regime (an exit tax) on U.S. citizens and long-term residents expatriating after June 2008. This article provides a close examination of the federal income tax and the estate and gift tax consequences of expatriation under both regimes.
...from comparing different systems for trying the accused
In her book, INTERNATIONAL CRIMINAL PROCEDURE: THE INTERFACE OF CIVIL LAW AND COMMON LAW LEGAL SYSTEMS (Edward Elgar 2013) (with F. Pocar, eds.), Linda Carter takes a comparative law approach to international criminal procedure. Recognizing that international criminal courts follow an amalgam of procedures from civil and common law legal systems, the book evaluates specific procedures based on an understanding of the foundational differences between civil and common law systems. The procedures include right to counsel, witness proofing, victim participation, written and oral evidence, plea bargaining, and appeals.
...to examining Chinese homicide law
In Chinese Homicide Law, Irrationality and Incremental Change, 27 TEMP. INT'L & COMP. L.J. 43 (2013), Michael Vitiello and Cary Bricker focus on irrational distinctions that have arisen in Chinese homicide law and explore the probable cause for that irrationality: it represents a toehold for death penalty opponents. The article's conclusion is bolstered by the comparison to the irrational distinctions that mark the history of the death penalty in the United States.