Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism

This Article reconceptualizes the doctrine of the responsibility to protect (R2P). R2P provides that when a government fails to protect its citizens from genocide, war crimes, ethnic cleansing or crimes against humanity (“mass atrocities”), that responsibility shifts to the international community acting through the United Nations. The U.N.'s apparent failure to include natural disasters in the catalogue of harms potentially justifying R2P intervention generated considerable controversy following Myanmar's refusal of foreign aid following the devastation wrought by Cyclone Nargis. Those seeking to limit the scope of R2P considered it inapplicable in the case of Myanmar, reading the U.N.'s focus on mass atrocities as a conscious decision to exclude natural disasters as triggers for R2P. By contrast, supporters of R2P looking to rely on the doctrine to compel Myanmar to accept aid have argued that there is no meaningful distinction between the failure to protect following natural disasters and the failure to protect from mass atrocities.

This Article shows that the causes of the harm are irrelevant. Developing what it labels a “constructive interpretation” of R2P, the Article demonstrates that R2P applies equally to a state's failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity. This thesis is advanced through the novel application of fundamental criminal law principles to the regime of international human rights, and includes a discussion of the extent to which the concept of crimes against humanity can be deployed where the harm to a civilian population comes about by means of inaction rather than action.

Law and Longitude

The story of the eighteenth-century quest to “find the longitude” is an epic tale that blends science with law. The problem of determining longitude while at sea was so important that the British Parliament offered a large cash prize for a solution and created an administrative agency, the Board of Longitude, to determine the winner. The generally popular view is that the Board of Longitude cheated John Harrison, an inventor, out of the great longitude prize. This Article examines the longitude story from a legal perspective. The Article considers how a court might rule on the dispute between Harrison and the Board of Longitude. The Article suggests that the popular account of the dispute is unfair to the Board. The Board gave a reasonable interpretation to the statute creating the longitude prize and was not improperly biased against Harrison's method of solving the longitude problem. The Article concludes with some lessons the longitude story offers for modern intellectual property and administrative law.

Domestic Courts and Global Governance

Domestic court decisions often make headlines around the world. For example, recent United States Supreme Court decisions about the International Court of Justice and the rights of foreign detainees held by the United States at Guantanamo Bay have attracted international attention. However, the role of domestic courts in the world extends far beyond headlines. Seemingly routine decisions on issues such as personal jurisdiction, forum non conveniens, choice of law, extraterritoriality, and arbitration have implications for global governance. Legal scholarship divides these issues into doctrinal categories like civil procedure, conflict of laws, and international law. But by doing so, it misses the bigger picture: for better or worse, domestic courts are pervasively involved in regulating transnational activity.This Article cuts across doctrinal categories to provide a systematic analysis of the global impact of domestic courts. It argues that domestic courts perform two global governance functions: they allocate governance authority, and they determine rights and obligations of transnational actors. It shows that these functions matter not only for litigants, but also for global welfare. And it proposes a method to critically evaluate these functions that moves beyond traditional litigant-focused assessments to analysis of the cross-border effects of domestic court decisions. This method will allow scholars and policy makers to develop the empirical foundations needed for the intensifying debate over the proper role of domestic courts in addressing global challenges.

Interpreting Ne Exeat Rights as Rights of Custody: The United States Supreme Court's Chance to Advance the Purposes of the Hague Convention on International Child Abduction

In Abbott v. Abbott, the United States Supreme Court will construe the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, the Court will determine whether a ne exeat clause, which precludes a parent from taking his or her child out of the country without the other parent's consent, is a “right of custody” for purposes of the Convention. The U.S. circuit courts are divided on the issue, and the approach of the majority of circuits is in opposition to the approach taken by the majority of foreign courts that have addressed the issue. This Comment argues that the Court appropriately granted certiorari in Abbott and that the Court should decide that the rights conferred by a ne exeat clause do constitute rights of custody under the Convention.

How the Legal Regimes of the European Union and the United States Approach Islamic Terrorist Web Sites: A Comparative Analysis

Eight years after the 9/11 terrorist attacks it comes as no surprise that the Internet has become a tool of terrorism. In addition to using the Internet to spread propaganda and raise funds to support their cause, terrorists also use the Internet to recruit and train new members. What should come as a surprise, however, is that the U.S. government has failed to take any steps towards deterring terrorist recruitment and training online. In stark contrast, the European Union recently passed three laws targeted directly at online terrorist activity, including: (1) public provocation to commit a terrorist offense, (2) recruitment for terrorism, and (3) training for terrorism. This Comment compares how the legal regimes of the United States and the European Union differ in their approaches to online terrorist activity and suggests a new approach for the United States—one that balances increased action against creators and developers of terrorist Web sites with freedom of speech.

More Cooperation, Less Uniformity: Tax Deharmonization and the Future of the International Tax Regime

Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity. By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity-- could provide a viable alternative. Achieving tax deharmonization's potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.

Hull Insurance and General Average -- Some Current Issues

This Article visits some current topics of interest in the area of hull and machinery insurance and general average. It examines the imperfect indemnity that can arise when the owner of a laden cargo vessel incurs expenditure in an unsuccessful attempt to salvage it after the operation of a maritime peril; recent developments in the evolution of the York-Antwerp Rules where, for the first time, we have two versions, the 1994 Rules and the 2004 Rules, existing in parallel with each other; the emerging phenomenon of pirates hijacking vessels for ransom; and the increasing trend towards absorbing general average up to a certain, previously agreed threshold under hull and machinery insurance policies.

Choice of Law and U.S. Maritime Liens

In an economic climate like the present, with plummeting markets and corporate failure an increasingly common phenomenon, creditors understandably give paramount importance to the search for security and priority of their claims. In the maritime context, the ancient device of the maritime lien has acquired fresh practical significance as a result. Access to a maritime lien does not guarantee recovery, but it puts a creditor in a far better position than rival claimants whose claims are unsecured. When a lien claimant proceeds in rem against a ship, other claimants often feel forced to bring their claims in the same court for fear of losing their rightful security and priority. As a result, disputes between claimants about security, priority, and the right to a maritime lien are often fought in forums that have little connection with the parties or the dispute, except that the ship happened to be in a particular port when it was arrested pursuant to the first in rem claim. Because of the international nature of the shipping business, it is often the case that U.S. courts are required in consequence to consider in rem actions brought by foreign claimants seeking recovery in claims governed by foreign law. The attractiveness of U.S. courts as a forum for in rem claims is enhanced by the fact that far more claims are secured by a maritime lien under U.S. maritime law than under the law of other countries. As a result, it is often the case that a plaintiff in a U.S. court seeks an in rem remedy that would not be available to it under the foreign law governing the underlying claim. The law governing such cases is complex and often confusing because it calls for an understanding of both admiralty procedure and choice-of-law principles. This Article is an attempt to explain the conceptual framework in which such claims should be understood.

At the outset, it is important to distinguish three choice-of-law questions. First, there is the question of what law governs the plaintiff's underlying claim, the cause of action that is the basis for its claim to redress. Second, there is the question of what law governs access to a maritime lien, the right to bring suit in rem on that claim against a ship or other property. Third, there is the question of what law should govern priority between competing maritime liens, the order in which the claims should be paid if the fund available in court is insufficient to satisfy them all in full.

These are different questions that demand different choice-of-law analyses. In many cases, perhaps most, the answer to the first two questions will be the same, with the result that the law governing the underlying claim also governs the availability of a maritime lien. Nevertheless, it is a mistake to think this must necessarily be so. Thus, for example, it is wrong to assume that a claim governed by a foreign law must necessarily be denied a U.S. maritime lien if the foreign law in question would not confer a maritime lien on that kind of claim. The second choice-of-law question (what law governs the maritime lien) may indicate that a foreign law claim has sufficient connection to the United States to be allowed access to a U.S. maritime lien. Conversely, it is wrong to assume that a claim governed by U.S. law must necessarily be secured by a U.S. maritime lien. The second choice-of-law question may indicate that a claim governed by U.S. law nevertheless has insufficient connection with the United States to warrant conferral of the security afforded by a U.S. maritime lien.

Whether or not the same law governs the first two issues (the underlying claim and the availability of a maritime lien), the answer to the third question (what law governs priorities) must always be U.S. law, the law of the forum (lex fori).

Some of these propositions may seem controversial (or just plain wrong, depending on your point of view), but they flow from the conceptual analysis undertaken in Part II, which deals with the ostensibly straightforward case where the underlying claim is governed by a foreign law that would confer a maritime lien on the claim in question. Part III deals with the consequences of recognizing that the first two choice-of-law questions (what law governs the claim and what law governs the maritime lien) are separate and independent. It focuses mainly, but not exclusively, on the first of the two situations described above, where the underlying claim is governed by a foreign law that would not confer a maritime lien on the claim in question, arguing that it should not follow necessarily that no U.S. maritime lien is available in such a situation. Part IV argues the converse proposition, namely that availability of a U.S. maritime lien should not flow automatically from the fact that the underlying claim is governed by U.S. maritime law. It deals with the second situation described above, where the underlying claim is governed by U.S. law but there is some foreign element to the case. Part V shows why the third question, that of priority, must always be governed by the lex fori.

The Aftermath of Norfolk Southern Railway v. James N. Kirby, Pty Ltd.: Jurisdiction and Choice of Law Issues

Contemporary transport contracts are often mixed contracts, as in the case of a through bill of lading or a combined transport document, in that they encompass transport both by sea and by land. From a maritime perspective, jurisdiction over mixed contracts is not a model of clarity. Before Norfolk Southern Railway v. James N. Kirby, Pty Ltd., the rule was rather simply stated but not so easily applied. A mixed contract did not fall within admiralty jurisdiction, except in two instances: (1) where the dominant subject matter of the contract was maritime in nature and the land-based element was relatively minor or incidental to the transaction or (2) where the maritime segment and land-based segment were severable. Under the latter approach, a court could exercise jurisdiction over the maritime dispute, but it could not exercise jurisdiction over a dispute involving the land-based segment.

First, this Article summarizes the United States Supreme Court's decision in Kirby. Second, the Article examines the question of whether the Court's decision expanding the scope of admiralty jurisdiction in “mixed contracts” cases has broadened the scope of  admiralty contract jurisdiction generally and specifically addresses “preliminary contracts.” Third, the Article examines the Court's approach to choice of law in regard to the applicability of federal versus state law. Finally, the Article will examine the impact of the decision in multimodal cases. Inasmuch as the last topic has been addressed elsewhere, this discussion will be brief so as not to be overly duplicative.

A Juxtaposition of Hull and Protection & Indemnity Coverages

There are several key areas of interrelated coverages found in standard hull and protection and indemnity (P&I) policies which continue to intrigue the courts. There are also certain issues collateral to these areas of coverage that bear preliminary discussion.