Disintegrating Customary International Law: Reactions to Withdrawing from International Custom

Withdrawing from International Custom, a recent article by Curtis Bradley and Mitu Gulati, has sparked interest and debate. Bradley and Gulati’s article, develops with significant nuance and detail that, naturally, can be best understood by a careful reading of their work. In essence, it proposes a modification in customary international law (CIL) doctrine – a change that would permit states to unilaterally exit from existing customary international law. This Essay will act as a brief reflection on that article. In Part I, it will explore the analogies Withdrawing makes between CIL and contract and will argue, first that CIL and contract are not analogous and, second, that even to the extent that contract demonstrates how other doctrinal areas order exits from legal relationships, contract illustrates the point that unilateral exit is a recognized abdication of the exiting party’s obligations and that exit gives rise to legal liability. In Part II, it explores the analogies Withdrawing makes between governments and agents in order to unpack some of the theoretical political theory constructs on which Withdrawing relies, and to explore the limitations Withdrawing sets on the proposal for unilateral exit. Part III of this Essay will make an affirmative argument for symmetry between CIL formation doctrine and CIL disintegration doctrine. The current proposal anticipates that CIL formation would remain unchanged, but exit for any given state would be far more expeditious than is contemplated by current CIL exit formulations. This Part will illustrate that this proposal violates a strong presumption in favor of symmetrical entrenchment

Nature’s Rights

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a plaintiff brought a suit claiming rights for the Colorado River ecosystem, although the case was dismissed. Meanwhile, several countries outside the United States have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions. This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing a survey of select legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical foundation for students, clerks, judges, and lawmakers facing questions about extending rights to nature

From Odious Debt to Odious Finance: Avoiding the Externalities of a Functional Odious Debt Doctrine

This Article looks at the generally agreed upon characteristics of the odious debt doctrine and considers the unintended consequences and externalities that would ensue if this doctrine were ever made regularly operative. The enlivened scholarly debate surrounding the odious debt doctrine assumes that debt is the sole finance vehicle for despotic governments. This is simply not the case. Debt is not the sole finance vehicle; despots are able to raise funds through a wide variety of other methods. These include the pillaging of the nation\u27s natural resources, property, and other valuable asset as well as the exploitation of the nation\u27s human resources. In a world with a functional odious debt doctrine one can envision that despotic leaders, facing great difficulty in accessing private or public loans, may rely more heavily on these alternative sources of funds. Furthermore, although debt can be crippling for developing countries and merits the attention it has received, these alternative methods of despotic financing may in fact be yet more adverse than debt in both the short and long term. This Article investigates the contents of the odious debt doctrine to query what characteristics make debt odious rather than simply onerous. It then seeks to establish that there may be little distinction between those characteristics as they apply to debt and as they apply to other types of transnational financial obligations and financing arrangements. Finally, the Article posits that if there is, in fact, little distinction, there may be valuable lessons to be learned from the odious debt doctrine for application to other types of transnational financing arrangements, and proposes that an odious finance doctrine is the better approach. The contours of such an odious finance doctrine are presented herein

Contracts on the Seabed

The ocean is, by all accounts, largely unexplored and very poorly understood. The only way to change that, according to the experts devoted to the pursuit of oceanic knowledge, is to “get down there and do it” by exploring, charting and cataloguing the earth’s last frontier. To this end, the United States Oceanic and Atmospheric Administration is conducting research on as much of the ocean’s floor as it can—an area about the size of West Virginia each year— as quickly as it is able. West Virginia, though, is small compared with the ocean. Expeditions to explore and map the ocean floor share one feature: the novelty of what scientists are finding. A few examples of these unexpected finds include a “tar lily” found in the Gulf of Mexico in April 2014, creatures that make their home exclusively at the 438°F mouth of hydrothermal vents, the “Pogo squid” that uses a narwhal-like horn to hop along the ocean floor, a forty foot- long bioluminescent pyrosome that looks like a giant aquatic tube, and a wide variety of other previously unseen creatures

Dean\u27s Desk: Recognizing IU Maurer alumnae who have made a difference

A couple weeks ago, I had the opportunity to welcome future law students as part of our annual Admitted Student Day. From their seats in the Kathleen and Ann DeLaney Moot Court Room, they look to the front of the room where they see the portraits of four trailblazing alumnae who have made indelible marks on the judiciary. Juanita Kidd Stout ’48, Sue Shields ’61, Linda Chezem ’71 and Loretta Rush ’83 all face out into the sea of newly admitted students who one day hope to forge paths of their own.As we celebrate Women’s History Month, I wanted to recognize some of our proud past and share encouraging and inspiring news about the next generation of women attorneys

Dean’s Desk: The IU Maurer School of Law and the Indiana Supreme Court

On Nov. 1, my first day as the 17th dean of the Indiana University Maurer School of Law, I attended the robing ceremony for Derek Molter, Indiana’s 111th Supreme Court justice. This public ceremony was an opportunity for those in attendance to celebrate Justice Molter’s formal swearing in, which had occurred privately on Sept. 1. For the IU Maurer School of Law, it was also an opportunity to celebrate Justice Molter joining three other IU Maurer alumni on the five-person court. Established in 1816, the court precedes our law school by about 30 years. Still, for most of Indiana’s history, the IU Maurer School of Law and the Indiana Supreme Court have had a strong relationship. The terrific librarians in our Jerome Hall Law Library have started a project to better catalogue the important work of the Indiana Supreme Court and the many interactions between the justices and our law school. Here are some early findings from that work

The Individual and Customary International Law Formation

A state monopoly on customary international law formation was once required and acceptable, given the status states enjoyed as the sole subjects of international law. Since the drafting of the most commonly cited doctrinal sources of customary international law, legal personhood has been extended to individuals. During this same time period, individuals have come to participate in treaty-making in some key areas of international law, including human rights. The customary international law of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects protected by those provisions that have attained the status of customary law. Unlike treaty law, though, there is no space in the traditional customary international law doctrine for individuals to participate in the law-making process. As a result, there is currently a disjuncture in customary international law; individuals are its subjects but are not seen as legitimate participants in its formation. Uncomfortable with this state of affairs, this Article seeks to investigate whether the participation of individuals in customary international law formation is desirable. First, it takes note of a prior observation of legal scholars that individuals do, through various mechanisms, already play an active role in customary international law formation despite the doctrinal insistence that only States play such a role. Second, this Article develops theoretical justifications for the inclusion of individuals in customary international law formation. Finally, calling on established legal institutions as well as on social science tools for assessing individuals\u27 practices, beliefs and expectations, the Article proposes methods by which individuals might participate in the customary international law formation process

Towards a Cosmopolitan Vision of International Law: Identifying and Defining CIL Post Sosa v. Alvarez-Machain

In the wake of the Supreme Court\u27s decision in Sosa v. Alvarez-Machain, future Alien Tort Claims Act (ATCA) litigants seemingly will be asked to demonstrate that the norms giving rise to their actions are violations of clearly established Customary International Law (CIL). Given the mutable character of CIL, especially in the area of human rights, this will surely fuel the already voluminous literature on the content of the CIL of human rights. While debate will certainly arise over the norms that have been become CIL, significant attention must be also be devoted to the problems inherent in the CIL of human rights. Among the most significant is its focus on the statements, actions and beliefs of sovereign states to the exclusion of the individuals the human rights regime aims to protect. This article asks whether the traditional formation and function of Customary International Law (CIL) might be outmoded, given identifiable changes in international law on the one hand and identity formation on the other. Legal scholars have often pointed to changes international law has undergone in the years since the signing of the Universal Declaration of Human Rights, due to the focus human rights has placed on the individual, both as subject and object of that law. At the same time, the literature on cosmopolitanism suggests that how individuals think of citizenship and identity has also weakened traditional notions of sovereignty. This article concludes that such changes may require a new formulation for CIL: one that takes into account the beliefs of individuals as to their human rights under CIL

The 2008 Ruggie Report: A Framework for Business and Human Rights

In June 2008, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, submitted the final report of his initial three-year mandate. The Report, titled Protect, Respect and Remedy: A Framework for Business and Human Rights, provides a governance-based set of findings and recommendations on the issue of business and human rights. This essay provides a concise description and brief analysis of the Report

Nature\u27s Rights

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a plaintiff brought a suit claiming rights for the Colorado River ecosystem, although the case was dismissed. Meanwhile, several countries outside the United States have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions. This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing a survey of select legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical foundation for students, clerks, judges, and lawmakers facing questions about extending rights to nature