Marquette University Law School Faculty Blog

According to recent news reports, a growing group of Chinese officials and scholars has commenced a semiofficial campaign to challenge Japanese sovereignty over Okinawa. This is of course in addition to the widely publicized Chinese efforts to challenge Japanese control over the Senkaku / Diaoyu Islands. The basis for the claim to Okinawa appears to be a combination of early history and the Cairo Declaration, which the United States, China, and the United Kingdom issued in 1943 to help prepare the post-war order in East Asia. The argument goes like this: Okinawa and the other Ryukyu Islands were originally Chinese territory because the Ryukyu Kingdom was a tributary state of the Ming and Qing Dynasties; Japan stole the Ryukyus by invading them in 1609 and formally annexing them in the late 1870s; the Allies demanded the reversion of sovereignty over Okinawa to China in 1943 by stating in the Cairo Declaration that “all the territories Japan has stolen from the Chinese . . . shall be restored to the Republic of China”; and Japan agreed to the reversion of sovereignty by accepting the 1945 Instrument of Surrender, which provided for the enforcement of the Cairo Declaration. In this post, I’d like to identify a few reasons why this argument is unpersuasive. Read more »

I have had the pleasure of attending law school abroad at Koç University in Istanbul, Turkey, and I am currently studying at the University of Copenhagen for one semester.  Other American law students have occasionally asked me about the benefits of studying law abroad.  Some may wonder whether I will be adequately prepared to practice in the United States, given my focus on foreign law.

My fellow law students and I will enter a legal world that is more globalized than ever before.  American clients are increasingly becoming subject to jurisdictions beyond United States borders, as corporations are diversifying their business throughout the world in response to the world-wide economic turmoil in recent years.  Now, it would not be uncommon for a business to be incorporated in Delaware, and have affiliated companies in Brazil and France.  This same company may well hold bank accounts in Switzerland, have assets in South Africa, invest in Saudi Arabia, and conduct business transactions in Japan.  As a result, lawyers may be asked to provide advice on how a French subsidiary of an American parent company would be taxed and whether any international tax conventions apply; what happens if an American financial institution enters into a contract with a Saudi lender and the contract fails to meet the strict requirements of Islamic finance law; or what if an American car dealer enters into a sales contract with a German car manufacturer and the contract fails to meet EU sales directives?  Questions such as these are becoming more and more relevant and American attorneys need to be able to provide answers to clients who wish to do business abroad.  Read more »

With a little over a year before the withdrawal of troops from Afghanistan, the United States has attempted to navigate complicated global crises without being drawn into additional conflict. Without a doubt the current crises in North Korea and Syria have tested that resolve. While the case for support or intervention can be debated within Congress and the corridors of the West Wing, one potential document has the legal authority to bind the United States to action without debate, public approval, or a congressional vote. Article V of the North Atlantic Treaty obliges the United States and its signatories (twenty-eight member countries in total) to collective defense in the event one of the member states is attacked. Similar to the alliance system that helped expand the Great War, this agreement continues to increase in members with Albania and Croatia joining in 2009, adding to the increased potential for errant state actors. Read more »

The Atlantic has a good article out right now on mayoral participation in global diplomacy. According to the authors, the practice is increasingly common and ambitious. Mayors of large cities have taken on issues ranging from global warming to nuclear disarmament, to economic growth and terrorism. These efforts are also becoming more institutionalized. The mayor of New York, for example, has a “Mayor’s Office for International Affairs,” and Europe has an “EU-China Mayors’ Forum” that promotes relations between European and Chinese municipal authorities. The authors use the term “diplomacity” to refer to the “expanding propensity of cities to develop the necessary mechanisms to autonomously navigate foreign relations on their own.”

These developments strike me as interesting for a couple of reasons. First, they form half of a two-dimensional assault on a classical model of international relations, which identifies heads of state and their agents as the critical channels for official communication. Diplomacity amounts to a vertical assault on that model because it reflects a dispersion of diplomatic activity among national and local authorities. Communication by national officials other than heads of state—such as legislators—forms the other half: a horizontal assault in the form of a dispersion of diplomatic acts among component parts of national governments. Neither of these is new, but both have intensified under globalization. The result is an entirely different picture of international relations. If diplomacy under the classical model was centralized and tidy, the contemporary counterpart is decentralized and cluttered with a broad range of actors. This has both benefits and disadvantages. States and localities, for example, will often possess unique perspectives on international problems and unique capacity to develop solutions, but the proliferation of voices may also complicate the management of inter-state relations. Read more »

Earlier this week was the last day for our International Conflict Resolution class and, to close,  I thought I would post some overarching comments.  Particularly as the new Secretary of State, John Kerry, embarks on what I hope will be a successful quest to learn more about the Israeli-Palestinian conflict and encourage the parties to reach resolution, it is always useful to remember that newspapers cannot possibly convey the nuances and complexities of conflict.  Here are two different reflections on how American perspectives of the Middle East are shaped:

From Amber Ragonese:

Almost everything the average (non-Jewish) American hears about Israel is in some way related to the Israeli-Palestinian conflict.  Almost everything the average (non-Middle Eastern) American hears about the Middle East is in some way related to war.  Until participating in the Conflict Resolution course, I was no exception.  We hear of suicide bombers attacking crowded markets and public transit.  We hear of rockets crossing over the southern borders and of Palestinians  being targeted by Israeli military forces.  Given this background, I was a bit surprised to find myself around day three of our eight-day escapade suddenly realizing that not a moment had passed in which I felt unsafe or worried about my  security or overall well-being.   Read more »

A highlight of our trip was meeting with Justice Aharon Barak. Barak has been hailed as the father of Israeli constititutional law, and Justice Elana Kagan called Justice Barak her “judicial hero.” His remarks covered a widespread range of topics from the development of Israeli law to several difference famous Israeli Supreme Court cases to the importance of the U.S. Supreme Court. Two different students share their thoughts below:

From Alexandra Weiland:

On a recent trip to Israel with Marquette University Law School, our class was fortunate enough to meet with Justice Aharon Barak, former president of the Israeli Supreme Court. Barak’s contributions to the Israeli legal system could be characterized as staggering.  Read more »

For those interested in federal courts or U.S. foreign relations law, the Supreme Court just issued an important decision in Kiobel v. Royal Dutch Petroleum Co. The basic issue concerned the extent to which the Alien Tort Statute (“ATS”) confers jurisdiction upon district courts to recognize a federal cause of action for violations of customary international law. Here’s what happened: Nigerian nationals sued Royal Dutch Petroleum in federal court for aiding and abetting atrocities allegedly committed by the Nigerian military in the early 1990s, when the plaintiffs and many others were protesting the environmental effects of the oil company’s operations in the Niger River Delta. The district court dismissed some of the claims on the ground that the alleged conduct did not violate international law. On appeal, the Second Circuit dismissed the entire complaint on the view that the ATS does not recognize corporate liability. Many thought that the Supreme Court would affirm on similar reasoning, but the Court mostly sidestepped the issue of corporate liability to focus instead on whether the ATS confers jurisdiction over claims alleging violations of international law when the unlawful acts occurred within the territory of a foreign sovereign. Read more »

As we wrote about the last Israel trip, noting the complications and contradictions of the country are crucial to also understanding it.  On the 65th anniversary of Israeli independence, this blog post from student Kristina Minor discusses the importance and implications of Zionism:

Israel is by far the most complicated place I have ever been.  There is no way to fully understand what is going on in the area without walking the streets and speaking to the people.  What hit me most about the trip was seeing the beauty and passion for life and harmony that has emerged as a result of hundreds of years of conflict and pain.

The very foundations of the Israeli are based on a painful Jewish history and promises waiting to be fulfilled.  Read more »

At the ABA Section on Dispute Resolution Annual Meeting last week, Senator George Mitchell spoke about Northern Ireland and how important hope and patience is for a peace process. On the other hand, and contrary to much that we read about in negotiation, he did not argue that trust is needed. Several of our speakers in Israel spoke about this as well.  The following blog from Nick Grode picks up on this theme:

Having returned from Israel, I find myself reflecting on what I have learned.  One of the most interesting lessons centers on the role of trust in conflict resolution.  While in Israel I had the pleasure of listening to Gershon Baskin [Baskin negotiated the release of Gilad Shalit, the Israeli solider held by Hamas for five years] and Moty Cristal [Cristal was last year's ABA keynote speaker, a well-known negotiation expert involved in numerous Israeli-Palestinian issues] speak about the Middle East conflict.  Both commented on the lack of trust between the Israeli and Palestinian governments.

Interestingly, neither saw this lack of trust as a bar to peace.  Read more »

Today’s post is from Brendan Byrne on visiting the Yad Vashem Holocaust Memorial – a regular stop for visitors to Israel including the President this past month.

Yad Vashem is the official memorial to the victims and survivors of the Holocaust that took 6 million lives and left physical and emotional scars on millions more during World War II. The museum itself is located on a tranquil and peaceful mountaintop surrounded by walking paths that allow for reflection after the atrocities recounted within.

To enter the museum everyone must cross a wooden bridge. Once inside I immediately noticed that I was surrounded by 30 foot high concrete walls and instantly recognized that I was not entering the comforts of home; it was something far from home. Rounding the first turn I saw a single long hallway that seems to be brightly lit at the end, but I couldn’t just walk a straight path to that light; the path is blocked by numerous wired fences.

Read more »

“I am extraordinarily patient, provided I get my own way in the end.”

– Margaret Thatcher

One of the world’s most powerful women died today.  Margaret Thatcher, Britain’s only woman prime minister, was 87.

Thatcher, leader of the country’s Conservative Party, was British prime minister from 1979 to 1990.  According to CNN.com, she shared “a close working relationship” with former President Ronald Reagan, “with whom she shared similar conservative views.” Initially dubbed “Iron Lady” by Soviet journalists, she was well known (for better or for worse) for her personal and professional toughness. (For interesting commentary on Thatcher and her impact, see here, here, and here.)                                               

Thatcher was a trailblazer, one of just a very few women to become heads of their country’s government. While women make up nearly half of the world’s population, worldwide, they represent roughly 16% of the members of national governing bodies.  In the United States, women account for only 18.1% of Congress, 33% of the United States Supreme Court, and no woman has ever been elected president.

So, what’s the problem? Some would argue that there’s nothing stopping women from running for office, even for president. True, there are no laws that outright prohibit women’s participation in government.  (Saudia Arabia, long the hold out on allowing women to vote and to serve in government, has finally reversed course.)  But there are other barriers that may be less obvious. Read more »

In January of this year, the Huffington Post reported on a fire that killed six children and one young adult “at an illegally run orphanage in central China”:

“The deaths Friday in Henan province’s Lankao county have spotlighted China’s lack of government-run child services. They are often left to private citizens with few resources and no legal authority. The Lankao government earlier acknowledged that it had turned a blind eye to the illegal orphanage, which cared for abandoned children and young adults. … The deputy county governor said earlier that some departments had failed in supervision and should shoulder responsibility.” Read more »