Current Issue

Articles

The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery
Robert J. Miller & Olivia Stitz
PDF

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884–85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four-month Conference, which ended with thirteen countries signing the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, these European countries claimed superior rights over African nations and Indigenous Peoples. European explorers planted crosses, signed hundreds of treaties, and raised flags in many parts of Africa to make legal claims of ownership and domination over the native nations and peoples, and their lands and assets. These claims were justified in the fifteenth and in the nineteenth centuries by racial, ethnocentric, and religious ideas about the alleged superiority of European Christian nations. This Article examines the application of the Doctrine and the Berlin Act by England and Germany in East Africa, which now comprises Kenya, Uganda, and Tanzania. This comparative law analysis demonstrates convincingly that the Berlin Act and these colonizing countries applied what we define as the ten elements of the Doctrine of Discovery. These elements had been developed and refined by European legal and political systems since the mid-1400s. Over 400 years later, the Berlin Conference of 1884–85 expressly and implicitly adopted and codified all ten elements to control the European partition and colonization of Africa. Germany and England used this international law to colonize East Africa. Needless to say, European domination, exploitation, and colonization seriously injured the human, property, sovereign, and self-determination rights of Indigenous nations and peoples. The effects of colonization are still felt today. The comparative legal analysis set out in this article sheds light on how law affected and directed African colonization. It also develops a better understanding of the international law of colonialism as well as its historical process and impacts. This Article concludes by explaining the crucial importance of this knowledge.

On the Politics and Ideologies of the Sovereignty Discourse in Cyberspace
Henning Lahmann
PDF

This article critically examines the current discourse on the legal status and substance of the international law concept of "sovereignty" in cyberspace against the backdrop of conflicting political-ideological attitudes. It first traces the origins of the interpretation of "respect for sovereignty" as a primary rule of international law, and then discusses two approaches to cyberspace that challenge the emerging consensus: "cyber imperialism," embodied by the US and the other Five Eyes members on the one hand, and "cyber-Westphalia," represented by China, Russia, and Iran on the other. Both groups conceive cyberspace in ways fundamentally irreconcilable with prevailing legal views. A third group of states endorses the "sovereignty-as-rule" understanding but leaves this legal position vulnerable to both authoritarian co-optation and imperialist dismissal.

This article contributes to the discussion on sovereignty by offering an alternative interpretation of state practice and international jurisprudence that constructs sovereignty as a principle with derivative primary rules. It shows that, despite not by itself having the status of a rule, the principle of sovereignty allows for the identification of rules that protect the territorial integrity and political independence of states beyond the traditional notions of the prohibition of intervention and the use of force. It carefully analyzes evidence in existing practice in support of this novel, doctrinally more precise understanding of sovereignty. Based on the argument's legal implications, it concludes with an assessment of the policies of "persistent engagement" and "cyber sovereignty."

Wage Boards and Labor Revitalization: U.S. Aspirations and Uruguayan Realities*
Ana Laura Ermida & César F. Rosado Marzán
PDF

State-supported sectoral bargaining through wage boards is gaining traction among some U.S. reformers interested in revitalizing unions, collective bargaining, and labor law. New York has become a celebrated case, but the recent experience there left some activists disappointed.

Theoretically, revitalization through wage boards is also complicated. Labor law doctrine, which favors labor union autonomy from the state, might endorse state-created wage boards, but only in a qualified manner. Moreover, reformers consider union membership growth to be important for labor revitalization. And yet, empirical studies have shown that sectoral bargaining has an indeterminate impact on union membership.

Given New York's uneven results, and theoretical qualifications and indeterminacies, this article presents Uruguay as an exploratory study of wage boards to understand what we could learn from the South American country. This article describes how Uruguay's wage councils, convened in various periods since 1943, revitalized labor unions in the South American country. However, specific economic, institutional, and political conditions facilitated the success of the wage councils, pointing at the socio-historical specificities needed for successful wage board strategies. In that light, this article concludes with hypotheses on the possibility of wage board success in the United States and issues for further research to better comprehend the promise of sectoral bargaining through wage boards.

Hiding in the Eye of the Storm Cloud: How CLOUD Act Agreements Expand U.S. Extraterritorial Investigatory Powers
Tim Cochrane
PDF

The United States and United Kingdom will soon implement a new reciprocal international law enforcement data sharing agreement (U.S.-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act), which will enable law enforcement of one signatory state to directly request data from service providers based in the other state. The United States says CLOUD Act agreements simply remove conflicts of law and do not affect its jurisdiction over overseas providers, claiming these are strictly constrained by the personal jurisdiction requirement contained within the Constitution’s Fifth Amendment Due Process Clause. It is widely believed that that the United States will issue few, if any, U.S.-UK Agreement requests.

This article critiques this belief, examining the impact of CLOUD Act agreements at public and private international law, as well as domestic U.S. and UK law. While the removal of conflicts is a significant private international law benefit itself, CLOUD Act agreements also allow signatory states to significantly expand enforcement jurisdiction over overseas providers at public international law. Under domestic U.S. law, such expanded jurisdiction does not appear to be meaningfully constrained by the Due Process Clause, nor would new legislation necessarily be required. Frequent United States use of CLOUD Act agreements should be presumed.

Note

Giving the People a Voice Where It Counts: A Presumption in Favor of Allowing Permanent Residents to Vote in Local Elections
Robin Liu
PDF

This article proposes, as a matter of principle, that there should be a rebuttable presumption in favor of extending voting rights in local elections to permanent residents. It will justify why the proposed presumption should apply, the ways in which it could be rebutted, and offer some insight into how the presumption could serve as a guide to constitutional interpretation and design. It will review the reasons for the connection between citizenship and voting rights, and then address why permanent residents should be granted the right to vote in local elections. Three case studies will be used to illustrate how the presumption could apply to various constitutional democracies.

This article ultimately concludes that normative considerations weigh in favor of enfranchising permanent residents. Noncitizens have demonstrated that they are stakeholders in their communities. Granting them the right to participate in local elections accommodates democratic principles without hindering the ability of national governments to pursue their interests. The article suggests that the proposed presumption should hold unless there is evidence that the issues discussed at the local level include issues generally associated with national policy and that the permanent residents have a reasonable opportunity to naturalize. Notions of fairness and practical considerations weigh in favor of enfranchising permanent residents in local elections.

Current Issue

Articles

The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery
Robert J. Miller & Olivia Stitz
PDF

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884–85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four-month Conference, which ended with thirteen countries signing the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, these European countries claimed superior rights over African nations and Indigenous Peoples. European explorers planted crosses, signed hundreds of treaties, and raised flags in many parts of Africa to make legal claims of ownership and domination over the native nations and peoples, and their lands and assets. These claims were justified in the fifteenth and in the nineteenth centuries by racial, ethnocentric, and religious ideas about the alleged superiority of European Christian nations. This Article examines the application of the Doctrine and the Berlin Act by England and Germany in East Africa, which now comprises Kenya, Uganda, and Tanzania. This comparative law analysis demonstrates convincingly that the Berlin Act and these colonizing countries applied what we define as the ten elements of the Doctrine of Discovery. These elements had been developed and refined by European legal and political systems since the mid-1400s. Over 400 years later, the Berlin Conference of 1884–85 expressly and implicitly adopted and codified all ten elements to control the European partition and colonization of Africa. Germany and England used this international law to colonize East Africa. Needless to say, European domination, exploitation, and colonization seriously injured the human, property, sovereign, and self-determination rights of Indigenous nations and peoples. The effects of colonization are still felt today. The comparative legal analysis set out in this article sheds light on how law affected and directed African colonization. It also develops a better understanding of the international law of colonialism as well as its historical process and impacts. This Article concludes by explaining the crucial importance of this knowledge.

On the Politics and Ideologies of the Sovereignty Discourse in Cyberspace
Henning Lahmann
PDF

This article critically examines the current discourse on the legal status and substance of the international law concept of "sovereignty" in cyberspace against the backdrop of conflicting political-ideological attitudes. It first traces the origins of the interpretation of "respect for sovereignty" as a primary rule of international law, and then discusses two approaches to cyberspace that challenge the emerging consensus: "cyber imperialism," embodied by the US and the other Five Eyes members on the one hand, and "cyber-Westphalia," represented by China, Russia, and Iran on the other. Both groups conceive cyberspace in ways fundamentally irreconcilable with prevailing legal views. A third group of states endorses the "sovereignty-as-rule" understanding but leaves this legal position vulnerable to both authoritarian co-optation and imperialist dismissal.

This article contributes to the discussion on sovereignty by offering an alternative interpretation of state practice and international jurisprudence that constructs sovereignty as a principle with derivative primary rules. It shows that, despite not by itself having the status of a rule, the principle of sovereignty allows for the identification of rules that protect the territorial integrity and political independence of states beyond the traditional notions of the prohibition of intervention and the use of force. It carefully analyzes evidence in existing practice in support of this novel, doctrinally more precise understanding of sovereignty. Based on the argument's legal implications, it concludes with an assessment of the policies of "persistent engagement" and "cyber sovereignty."

Wage Boards and Labor Revitalization: U.S. Aspirations and Uruguayan Realities*
Ana Laura Ermida & César F. Rosado Marzán
PDF

State-supported sectoral bargaining through wage boards is gaining traction among some U.S. reformers interested in revitalizing unions, collective bargaining, and labor law. New York has become a celebrated case, but the recent experience there left some activists disappointed.

Theoretically, revitalization through wage boards is also complicated. Labor law doctrine, which favors labor union autonomy from the state, might endorse state-created wage boards, but only in a qualified manner. Moreover, reformers consider union membership growth to be important for labor revitalization. And yet, empirical studies have shown that sectoral bargaining has an indeterminate impact on union membership.

Given New York's uneven results, and theoretical qualifications and indeterminacies, this article presents Uruguay as an exploratory study of wage boards to understand what we could learn from the South American country. This article describes how Uruguay's wage councils, convened in various periods since 1943, revitalized labor unions in the South American country. However, specific economic, institutional, and political conditions facilitated the success of the wage councils, pointing at the socio-historical specificities needed for successful wage board strategies. In that light, this article concludes with hypotheses on the possibility of wage board success in the United States and issues for further research to better comprehend the promise of sectoral bargaining through wage boards.

Hiding in the Eye of the Storm Cloud: How CLOUD Act Agreements Expand U.S. Extraterritorial Investigatory Powers
Tim Cochrane
PDF

The United States and United Kingdom will soon implement a new reciprocal international law enforcement data sharing agreement (U.S.-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act), which will enable law enforcement of one signatory state to directly request data from service providers based in the other state. The United States says CLOUD Act agreements simply remove conflicts of law and do not affect its jurisdiction over overseas providers, claiming these are strictly constrained by the personal jurisdiction requirement contained within the Constitution’s Fifth Amendment Due Process Clause. It is widely believed that that the United States will issue few, if any, U.S.-UK Agreement requests.

This article critiques this belief, examining the impact of CLOUD Act agreements at public and private international law, as well as domestic U.S. and UK law. While the removal of conflicts is a significant private international law benefit itself, CLOUD Act agreements also allow signatory states to significantly expand enforcement jurisdiction over overseas providers at public international law. Under domestic U.S. law, such expanded jurisdiction does not appear to be meaningfully constrained by the Due Process Clause, nor would new legislation necessarily be required. Frequent United States use of CLOUD Act agreements should be presumed.

Note

Giving the People a Voice Where It Counts: A Presumption in Favor of Allowing Permanent Residents to Vote in Local Elections
Robin Liu
PDF

This article proposes, as a matter of principle, that there should be a rebuttable presumption in favor of extending voting rights in local elections to permanent residents. It will justify why the proposed presumption should apply, the ways in which it could be rebutted, and offer some insight into how the presumption could serve as a guide to constitutional interpretation and design. It will review the reasons for the connection between citizenship and voting rights, and then address why permanent residents should be granted the right to vote in local elections. Three case studies will be used to illustrate how the presumption could apply to various constitutional democracies.

This article ultimately concludes that normative considerations weigh in favor of enfranchising permanent residents. Noncitizens have demonstrated that they are stakeholders in their communities. Granting them the right to participate in local elections accommodates democratic principles without hindering the ability of national governments to pursue their interests. The article suggests that the proposed presumption should hold unless there is evidence that the issues discussed at the local level include issues generally associated with national policy and that the permanent residents have a reasonable opportunity to naturalize. Notions of fairness and practical considerations weigh in favor of enfranchising permanent residents in local elections.