AJIL Unbound

By: Catherine Powell and Carlos M. Vázquez | May 17, 2016 |

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AJIL Unbound is pleased to publish a second set of contributions to our symposium on the obligation of states under international law to criminalize marital rape. The lead essay by Melanie Randall and Vasanthi Venkatesh, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations Under Human Rights Law,[1] argues that international law requires the criminalization of sexual violence against women within marriage (and other intimate relationships), and that such criminalization should constitute a central element of the human rights...

By: Fareda Banda | May 17, 2016 |

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There are cases that one never forgets. DPP v. Morgan is one of those for me.[1] I read it as an eighteen-year-old in my first year of law school. It was in the criminal law class where we were being taught about rape. The facts left me shocked and outraged. Morgan went out drinking with his friends. At the end of the night, he invited the friends back to his house. He told them that they could have sex with his wife and added that they should not worry if she appeared to resist, because she liked it that way. The friends duly came over and helped themselves to...

By: Michele Goodwin | May 17, 2016 |

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If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.

State v. Oliver, 70 N.C. 60, 62 (1874)

Prologue: The Context

Sadly, sexual violence against women and girls remains deeply entrenched and politicized around the globe. Perhaps no other allegation of crime exposes a woman’s credibility to such intense hostility and imposes the penalties of shame and stigma to a...

By: Barbara Stark | May 17, 2016 |

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Nothing can be said in favor of intimate sexual violence,[1] including marital rape, as Randall and Venkatesh, the authors of Intimate Sexual Violence, Human Rights Obligations and the State,[2] make plain. As the New York Court of Appeals held in 1984:

“Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm. To ever imply consent to such an act is irrational and absurd. . . . A married...

By: Aya Gruber | May 17, 2016 |

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It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh, set out to prove...

By: Melanie Randall and Vasanthi Venkatesh | May 17, 2016 |

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Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the...

By: Joost Pauwelyn | May 02, 2016 |

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I am extremely grateful, and humbled, by the wealth of comments received on my AJIL article[1] through this AJIL Unbound Symposium. One of the many points I take away from these reactions is, indeed, that my analysis offers a snapshot and that many of the critiques now leveled against Investor-State Dispute Settlement (ISDS) are, in Catherine Rogers’s words, “effectively recycled versions of criticisms that were originally leveled against the WTO and its decision-makers.”[2] (Freya Baetens makes a similar point.[3])

In this rejoinder, I would only like to make two...

By: Donald McRae | April 13, 2016 |

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Investor-State Dispute Settlement (ISDS), a matter on which scholars have had diverging views, has captured public attention, particularly in Europe, with proposals by the European Union to change the ad hoc arbitration normally found in bilateral investment treaties to a more court-like system with an appellate process. Joost Pauwelyn’s creative and provocative paper[1] has added a new dimension to this debate. Focusing on who decides disputes, Pauwelyn brings to light some interesting and perhaps nonintuitive data on the differences between World Trade Organization (...

By: Freya Baetens | April 13, 2016 |

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In his thought-provoking and timely article, Pauwelyn asks how it can be “that today’s perception of two parallel processes involving the legalization of world politics, and on two closely related subjects of global economic affairs—cross-border trade and cross-border investment—differs so much?”[1] He focuses on one explanation: the individuals deciding World Trade Organization (WTO) versus International Centre for the Settlement of Investment Disputes (ICSID) disputes.

Comparing Regimes or Perceptions of Regimes?

Pauwelyn identifies five factors...

By: Gabrielle Marceau, Catherine Quinn, and Juan Pablo Moya Hoyos | April 13, 2016 |

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In this short response, we offer some additional context to the appointment of government officials as World Trade Organization (WTO) panelists, some information on the role of the Secretariat and areas of cross-fertilization.

The Involvement of Panel Members Working for Government

Pauwelyn emphasizes that a significant proportion of WTO panel members have a substantial government background. His numbers indicate that for the period 1995-2014, 88 percent of WTO panelists had worked a minimum of “three years in government as diplomats, negotiators,...