Papers by William Worster
The Application of Logic and Reason in the Identification and Interpretation of Customary International Law
SSRN Electronic Journal
Duke Journal of Comparative and International Law, 2021
This article analyzes how human rights obligations apply to the Holy See, focusing on the Convent... more This article analyzes how human rights obligations apply to the Holy See, focusing on the Convention on the Rights of the Child (CRC) as the case study. The Holy See is the sovereign of a state and yet it is also a unique nonstate actor in international law. Unlike other non-state actors, it has international legal personality, controls territory, and is party to several human rights treaties. At the same time, the Holy See is also a religious institution whose governance of a church is not subject to international law. This unusual arrangement challenges the application of human rights treaties whose terms were designed with territorial states in mind. Under human rights treaties, including the CRC, states parties are only responsible for wrongful acts that are attributable to them, and occur within their jurisdiction. In order to violate the CRC, consequently, a state must not only act wrongfully, but it must have done so in a situation in which it has a sufficient degree of control. However, the Holy See is non-territorial entity that governs a micro-state as one of its international roles, and this reality challenges the application of the jurisdictional requirement. Although the Holy See is bound, it is unclear when its obligations arise. This article concludes that human rights obligations, such as the CRC, should apply to the Holy See similarly to the current approach applied to states. The first critical issue in assessing the applicability of the CRC to the Holy See is describing the relationship between the Holy See and the Vatican City, as two distinct international legal persons, and identifying which entity is party to the CRC. The second issue is applying the concept of jurisdiction as provided in the CRC and in keeping with other human rights treaties, being de facto control, to this non-territorial entity that governs a territorial state. This analysis shows that the Holy See is indeed bound by the CRC and subject to its obligations where it has sufficient control.
Brooklyn journal of international law, 2020
This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It ... more This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks.
Responsibility
Cases and Materials on the Law of International Organizations, 2020
Powers
Cases and Materials on the Law of International Organizations, 2020
Privileges and immunities
Cases and Materials on the Law of International Organizations, 2020
SSRN Electronic Journal, 2019
This article analyzes how human rights obligations apply to the Holy See, focusing on the Convent... more This article analyzes how human rights obligations apply to the Holy See, focusing on the Convention on the Rights of the Child (CRC) as the case study. The Holy See is the sovereign of a state and yet it is also a unique nonstate actor in international law. Unlike other non-state actors, it has international legal personality, controls territory, and is party to several human rights treaties. At the same time, the Holy See is also a religious institution whose governance of a church is not subject to international law. This unusual arrangement challenges the application of human rights treaties whose terms were designed with territorial states in mind. Under human rights treaties, including the CRC, states parties are only responsible for wrongful acts that are attributable to them, and occur within their jurisdiction. In order to violate the CRC, consequently, a state must not only act wrongfully, but it must have done so in a situation in which it has a sufficient degree of control. However, the Holy See is non-territorial entity that governs a micro-state as one of its international roles, and this reality challenges the application of the jurisdictional requirement. Although the Holy See is bound, it is unclear when its obligations arise. This article concludes that human rights obligations, such as the CRC, should apply to the Holy See similarly to the current approach applied to states. The first critical issue in assessing the applicability of the CRC to the Holy See is describing the relationship between the Holy See and the Vatican City, as two distinct international legal persons, and identifying which entity is party to the CRC. The second issue is applying the concept of jurisdiction as provided in the CRC and in keeping with other human rights treaties, being de facto control, to this non-territorial entity that governs a territorial state. This analysis shows that the Holy See is indeed bound by the CRC and subject to its obligations where it has sufficient control.
SSRN Electronic Journal, 2018
does find some support from other scholars, though only a minority at this point. 2 Based on this... more does find some support from other scholars, though only a minority at this point. 2 Based on this sustained and extensive practice, we must bring quasi-states into the statehood regime and find a place for them in international law. This article will argue that we must accept that statehood can be applied relatively and that a functional analysis is the method for determining when an entity in a particular status will be treated as if it were a state. Currently, there is no clear rule to determine which status or issue results in treatment as if the entity were a state. This article will focus on the question of territorial status only, and will begin to build a more coherent and predictable test for whether an entity that is not a state will be treated as if it were a state. II. FUNCTIONAL STATEHOOD BASED ON STATUS A. Functional personality This article proposes that certain statuses of territorial entities can trigger a functional, case-by-case treatment of the territory as if it w a state. First, it will examine non-territorial entities in order to establish that relative personality is an acceptable and widespread practice in international law. Second, this article will examine state practice to determine that statehood, as a form of international personality, is also applied functionally in many cases. The status of a territorial entity, as a colony, trust territory, occupied area, international administration, transitional entities, secession movements and competing governments, is one such situation that can prompt the application of functional statehood. Before focusing on this specific practice of functional statehood, this article will look at comparable practices of functional personality for background. This practice has considerable pedigree in providing for relative and personality for various entities. 3 2
SSRN Electronic Journal, 2019
SSRN Electronic Journal, 2017
International Law Limitations on the Loss of EU Citizenship After Brexit
SSRN Electronic Journal, 2017
In short, the paper makes the argument that EU citizenship, as prescribed in the EU treaties, sho... more In short, the paper makes the argument that EU citizenship, as prescribed in the EU treaties, should be taken seriously as a citizenship. Initially, it was unclear what significance this new status had. Over time, the EU institutions, primarily the Court of Justice of the EU, have been interpreting the meaning of citizenship. Through this process, EU citizenship has been gradually evolving into a proper “fundamental” legal status that brings the EU citizen into a direct legal relationship with the Union. Brexit, and the threat of UK nationals losing their residence rights in the EU, forces the issue of the current meaning of EU citizenship. Under international law, acquisition of nationality is largely within the discretion of the state, with limited exceptions. However, the loss of nationality is more tightly restricted. The discretion to revoke or terminate nationality is additionally limited by EU controls over loss of EU citizenship. This article concludes that, perhaps counter-intuitively, UK nationals who have validly acquired EU citizenship should not necessarily lose their EU citizenship when the UK leaves the Union because these persons now have a direct legal bond with the Union that Brexit may not be able to disturb. In turn, these UK nationals should retain EU citizenship and the resulting residence rights in the EU.
SSRN Electronic Journal, 2018
exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf [hereinafter Napoli... more exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf [hereinafter Napolitano]. 42 See id., art. 12(2)(a) ("The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft."). 43 See The States Parties to the Rome Statute, INT'L CRIM. CT., https://asp.icc-cpi.int/en_menus/asp/ states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited May 11, 2018).
Contracting Out of Non-Refoulement Protections
SSRN Electronic Journal, 2017
Over the past few years, states have been entering into international agreements that increasingl... more Over the past few years, states have been entering into international agreements that increasingly displace their non-refoulement obligations. Non-refoulement is a legal norm that protects vulnerable people from people expelled and returned to a state where they might face serious mistreatement. This rule has been a cornerstone of the law on international migration and forced movement for a considerable period, even being viewed as a human right by some. However, recently states have adopted agreements that avoid the non-refoulement obligation through a number of arrangements. This study will proceed by looking at three forms of contracting out of non-refoulement: agreements that establish facts, agreements that establish jurisdiction or agreements creating competing norms.
Relative Statehood in Contemporary International Law
SSRN Electronic Journal, 2016
Functional state-like entities are contributing to the shift of international legal personality f... more Functional state-like entities are contributing to the shift of international legal personality from an objective to a subjective regime. What we find are numerous situations where there is an entity that, for one reason or another, cannot be or will not be considered a state. However, the international community needs to engage with those same entities in various functional ways for pragmatic reasons. For lack of a different paradigm, the entity is therefore treated as if it were a state on a functional basis, while all the while continuing to refuse it formal statehood. The difficulty is that this treatment exposes a relativity in perceptions of statehood and may bring the objective statehood regime into doubt. Subjective statehood is increasingly the norm and suggests that objective statehood is not (or no longer) correct.
Renouncing US Citizenship Through Expatriation
A U.S. citizen may freely renounce citizenship by voluntarily performing one of several statutory... more A U.S. citizen may freely renounce citizenship by voluntarily performing one of several statutory expatriating acts with the intention of relinquishing United States nationality. The most common of these acts is formally renouncing U.S. citizenship, either before a designated officer in the U.S. during wartime or a diplomatic or consular officer abroad anytime. Due to the administrative presumption against an intent to lose citizenship, formal renunciation before a consular officer is the most likely to result in an effective expatriation. Every year anywhere from 150 to over 1,500 U.S. citizens expatriate themselves by renouncing their US nationality. These numbers include many well-known individuals, such as Boris Johnson, Henry James, Terry Gilliam, Bobby Fischer, Juan Mari Bras, Kenneth Nichols O’Keefe, and Vince Cate, as well a number of wealthy business leaders. This chapter will give an overview of the process and consequences of the rare event of renunciation of citizenship.
ICTY Article 8. Territorial and Temporal Jurisdiction
This book chapter analyzes article 8 of the Statute of the International Criminal Tribunal for th... more This book chapter analyzes article 8 of the Statute of the International Criminal Tribunal for the former Yugoslavia with reference to the most recent jurisprudence of the ICTY. It examines the territorial and temporal jurisdiction of the Tribunal, considering the basis for jurisdiction, the lawfulness of the exercise of jurisdiction, the scope of the territory and temporal limitations and the problem of crimes whose elements fall both within and without the territorial and temporal jurisdiction of the Tribunal.
Arms Trade Treaty, Article 18, Secretariat
This chapter examines the Secretariat created by the Arms Trade Treaty (ATT). A secretariat is th... more This chapter examines the Secretariat created by the Arms Trade Treaty (ATT). A secretariat is the principle administrative organ of an international organization or treaty regime. As such, it combines aspects of a bureaucracy and an executive agency, but its essential role is to support the States Parties in coordinating the management of the Treaty in a continuous and stable fashion. Importantly, secretariats are staffed by international civil servants, are not under the authority of any State government, and are meant to discharge limited and predefined tasks impartially without the intervention of politics.
Book Review, Kenneth S. Gallant, The Principle of Legality in International and Comparative Law (Cambridge University Press, 2009) (unedited)
Kenneth Gallant's book is a very welcome one and surely one of the better analyses, if not th... more Kenneth Gallant's book is a very welcome one and surely one of the better analyses, if not the best, of the principle of legality. It goes without saying that the principle of legality has moved into the centre of international criminal law (and human rights law) and is a mandatory subject to address in any discussion. Despite this fact, it is usually discussed in only a topical manner, as if its existence as a principle of justice is natural and can be assumed as fundamental, rather than whether and how it exists as a specific protection and limitation in particular cases. This oversight may have been because the work of researching the topic was simply too daunting for many legal scholars. In their stead, Gallant has been brave enough to undertake this study.
SSRN Electronic Journal, 2013
Contemporary customary international law analysis is currently understood to be a struggle betwee... more Contemporary customary international law analysis is currently understood to be a struggle between traditional and modern approaches, implicating significant normative outcomes. These opposing approaches are supposed to reflect the use of the inductive and deductive methods respectively, with the former excusing the freedom of action of the state and the latter limiting the freedom of the state. This image of two schools, possibly in struggle, however, does not fully capture the ways in which the inductive and deductive methods are actually intertwined in customary international law analysis. The methods are not two opposing monolithic techniques. Instead, in practice, the methods are intermixed, combining a variety of choices. This Article will suggest the complex ways inductive and deductive analyses are layered in the assessment of customary international law and refute the notion that the inductive and deductive approaches can be so easily separated. Customary international law is based on a deductive foundation that that the binding nature of the law can be based on consent, that custom is a source of law, and that custom is established by state practice and opinio juris. In determining which rules are binding under customary international law, we use either induction or deduction to construct hypotheses about the law, and determine that those hypotheses can be tested through a sampling study, amassing evidence. The conclusion that we can test for the law through an inductive process, is itself a deduction, and a deduction that avoids the question of whether the issue to be tested is truly a question of law or one of fact. After all, questions of fact are more easily understood as inductively verifiable. Once we determine that we can test for the law, we must construct most frequently through deduction, the types, forms and qualities of evidence, and the nature of the actors, that will be admissible for this examination. We reach conclusions on the form of the data pool and how it
SSRN Electronic Journal, 2012
The formation of customary international law has long been criticized for its lack of a clear met... more The formation of customary international law has long been criticized for its lack of a clear methodology, characterized by an ambivalent relationship with state consent. This article is an attempt to combine international law with the sociological study of critical mass in collective decision-making of groups, with an ultimate goal of opening a dialogue on how customary international law can be both consensual and nonconsensual. Critical mass is the study of incremental, quantitative changes in a system that, at some point, produces a bursting qualitative change in the system. In sociology, this study examines such phenomena as epidemics, markets, fashions and social networking, and has identified several characteristics of systems likely to experience critical mass change. Drawing the parallel with customary international law, the existence and interplay of certain factors suggests whether a customary international law is more or less likely to exist based on the available and observable state practice. Those factors include the role of the rule in the international community, functioning of networks among states for international governance, and the behavior of "specially interested" states, better understood as specially influential. By synthesizing and reimagining these existing ideas in the context of critical mass, we can reach a more nuanced view of the interrelation of consent and nonconsent to customary international law.
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Papers by William Worster