Digital Commons Network^™

“Runaway Train” : Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl

Matthew C. Dahl

No abstract provided.

Are You There, Geneva? It's Me, Guantanamo, Keith A. Petty

Keith A. Petty

This essay examines the application of the Geneva Conventions at the Guantánamo Bay Military Commissions. International and domestic commentators have long criticized the military commissions for failing to adhere to the laws of armed conflict enshrined in Geneva, referring to Guantánamo as a “legal black hole.” This criticism, however, is misplaced. Since the attacks of September 11, 2001, the legal framework for prosecuting suspected terrorism detainees has evolved. The underlying reason for this is a considerable gap in the Geneva protective regime for combatants who do not satisfy the legal requirements of prisoners of war (GCIII) or civilians (GCIV). Nonetheless, …

Scope Of Arbitration In Chinese Bits: Policies & Implications, Guang Hong

Guang Hong

This article starts by analyzing the different ingredients that have come together to formulate the current state of China’s policy toward foreign investment. These ingredients are non-exhaustive in nature but are essential in setting the context for the issue to be discussed. Next, we move into the core issue: What are the implications of Bilateral Investment Treaties (“BITs”) that contain arbitration clauses, which incorporates a “narrow” or “broad” scope of arbitration? Specifically, how does the scope of arbitration affect foreign investors conducting Foreign Direct Investment (“FDI”) in China and how does it affect Chinese investors who conduct FDI abroad? In …

In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse

Gabriel C. Lajeunesse

If the aims of tort law are deterrence, compensation, and provision of equitable distribution of risks, U.S. anti-terrorism laws have been marginally effective at best. Though Congress has passed legislation providing causes of action to U.S. victims of terrorism, compensation of victims is often difficult and terrorists are rarely deterred. Attempts to provide such recourse include the Antiterrorism Act of 1991 (“ATA”), the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and the Flatow Amendment to the Foreign Sovereign Immunities Act (“FSIA”). These attempts, however, are not enough. Until international banks and insurers realize the potential risk of doing …

Repackaging, Pharmaceuticals, And The European Union: Managing Gray Markets In An Uncertain Legal Environment, Robert Bird

Robert C Bird

One of the most robust gray markets in the world is the parallel importation of pharmaceutical drugs in the European Union (EU). Drug manufacturers have tried to stop parallel importation with over thirty years of litigation. The result has applied. This manuscript examines the forces underlying the EU gray market for drugs, discusses how trademark law and not patent law has become the primary basis for legal challenges, and offers strategies for manufacturers to impede importers in a truly chaotic legal environment.

International Corrupt Practices Law, Paul D. Carrington

Paul D. Carrington

This essay addresses the current international movement striving to deter transnational corrupt practices that weaken many governments and burden the global economy. It responds to present concerns that the international laws made in the last decade to address this global problem have not been effectively enforced. It describes moderately successful efforts in the United States since 1862 to generously reward private citizens serving as enforcers of its laws prohibiting corrupt practices. It suggests that this American experience might be adapted by international organizations to enhance enforcement of the new international laws deterring corrupt practices.

A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho

Sungjoon Cho

This article provides a concise history of the Doha Round negotiation, analyzes its deadlock and offers some suggestions for a successful deal. The article observes that the nearly decade long negotiational stalemate is symptomatic of the diametrically opposed beliefs on the nature of the Round between developed and developing countries. While developed countries appear to be increasingly oblivious of Doha’s exigency, i.e., as a “development” round, developing countries vehemently condemn the developed countries’ narrow commercial focus on the Doha Round talks. It will not be easy to untie this Gordian knot since both Worlds tend to think that no deal …

The Effectiveness Of Transnational Networks: The Puzzle Of The Hissene Habre Case, Caleb J. Stevens

Caleb J Stevens

No abstract provided.

Legal Theory And The Anthropocene Challenge: The Implications Of Law, Science, And Policy For Weapons Of Mass Destruction And Climate Change, Winston P. Nagan, Judit K. Otvos

Winston P Nagan

No abstract provided.

Global Constitutional Lawmaking, Sungjoon Cho

Sungjoon Cho

The 'I' In Indigenous; Enforcing Individual Rights Guaranties In An Indigenous Group Rights Context, Rebecca Gross

Rebecca Gross

This article suggests that the international trend toward supporting legal autonomy from state control for indigenous communities under the guise of “self-determination,” as embodied in the recently enacted Declaration on the Rights of Indigenous Peoples, has created a manifest legal conflict within the body of international human rights laws between the rights of individuals and the new concept of collective group rights. The article highlights one indigenous woman’s recent struggle in Mexico to assert her right to participate in a local election contrary to her tribe’s customary law forbidding women to do so, in order to illustrate the potential human …

The 'I' In Indigenous; Enforcing Individual Rights Guaranties In An Indigenous Group Rights Context, Rebecca Gross

Rebecca Gross

This article suggests that the international trend toward supporting legal autonomy from state control for indigenous communities under the guise of “self-determination,” as embodied in the recently enacted Declaration on the Rights of Indigenous Peoples, has created a manifest legal conflict within the body of international human rights laws between the rights of individuals and the new concept of collective group rights. The article highlights one indigenous woman’s recent struggle in Mexico to assert her right to participate in a local election contrary to her tribe’s customary law forbidding women to do so, in order to illustrate the potential human …

The 'I' In Indigenous; Enforcing Individual Rights Guaranties In An Indigenous Group Rights Context, Rebecca Gross

Rebecca Gross

This article suggests that the international trend toward supporting legal autonomy from state control for indigenous communities under the guise of “self-determination,” as embodied in the recently enacted Declaration on the Rights of Indigenous Peoples, has created a manifest legal conflict within the body of international human rights laws between the rights of individuals and the new concept of collective group rights. The article highlights one indigenous woman’s recent struggle in Mexico to assert her right to participate in a local election contrary to her tribe’s customary law forbidding women to do so, in order to illustrate the potential human …

Legal Techniques For Dealing With Scientific Uncertainty: The Contribution Of International Environmental Law, Jorge E. Vinuales

Jorge E Vinuales

The article analyzes how scientific uncertainty is handled in international environmental law. The author identifies ten legal techniques used for this purpose (i.e. precautionary reasoning, framework-protocol approach, advisory scientific bodies, law-making by treaty bodies, managerial approaches to compliance, prior informed consent, environmental impact assessment and monitoring, provisional measures, evidence, and facilitated liability) and link them to four different stages of the development of environmental regimes (i.e. advocacy, design, implementation, reparation). These techniques are illustrated by reference to some fifteen environmental treaties and other instruments, as well as through a detailed case-study focusing on the climate change regime.

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

David C. Gray

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

David C. Gray

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Rule-Skepticism, "Strategery," And The Limits Of International Law, David Gray

David C. Gray

This is a review essay of Eric Posner and Jack Goldsmith's fascinating book, The Limits of International Law. In the essay I provide an exegesis of the core argument of the book, which is that the conduct of states in fields occupied by international law is more powerfully described by game theory than by law talk. In particular, the authors argue that state conduct traditionally described in terms of obedience and violation is actually determined by self-interest modified by the strategic conditions of identifiable games; principally coincidence games, coordination games, coercion games, and iterated prisoner dilemmas. In the essay I …

The Sly Rabbit And The Three C’S: China, Copyright And Calligraphy, Marc H. Greenberg

Marc H. Greenberg

This article posits that among the many different methods being used to try to increase enforcement of Western style IP laws in China, that ultimately one of the most effective methods may be to support and aide the slow but steady shift in Chinese culture, away from a collective society view, and towards an individual ownership view – not reasons not based purely on economics, but also as a benefit from a cultural and social perspective – with broader support for the concept of individual rights and freedoms on a variety of fronts, and not just the IP arena. In …

International Treaties On Human Rights, Saumya Uma

Dr. Saumya Uma

Unpackaging Human Rights: Concepts, Campaigns & Concerns, Saumya Uma

Dr. Saumya Uma

The Evolution Of The Chinese Merger Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Susan Beth Farmer

Abstract: The Evolution of the Chinese Merger Guidelines: A Work in Progress Integrating Global Consensus and Domestic Imperatives

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger …

Fulfilling Technology's Promise: Enforcing The Rights Of Women Caught In The Global High-Tech Underclass, Shruti Rana

Shruti Rana

In the early 1980s, Malaysian women working in electronics factories began to experience hallucinations and seizures. Factory bosses manipulated their employees' religious and cultural beliefs, convincing the women that their bodies were inhabited by demons. In this manner, they avoided confronting the more likely causes: the rigid, paternalistic work environment, the intense production pressures placed on the women, and the lengthy shifts and potentially hazardous conditions that the women were forced to endure. This example illustrates the use of gender, religion, and to control and exploit women's labor in the high-tech industry. Unfortunately, this is not an isolated situation. This …

Whose Public? Which Law? Mapping The Internal/External Distinction In International Law, Peter G. Danchin

Peter G. Danchin

This chapter challenges and problematizes the convergence thesis between sovereignty and human rights which is argued to rest on only a partial understanding of the liberal tradition in international law, a position commonly referred to as “liberal anti-pluralism.” While relying on a contingent and thus contestable conception of individual autonomy, liberal anti-pluralist accounts do not in fact seek to challenge the rationale for public law or public reason itself. To the contrary, such accounts advance a vision of “universal” or “global” social order governed by a “neutral” public law which limits the freedom of its subjects pursuant to the single …

A Weed By Any Other Name: Would The Rose Smell As Sweet If It Were A Threat To Biodiversity?, Sophie Riley

Sophie Riley

ABSTRACT Defining and determining what amounts to an invasive alien species has always been a challenging task for states. In particular, where a species is regarded as a resource by one product sector or regime, but considered harmful by another sector or regime, States must often balance or compromise competing claims. Such is the case with respect to the emerging issue of biofuels. Biofuels which are plants from which precursor alcohols such as methanol and ethanol are distilled are seen by states as a potential solution to the problems of climate change and the energy crisis. Yet, many plant species …

Why Will China Establish A Government-Sponsored Response Mechanism In Countervailing Games?, Julien Chaisse, Luan Xinjie

Julien Chaisse

In recent years China has faced numerous countervailing duty investigations among others by the United States and Canada . Reactions to countervailing measures are usually much more policy-oriented than market-oriented. Whereas the dominant strategies adopted by the individual exporting enterprises are usually not the payoff dominant ones, China is tending towards establishing a government-sponsored countervailing response mechanism (Gscrm). With the Gscrm, the bounded rationality of the export enterprises in the countervailing counter-action can be eliminated and therefore payoff dominant equilibrium in a countervailing-responding cooperation game can be achieved.

The Expanding Use Of The Alien Tort Statute In International Human Rights Enforcement, Richard O. Faulk

Richard Faulk

This article examines the historical foundations of the ATS, the complexities of its recent interpretations. It then weighs the utility of the Act as a means for enforcing international human rights in the courts, and examines the risks posed by current trends to those who increasingly pursue international business opportunities. As will be seen, the boundaries of the ATS are inadequately defined, and there are dangerous opportunities for common law mischief and abuse. Precautions are obviously necessary, and the trend toward internationalism in United States jurisprudence suggests that even greater risks lie ahead.

Slippages Of The Public/Private In Resource Wars, James Thuo Gathii

James Thuo Gathii

This paper demonstrates that the public/private distinction that undergirds the view that States have a monopoly of violence of the means to wage war while inaccurate continues to inform contemporary debates in international law in the context of conflicts over resources like diamonds. It shows how the sharp distinctions and boundaries between public and private realms in relation to the monopolization of violence contributes to the ambivalent commitments of the global legal order – and of international law in particular – in dealing with non-state actors engaged in initiating or starting wars in the context of resource wars. In short, …

Architectural Digest For International Trade And Labor Law: Regional Free Trade Agreements And Minimum Criteria For Enforceable Social Clauses, Marley S. Weiss

Marley S. Weiss

Until the advent of binding “social clauses” in free trade arrangements, and incorporation of stronger social rights in the European Community treaties, the rapid widening and deepening of international commercial integration proceeded largely separate from international labor rights obligations. Inclusion of a “social clause” in a trade agreement ensures that the parties´ international labor rights commitments have equal dignity and binding force with their trade obligations. The threat of economic sanction for non-observance of labor commitments akin to the penalties for trade rule violations also may provide some “teeth” to induce compliance, unlike the lack of economic sanctions for violation …

Seceding In The 21st Century: A Paradigm For The Ages, Robert Trisotto

Robert Trisotto

No abstract provided.

Behavioral Economic Issues In American And Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg