Digital Commons Network^™

The Legality Of Extraterritorial Application Of Competition Law And The Need To Adopt A Unified Approach, Thanh Phan

Louisiana Law Review

The article focuses on the international law and the foundation of the extraterritorial application of competition law (EACL) and proposes a unified approach for all countries to use when considering the extraterritorial application of competition law.

No Place To Hide: Edward Snowden, The Nsa, And The U.S. Surveillance State. By Glenn Greenwald, New York, Ny: Metropolitan Books, 2014., Richard J. Kilroy Jr., Ph.D.

Journal of Strategic Security

No abstract provided.

A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva

Dalhousie Law Journal

International human rights law recognizes a right to health. A majority of domestic constitutions recognize health-related rights. Many citizens believe that they have a moral right to health care. Some theorists agree. Yet the idea of a right to health care remains controversial. Specifying the nature of such a right invites more controversy. Indeed, most models of the right face persistent problems that threaten to undermine the conceptual coherence of a right to health care. This article accordingly sketches preliminary arguments for a new, goal-oriented model of the right to health care. It explains that the model avoids most of …

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

Anonymous Armies: Modern “Cyber-Combatants” And Their Prospective Rights Under International Humanitarian Law, Jake B. Sher

Pace International Law Review

Cyber-attacks take many forms, only some of which are applicable to the law of war. This Comment discusses only those attacks sponsored by a government or non-state entity that have the goal of affecting morale or gaining political advantage, or those attacks amounting to tactical strikes on state or civilian infrastructure. In that vein, this Comment proposes the adoption of a new legal framework for determining the threshold that marks a participant in such a cyber-attack as a “cyber-combatant” by adapting the framework set by the Geneva Conventions and existing custom. This definition should encompass cyber-attacks perpetrated by states, unrecognized …

The Torturers: Evaluating The Senate Select Intelligence Committee’S Torture Report And Assessing The Legal Liability Of “Company Y” Under The Alien Tort Statute, David J. Satnarine

Pace International Law Review

This analysis seeks to argue that ‘Company Y’ is responsible for its role in the use of inhumane and tortious interrogation techniques during the CIA’s Interrogation and Detention Program under the Alien Tort Statute. Furthermore, this analysis will seek to reconcile case law in light of the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., et. al., and subsequent court decisions opining on the extraterritorial reach of the Alien Tort Statute. Significantly, this analysis will also answer questions left open in the Kiobel decision by arguing that corporate entities, such as Company Y, may be held liable …

Between Light And Shadow: The International Law Against Genocide In The International Court Of Justice’S Judgement In Croatia V. Serbia (2015), Ines Gillich

Pace International Law Review

This Article identifies and critically analyzes the contributions the International Court of Justice (ICJ) made to the international law against genocide via the judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) of February 3, 2015. This Article elaborates on the concept of genocide—a term that has originally been coined after the Armenian Genocide and the Holocaust—and the protection against this “crime of crimes” under international law. The analysis section of this Article refers to the historical and procedural context of the dispute between Croatia and Serbia in the case, …

Controversy Over Information Privacy Arising From The Taiwan National Health Insurance Database Examining The Taiwan Taipei High Administrative Court Judgement No. 102-Su-36 (Tsai V. Nhia), Chen-Hung Chang

Pace International Law Review

This article examines the limitations of the application of traditional information privacy theory to disputes relating to modern technologies. If information privacy is understood as an individual’s right to full control over his information, activities involving the collection, process and use of personal data cannot be conducted without the data subject’s consent because his privacy rights would be affected as a result of such activities. Instead of the privacy interest approach, this article introduces a privacy harm approach to reconcile the defects of traditional privacy theory. The privacy interest approach helps identify situations in which an individual’s information privacy conflicts …

Good Faith – The Gordian Knot Of International Commerce, Bruno Zeller, Camilla Baasch Andersen

Pace International Law Review

This paper argues that good faith cannot be defined and furthermore that there is no need to define good faith as it takes on meaning when applied to facts. Hence an explanation or application of good faith is defined by its function namely to enforce the expected performance of both parties. It is further argued that the function of good faith will determine which fact pattern has to be found by a court in order to determine the expected performance of the contractual parties. It follows that good faith is the legal concept which allows courts to do justice and …

China’S Three Warfares Strategy Mitigates Fallout From Cyber Espionage Activities, Emilio Iasiello

Journal of Strategic Security

China is engaged in longstanding cyber espionage against the U.S., as well as other nations, to collect sensitive public and private information in support of national objectives laid out in its 12^th Five Year Plan. Foreign governments citing China’s malfeasance have rebuked these activities, a claim vehemently denied by Beijing. In response, China is leveraging the “Three Warfares” an integrated three-prong information warfare strategy to combat these accusations by leveraging Media, Legal, and Psychological components designed to influence the international community. While the United States has threatened the imposition of economic sanctions, Beijing has successfully parried consequential actions by …

“I Must Tell The Whole World”: Septimus Smith As Virginia Woolf’S Legal Messenger, Riley H. Floyd

Indiana Law Journal

This Note explores the disjunctive moral gap between a civilian ethic of mutual responsibility and the laws of war that eschew that ethic. To illustrate that gap, this Note conducts a case study of Virginia Woolf’s rendering of shell shock in her 1925 novel Mrs. Dalloway. The war put mass, mechanized killing at center stage, and international law permitted killing in war. But Woolf’s character study of Septimus Smith reveals that whether war-associated killing is “criminal” requires more than legal analysis. An extralegal approach is especially meaningful because it demonstrates the difficulty of processing and rationalizing global conflict that plays …

The Celebrity Behind The Brand International Protection Of The Right Of Publicity, Eliana Torres

Pace Intellectual Property, Sports & Entertainment Law Forum

Part I of the article provides an overview of the right of publicity and its history. It presents the importance of this right, particularly for celebrities, and it focuses on the influence of the entertainment and sports industries in a global economy. Then, it analyzes the major differences in level of protection, scope and length, starting with the United States. Then it uses the standard in the United States and compares it with the protection offered in 22 selected jurisdictions based on a survey report by Kenyon & Kenyon titled Getting the Deal Through. Then, it addresses potential challenges to …

An Issue Of Monumental Proportions: The Necessary Changes To Be Made Before International Cultural Heritage Laws Will Protect Immoveable Cultural Property, Matthew Smart

Chicago-Kent Law Review

Cultural heritage has been targeted during military conflicts throughout history. Currently, the conflict in Syria is resulting in the destruction of ancient immoveable cultural heritage property. This destruction is particularly devastating because Syria has served as a melting pot of Eastern and Western cultures throughout history. This note examines the history of international laws aimed at the protection of cultural heritage property. After applying those laws to the current Syrian conflict, this note offers multiple suggestions to improve the protection of immoveable cultural heritage property. The improvements advanced by this note include necessary changes to the current regime of international …

Examining Universal Jurisdiction, Sondra Anton

Washington University Undergraduate Law Review

This article considers the heightened debate over the role of universal jurisdiction within international law, and concludes it should not be judged based on the appropriateness or foundation set by remote precedents. Given the clear disregard for physical integrity rights repeatedly demonstrated by even the most “democratic” of modern governments, it is more pressing than ever to develop universal jurisdiction and ensure the norm’s institutionalization in practice.

A Remedy For Congressional Exclusion Frm Contemporary International Agreement Making, Ryan Harrington

West Virginia Law Review

No abstract provided.

Surrogacy As The Sale Of Children: Applying Lessons Learned From Adoption To The Regulation Of The Surrogacy Industry's Global Marketing Of Children, David M. Smolin

Pepperdine Law Review

This Article argues that most surrogacy arrangements, as currently practiced, constitute the “sale of children” under international law and hence should not be legally legitimated. Therefore, maintaining the core legal norm against the sale of children requires rejecting claims that there is a right to procreate through surrogacy. Since a fundamental purpose of law in the modern era of human rights is to protect the inherent dignity of the human person, a claimed legal right that is built upon the sale of human beings must be rejected. This Article refutes common arguments claiming that commercial surrogacy does not constitute the …

Current U.S. Policy On The Crime Of Aggression: History In The Unmaking?, Donald M. Ferencz

Case Western Reserve Journal of International Law

At the 2015 Annual Meeting of the American Society of International Law, a U.S. policy statement on the crime of aggression was presented as part of a panel entitled "The ICC Crime of Aggression and the Changing International Security Landscape." This article examines current U.S. policy on the crime of aggression, highlighting the historic role that the U.S. played in establishing aggression as an international crime after World War II, and concludes that activation of ICC jurisdiction over the crime of aggression would be a significant step forward in the development of international law.

Foreword: The International Law Legacy Of The Obama Administration, Michael P. Scharf, Julia Liston

Case Western Reserve Journal of International Law

An introduction is presented in which editor discusses various articles within the issue based on the legacy of U.S. President Barack Obama's administration on right to use force in self-defense against non-state actors, foreign policy accomplishments in the Middle East and climate change.

Criminally Disproportionate Warfare: Aggression As A Contextual War Crime, Rachel E. Vanlandingham

Case Western Reserve Journal of International Law

International law has long recognized the general principle that an illegal act cannot produce legal rights. Yet, this principle of ex injuria jus non oritur is seemingly ignored in the uneasy relationship between the two international legal regimes most associated with war. A head of State can, for example, violate international law regulating the resort to armed force by ordering his military forces to illegally invade another country, yet he, through his military forces, simultaneously and subsequently benefits on the battlefield from the application of the separate body of international law regulating the actual conduct of war. The paradoxical benefit …

The Human Right To Clean Air: A Case Study Of The Inter-American System, Varun K. Aery

Seattle Journal of Environmental Law

Combatting environmental damage has become a primary goal of the international community. Unfortunately, international human rights law has not taken this aim seriously. Although the Inter-American regional human rights system, one of three regional human rights institutions, empathizes with protecting the environment, it enervates such goals by barring victims of air pollution and climate change from access to judicial remedies. Seeking to bridge the gap between human rights law and environmental protection, this article explains why clean air is a human right, develops the positive content for such a right, and evaluates the practical reasons that justify the right’s importance. …

Cultural Rights V. Species Protection: A Case Study Of Pacific Leatherback Sea Turtles, Mohit Khubchandani, Mehul Parti

Seattle Journal of Environmental Law

The leatherback sea turtle (Dermochelys coriacea), sometimes called the lute turtle, is the largest of all living turtles. It is the fourth- heaviest modern reptile behind three crocodilians. These species are categorized as critically endangered under the International Union for Conservation of Nature (IUCN) Red List. These turtles avail pro- tection under the Convention on Illicit Trade in Endangered Species (CITES); a treaty enacted to protect wildlife against over-exploita- tion and with an aim to ensure that international trade in specimens of wild animals and plants does not threaten their survival. The said treaty is applicable to species in general …

Response: "Quid," Not "Quantum": A Comment On "How The International Criminal Court Threatens Treaty Norms", Roger O'Keefe

Vanderbilt Journal of Transnational Law

Mike Newton's article performs a considerable service in reminding the reader of some incontrovertible tenets of the law of international organizations (loosely so called in the case of an organ like the ICC) and of the law of treaties. First, the ICC is competent to exercise only that power vested in it by the States Parties to its Statute. In turn, the States Parties are not competent to transfer to the Court a power that they do not possess. "Nemo plus iuris transferre potest quam ipse habet," as Cicero may or may not have put it. Secondly, a treaty may …

An International Commission Of Inquiry For The South China Sea?, Ryan Mitchell

Vanderbilt Journal of Transnational Law

The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to "lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other …

Participatory Democracy In Eu And Australia International Investment Law Policy Processes, James Day

The University of Notre Dame Australia Law Review

This paper turns to the popular field of international investment law, but rather than assessing the consequences of the various bilateral and free trade agreements that dominate this area, it looks at how these agreements are made. Particularly, in an area that is perceived as wanting in legitimacy, it analyses the structures that are involved in making these agreements and assesses them against principles of participatory democracy. Using three participatory sub-principles of openness, inclusiveness and responsiveness as benchmarks, it comments on just how involved the people of the EU and Australia are in making their respective international investment law policies. …

Extraterritorial Application Of The Alien Tort Statute After Kiobel, Ranon Altman

University of Miami Business Law Review

This article explores when corporations can be held liable under the Alien Tort Statute for human rights abuses that are committed outside of the United States. The Alien Tort Statute grants the United States district courts jurisdiction for torts committed against foreigners in violation of the law of nations. While the Alien Tort Statute concerns international law, it does not indicate whether the district courts have jurisdiction over disputes that involve conduct outside of the United States.

In this article, I focus my analysis on the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. That case …

What Can Animal Law Learn From Environmental Law?, Rachel Lamb, Tara Zuardo

Animal Law Review

This Review analyzes and synopsizes What Can Animal Law Learn from Environmental Law?, edited by Professor Randall S. Abate. The book is a compilation of writings by numerous professionals in the fields of animal and environmental law. This Review introduces the background of the book and those sections most relevant to animal law. The book is divided into four distinct units, and this Review addresses each in turn: (1) Introductory Context, (2) U.S. Law Contexts, (3) International and Comparative Law Contexts, and (4) Vision for the Future. This Review ends by illustrating how academic settings can benefit from the use …

A Post-Millennial Inquiry Into The United Nations Law Of Self-Determination: A Right To Unilateral Non-Colonial Secession?, Dr. Glen Anderson

Vanderbilt Journal of Transnational Law

The present Article inquires whether a right to unilateral non-colonial (UNC) secession is grounded in the United Nations (UN) law of self-determination. The Article argues that peoples subjected to deliberate, sustained, and systematic human rights abuses in extremis (e.g., ethnic cleansing, mass killings, or genocide) by the existing state have an international customary law right to UNC secessionist self-determination. This right is coextensive with the "remedial-rights-only" philosophical approach to UNC secession. The Article further argues that in the post-millennial era two developments are likely for the law of UNC secessionist self-determination: first, the right will become available in response to …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …