Law Commons^™

Institutionalization And Exclusion, Erica L. Shnayder

Erica L Shnayder

On August 15, 2007, Croatia became the fourth country in the world to ratify the Convention on the Rights of Persons with Disabilities. Since then, however, Croatia has failed to meet its obligations under the international treaty. Croatia has made virtually no progress on deinstitutionalization and continues to deny persons with disabilities the right to legal capacity and equal access to education and employment. In Croatia, persons with mental and intellectual disabilities continually face isolation and segregation on the basis of their disability. In order to meet the goals of the CRPD, Croatia must focus on building a more inclusive …

Too Old To Treat: Is Health Care Of Right To Older Persons In Uganda?, Med Ssengooba

Med Ssengooba

This paper analyses health in the context of older persons/ elderly (words used interchangeably) in Uganda. It offers an insight into health care in Uganda generally and the challenges that older persons experience in accessing health care services. The paper discusses the legal basis upon which older persons can enforce the right to health care in courts of law, and thus it offers a critique of Uganda’s domestic legislation, as well as international instruments to which Uganda is a State Party. The paper finally draws best practices from other jurisdictions as it proposes recommendations on how best Uganda’s health care …

Treaty Interpretation In Wto Dispute Settlement: The Outstanding Question Of The Legality Of Local Working Requirements, Bryan Mercurio, Mitali Tyagi

Bryan Mercurio

This article explores treaty interpretation in dispute settlement at the World Trade Organization (WTO) by seeking to resolve the unanswered question of whether local working requirements – domestic provisions which allow the grant of a compulsory license when a patent is not “worked” in that country – are legal under the international trade regime. The issue remains in flux as local working requirements appear to be inconsistent with the Agreement on Trade-Related Aspects of International Property Rights (TRIPS) Article 27, which prohibits discrimination as to “whether products are imported or locally produced.” However, TRIPS Article 2.2 incorporates the substantial majority …

La Protection Des Civils Dans Les Nouvelles Configurations Conflictuelles : Retour Au Droit Des Gens Ou Dépassement Du Droit International Humanitaire, Gregory Lewkowicz

Gregory Lewkowicz

In this paper, the development of alternative regulatory tools (codes of conduct, monitoring mechanisms, etc.) dealing with the protection of civilians during armed conflicts is scrutinized in the context of “new wars”. The paper analyses the connections between these alternative regulatory tools and classical international humanitarian law (IHL) instruments. The paper suggests that the profusion of alternative regulatory tools can help to disseminate classical IHL norms and to adapt them to contemporary warfare. The paper also envisages the possibility of a new “lex armorum” emerging from these new regulatory tools and challenging classical IHL.

Potential For Future Growth Of The International Criminal Court: Possible Expansion Toward Universal Jurisdiction, Michael K. Marriott

Michael K Marriott

Having an intact legal system to prosecute serious criminal offenses is a luxury taken for granted in many parts of the developed world. While comprehensive domestic legal systems are preferable to the far more complex international legal system, an unfortunate reality of the contemporary world is that where many of the most shocking and large-scale violent crimes take place, there is no domestic legal system to speak of. The International Criminal Court was created to meet the need of prosecuting these offenses. Limited in its jurisdiction on a variety of levels, the ICC nevertheless has on its current docket the …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enriquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and demonstrates that …

Parallel Importation, Patent Right Exhaustion, And Strategies For Navigating The Evolving Landscape, Bryan J. Su

Bryan J Su

Parallel importation provides a means for purchasers and consumers of commercial goods protected by intellectual property law to acquire products for prices lower than the price set by intellectual property right holders. This form of “legal piracy” of grey-market goods is conducted by legally purchasing products in jurisdictions with lower prices, which allows distributors to import products into jurisdictions with higher prices, leading to a competitive advantage. The doctrine of patent exhaustion, especially when applied internationally, allows this practice by giving authorized purchasers of products unfettered ownership and control over the specific articles they acquire.

Analysis of how the United …

Is Imminent Enough?: The Status Of Importation Under Section 337, Anne Marie Morris

Anne Marie Morris

No abstract provided.

Women And Private Military And Security Companies, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Lack of clarity about the application of international law norms and inadequacies of existing regulatory regimes covering private military and security companies have reinforced concerns about transparency and accountability in respect of gender-related violence, harassment and discrimination. This chapter focuses on the main issues and legal concerns raised by the impact of the privatisation of war on women, both as PMSC employees and civilians. Part I highlights how armed conflict, civil unrest, occupation and transition have a detrimental effect upon the lives of women with particular reference to safety, displacement, health and economic disadvantage. Part II provides a summary of …

Insulating The Constitution: Yong Vui Kong V. Public Prosecutor [2010] Sgca 20, Aravind Ganesh

Aravind Ganesh

In May 2010, the Singapore Court of Appeal upheld the constitutionality of the mandatory death penalty in Yong Vui Kong v PP. This article does not deal with the propriety of mandatory death penalty laws, or of the death penalty broadly, but instead focuses on two novel pronouncements by the Court of Appeal. First, that customary international law not only has no legal validity in the domestic Singaporean legal sphere, but that it is also not to be treated as automatically incorporated into Singapore common law. Instead, a rule of customary international law can become part of Singapore law only …

Ecological Considerations Relating To The Destruction Of Chemical Weapons, Aldo Zammit Borda

Aldo Zammit Borda

The Chemical Weapons Convention (CWC) not only establishes a global ban on the development of chemical weapons (CW), it also establishes an international obligation on possessor States to destroy their CW and production facilities. This is a central and mandatory obligation of the CWC, which aims at securing a world free of CW. In view of the risks posed by CW to human health and the environment, the obligation to destroy CW may be seen as directly connected to the right to a healthy environment. While the CWC seeks to set high standards for ensuring the safety of people and …

The Role Of Victims In The First Trial Of The International Criminal Court, Aldo Zammit Borda

Aldo Zammit Borda

The Rome Statute (RS) of the International Criminal Court (ICC) is a milestone for the role it accords to victims in international criminal proceedings. The provisions on victims’ participation in the RS system have been applied for the first time in the case of Mr Thomas Lubanga Dylio. This paper takes the view that a number of significant interlocutory pronouncements on victims’ participation have already been made by the ICC Pre-Trial, Trial and Appeals Chambers which, as such, deserve further analysis. The paper will firstly provide a brief overview of developments with regard to victims’ participation in the area of …

Noncitizens And Citizens United, James Ianelli

James Ianelli

No abstract provided.

The Importance Of Bits For Foreign Direct Investment And Political Risk Insurance: Revisiting The Evidence, Lauge Skovgaard Poulsen

Lauge N. Skovgaard Poulsen

Bilateral investment treaties (BITs) are typically presented as vital risk-mitigating instruments providing foreign investors with “credible commitments” that their assets will not be expropriated, discriminated against, or otherwise maltreated post-establishment. Accordingly, developing countries wanting to attract foreign investment should become more attractive destinations for multinationals when signing the treaties. A great number of studies and surveys indicate, however, that the vast majority of multinationals do not appear to take BITs into account when determining where - and how much - to invest abroad. Apart from reviewing such evidence, this paper discusses the feedback from a series of interviews. Firstly, BIT-negotiators …

Процесс Образования Государств На Пространстве Бывшего Ссср: Правовые Аспекты, Leonid G. Berlyavskiy, Medeya Tabueva

Leonid G. Berlyavskiy

Process of the termination of the USSR as subject of International Law possessing the status of "great power", significant geopolitical formation put set of problems before jurisprudence. The decision of a number from them in many respects depends on determination of legal force of the acts accepted by bodies State powers of former union republics and autonomous formations in 1990-1991 by the termination of existence of the USSR as the subject of International Law.

Customary International Law In The 21st Century: Old Challenges And New Debates, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

This Article will survey the new scholarship that has emerged in international law to challenge the two traditional sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated into norms of customary …

Ex-Post Liability Rules In Modern Patent Law, Rosa J. Castro

Rosa J Castro

No abstract provided.

Joint Criminal Enterprise And The Jurisdiction Of The Extraordinary Chambers In The Courts Of Cambodia, Randle C. Defalco

Randle C DeFalco

No abstract provided.

Informe En Derecho Presentado Ante El Tribunal Constitucional En El Proceso De Inconstitucionalidad Del Artículo 38ter De La Ley 18.933, Pablo Contreras, Gonzalo García, Tomás Jordán, Alvaro Villanueva

Pablo Contreras

El informe afirma la inconstitucionalidad del artículo 38 ter de la Ley No 18.933 en base a tres principales argumentos. En primer lugar, vulneraría el principio y garantía de reserva legal de los derechos fundamentales, puesto que hace recaer la regulación de los precios de los planes de las ISAPRES en las instrucciones generales dictadas por la Superintendencia de ISAPRES. En segundo lugar, la tabla de factores de riesgos, consagrada en dicho artículo, vulnera el principio de igualdad al establecer una diferenciación no justificada en razón de las condiciones de sexo y edad. Finalmente, afecta la libertad del cotizante de …

Transparencia Y Leyes Secretas En Chile, Pablo Contreras

Pablo Contreras

El autor analiza el problema de constitucionalidad de las leyes secretas en Chile, en razón de las modificaciones introducidas a la Constitución en el 2005. Primero, describe brevemente el fundamento sobre la publicidad de la ley en el Estado Democrático. Luego, se analiza el nuevo principio constitucional de publicidad establecido en el artículo 8 de la Constitución. Adicionalmente, se examina la constitucionalidad de las leyes secretas desde dos puntos de vista: confrontando la compatibilidad con el principio general de transparencia –como base de la institucionalidad– y analizando la afectación en el contenido esencial del derecho fundamental de acceso a la …

Between Judicial Enabling And Adversarialism: The Role Of The Judicial Officer In Protecting The Unrepresented Accused In Botswana In A Comparative Perspective, Rowland Cole

rowland cole

The role of the judicial officer in Botswana’s adversarial system has evolved over the decades. Traditionally, the judicial officer in the adversarial system plays a neutral role while the parties present their cases. The semblance of neutrality compels the judicial officer to remain passive and refrain from interfering with the process. Over the years, the courts have recognised that the unrepresented accused cannot get a fair trial as she is unaware of the rules of procedure and evidence. This being the case, the unrepresented accused cannot effectively participate in the proceedings. Consequently, the courts have over the years stated that …

Acerca De La Cláusula Democrática Y Del Dialogo Político En El Tlcuem., Salvador Francisco Ruiz Medrano

Salvador Francisco Ruiz Medrano

The present investigation focuses on detailed analysis of the "democratic clause" imposed on the Economic Partnership, Political Coordination and Cooperation between the United Mexican States and the European Community and its Member States, better known as FTA, which has The purpose of respect for democratic principles and fundamental human rights as enunciated in the Universal Declaration of Human Rights, which guides their internal and international policy and constitutes an essential element of the Treaty.

Exporting The Rule Of Law To Mongolia: Post-Socialist Legal And Judicial Reforms, Sebastian Roberto Astrada

Sebastian Roberto Astrada

This article analyzes Mongolia’s legal and judicial reforms and the efforts of international organizations and outside states to assist or encourage those reforms. Most international organizations and outside states predicate their legal assistance on establishing the “rule of law,” but they rarely operate from a developed definition of this concept. This article analyzes what the concept of “rule of law” commonly means, and establishes a cogent and tangible, and procedurally-minimalist, rule of law definition. This article then uses this formulation to analyze Mongolia’s legal and judicial reforms. Mongolia’s experiences demonstrate four important best practices for future rule of law promotion: …

State Immunity From Execution: In Search Of A Remedy, René Värk, Dmitri Zdobnõh

René Värk

No abstract provided.

Eastphalia As A Return To Westphalia, Tom Ginsburg

Tom Ginsburg

Prognosticators of the international scene have focused on two claims on which there is broad agreement: First, globalization is producing deep integration among nations, moving in the direction of quasi-constitutional global governance; and, second, Asia will significantly influence the world in decades to come. These two claims are in tension with each other. Asian countries have hardly been leaders in deep integration of the constitutionalist variety, though they have been effective participants in globalized markets. Projecting forward, one expects an Asia-dominated international law to emphasize traditional concerns of sovereignty, non-interference, and mutual cooperation rather than the constitutionalist vision of supranational …

National Courts, Domestic Democracy, And The Evolution Of International Law: A Reply To Eyal Benvenisti And George Downs, Tom Ginsburg

Tom Ginsburg

No abstract provided.

In The Name Of International Peace And Security: Reflections On The United Nations Security Council's Legilative Action, Marco A. Velásquez-Ruiz

Marco A. Velásquez-Ruiz

This article seeks to illustrate how the United Nation´s Security Council is entailing a sort of hegemonic capability to act as a legislator, having as a premise the absence of such figure under international law, provided the apparent structure and dynamics of the Law of Nations. Thus, basing its actions on the UN Charter´s mandate to maintain international peace and security, the Council has adopted such kind of measures on the fight against terrorism ‑through Resolutions 1373 (2001) and 1540 (2004). The effects of the Council´s action are analyzed through two yardsticks; legality vis-à-vis the UN Charter and other relevant …

A Dark Descent Into Reality: The Case For An Objective Definition Of Torture, Michael W. Lewis

Michael W. Lewis

Abstract The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture …

Labour Trafficking: Prosecutions And Other Proceedings, Fiona M. David Ms

Fiona David

In Australia, three defendants in two cases have been charged and prosecuted for ‘slavery’ or ’trafficking in persons’ under the Criminal Code (Cth), in circumstances where the crimes have allegedly occurred in contexts other than the sex industry. These cases tend to be described as instances of ‘labour trafficking’, even though the parameters of this phrase are far from settled (see further AIC 2009). This brief describes the progression of these two cases through the Australian court system, with varying outcomes.

Migrant Smuggling And Human Rights - Notes From The Field, Fiona M. David Ms

Fiona David

Eastern Africa is one of the poorest, most conflict-riddled regions in the world and, within this region, migrant smuggling between countries is commonplace. The following article by Fiona David, a lawyer and researcher in smuggling and trafficking issues, seeks to provide some insights into the drivers and realities of migrant smuggling, and the human rights implications of this trade in human misery.