Law Commons^™

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

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Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member …

The Un: A Situation Report, Benjamin Zawacki

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The UN: A Situation Report is a review of two recent books on the past, present, and future of the UN; in short, of its relevance in a changing and uni-polar world at the end of Kofi Annan’s two terms as Secretary-General. The books’ focus is both on the organization’s successes and failures, and its efforts at self-reform in the face of near-constant criticism. They are reviewed as individually divergent in quality but as a formidable “situation report” when read in tandem. Paul Kennedy’s The Parliament of Man, save for its first of three parts, is generally criticized for its …

Realism And Transnationalism: Competing Visions For International Security, Nathan A. Canestaro

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This paper is a multidisciplinary study of two competing theories of states’ motives and behavior in international relations, realism and transnationalism. The first theory, realism, suggests that states are constantly competing for security and power within an anarchical international system incapable of preventing aggression or conflict. A competing philosophy, transnationalism, (also known as liberalism) suggests that cooperation, not competition, is the defining characteristic of international relations and that democratization and global economic interdependence reduce the benefits of interstate conflict and encourage long-term cooperation.

This paper seeks to explain the apparent disparity of states competing for power in security matters while …

Essay: Special Operations Forces And War Crimes By Guerillas, Gregory R. Bart

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No abstract provided.

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif

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The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the new …

Mnc Liability For International Human Rights Violations Under The Alien Tort Claims Act., Frank Christian Olah

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This paper seeks to elucidate the fundamental sources of ATCA jurisprudence that have modernized the act into the weapon it has become for foreign human rights plaintiffs. It also attempts to describe some of the forms of liability asserted against MNCs, paying special attention to the competing forms of aiding & abetting liability as conceptualized in the Unocal case. Part II of this paper will provide a brief and concise review of the three cases every ATCA corporate defendant should know: Filartiga, Kadic and Sosa. These cases lay the groundwork for human rights litigation against MNCs under the ATCA’s modern …

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

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On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

Compensation For Property Under The European Convention On Human Rights, Tom Allen

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This Article investigates the nature of the right to property guaranteed under the First Protocol to the European Convention on Human Rights ('P1-1'). It argues that the European Court of Human Rights has been torn between two theories of the right to property. The first is the "integrated theory", and it holds that the right to property shares common values and purposes with other Convention rights. Hence, the interpretation of P1-1 should reflect principles developed in the interpretation of other Convention rights. It is argued that the application of the integrated theory should support a "social model" of property. The …

Fighting Corruption Through Regional And International Conventions: A Satisfactory Solution?, Indira M. Carr

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While considering the current legal frameworks adopted by the regional and international anti-corruption conventions this article aims to show (1) that the lack of a unified approach is unlikely to further the fight against corruption in any meaningful way, (2) that regulation is unlikely to be efficient results unless there are robust enforcement mechanisms in place, and (3) that anti-corruption legislation provides only a partial answer and that we need to engage in what I call a process of re-socialization. Part 2 (How Widespread is Corruption?) critically assesses the methodology adopted by Transparency International (TI) for compiling its perception index. …

Trade Barriers In Service/Investment Markets Erected By Korea And Japan, Eun Sup Lee

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This study analysis shows that the anti-competitive practices in the service market of the two countries have almost identical characteristics even though there are differences in the degree of the criticism against those barriers from their trading partner countries. These practices reflect the policy objectives of both government to emphasize consumer protection or stability of financial institutes rather than the institutes’ competitiveness or operative of efficiency, somewhat different from developed western countries. Such policy objectives reflect the overall social and cultural environments of the two countries which stress stability rather than productivity or efficiency of any institute. Considering the over-all …

The Most International Of International Crimes: Toward The Incorporation Of Drug Trafficking Into The Subject Matter Jurisdiction Of The International Criminal Court, George S. Yacoubian

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At the 2004 annual meeting of the American Society of Criminology, I presented an article on drug trafficking and its implications for the international legal and social science community. During that presentation, several audience members commented that the analysis would be considerably stronger with international drug data. While there are few reliable sources for this type of information, they do exist. This essay thus represents a current summary of the drug use and abuse prevalence data, both internationally and in the United States. Given the state of the drug problem across the globe, the argument for the incorporation of drug …

The Coalescence Of United States Immigration Law And International Criminal Law: An Exploration Of Elias Zacarias In The Context Of Female Genital Mutilation, George S. Yacoubian

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In INS v. Elias Zacarias, the Supreme Court (SC) affirmed that nongovernmental actors (e.g., guerilla groups) can commit “persecution” as defined by § 101(a)(42) of the Immigration and Nationality Act (INA). Human rights violations by any international actor, governmental or otherwise, can thus, according to Elias Zacarias, trigger asylum protection in the United States (US). In contrast, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the US is a party, requires the victimizer to be a “public official or other person acting in an official capacity.”

The CAT thus imposes a state …

Splitting Genes: The Future Of Gmo's In The Wake Of The Wto/Cartagena Standoff, Sam A. Blaustein

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This article examines the conflict surrounding GMO's (Genetically Modified Organisms) between the WTO and the UN. The respective positions of the United States and the European Union are discussed. The article argues that both international and domestic laws conflict with the rigid "precautionary principle" and straight to market approach adhered to by the European Union and the United States respectively. It ultimately suggests that common GMO specific laws are necessary for both sides to meet their respective goals and obligations.

A Complete Property Right Amendment, John H. Ryskamp

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The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Hostile Takeovers And Hostile Defenses: A Comparative Look At U.S. Board Deference And The European Effort At Harmonization, Tyler A. Theobald

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The United States and the European Union have taken very different approaches in dealing with tender offers, especially in respect to the amount of power the board of directors has to block an unwanted takeover attempt. The United States has no single set of guiding principles regarding most of substantive corporate law and the field of tender offers is no different. The European Union, on the other hand, has very recently passed legislation that not only attempts to harmonize the corporate takeover laws of all its member states, but seeks to restrict the power of the board of directors. The …

Do Foreigners Need Title Insurance In Mexico? - An Analysis Of U.S. Title Insurance And Mexican Real Estate Law, Jeffrey G. Boman

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This paper analyzes the title insurance industry in the United States and comparable institutions in Mexico. It begins with an overview of the history of title in both counties, followed by a description of their respective real estate systems. Finally, a summary of the laws that affect holding title to property in Mexico reveals that, although title insurance may provide other benefits for foreign investors, it provides duplicitous coverage for property in Mexico.

Through The Looking Glass: Runaway Productions And "Hollywood Economics", Adrian H. Mcdonald

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This paper uses the issue of runaway production as a looking glass into the complex world of Hollywood economics and politics. As such, a broad overview of Hollywood's business practices, history, and technology are discussed so the reader can understand how runaway production (a major issue itself) is one piece of the Hollywood puzzle. Specifically, this paper attempts to study runaway productions from the Law and Economics approach described in Judge Richard Posner's text on the subject. Events in 2006 illustrate the continuing importance of runaway productions and CEIDR's August 2006 report is discussed in this paper.

Recently expanded, this …

Reforming Mexico’S Labor Law For Independent Labor Unions, Mischa H. Karplus

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Reforming Mexico’s Labor Law for Independent Labor Unions analyzes the legal difficulties Mexican independent labor unions face in establishing themselves and proposes a legislative solution. The methodology used examines the institutionalized behaviors of the administrative labor boards and businesses, which prevent the formation of independent labor unions. The discretion that Mexican labor law affords the labor boards and businesses explains, in large measure, the obstacles facing independent labor unions. Having analyzed the relevant legal framework this article proposes specific legislation to strengthen these independent labor unions. Within the context of a developing country, Reforming Mexico’s Labor Law for Independent Labor …

The Flight From Arbitration: An Empirical Study Of Ex Ante Arbitration Clauses In Publicly-Held Companies’ Contracts, Theodore Eisenberg, Geoffrey Miller

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We study a data set of 2,858 contracts contained as exhibits in Form 8-K filings by reporting corporations over a six month period in 2002 for twelve types of contracts and a seven month period in 2002 for merger contracts. Because 8-K filings are required only for material events, these contracts likely are carefully negotiated by sophisticated parties who are well-informed about the contract terms. These contracts, therefore, provide evidence of efficient ex ante solutions to contracting problems. The vast majority of contracts did not require arbitration. Only about 11 percent of the contracts included binding arbitration clauses. The rate …

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

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This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted in …

Of Politics And Policy: Can The U.S. Maintain Its Credibility Abroad While Ignoring The Needs Of Its Children At Home?—Revisiting The U.N. Convention On The Rights Of The Child As A Transnational Framework For Local Governing, Cleveland Ferguson

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The article uses the lens of the Convention on the Rights of the Child as a framework for developing solutions. It compares the world’s approach of using the underpinnings of the Convention to create the Millennium Development Goals (MDGs). This process represents a positive evolution in international human rights law. Use of the MDGs has met with some success. As a result, the article compares the U.S. go-it-alone approach with that of the collaborative model of the MDGs. Pointing out that child law is primarily state law, the article then discusses the ways in which local governments (cities, counties, and …

From Origin To Delta: Changing Landscape Of Modern Constitutionalism, Jiunn-Rong Yeh, Wen-Chen Chang

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This article deals with the question of whether and to what extent the two forces of democratization and globalization have altered our understandings of constitutionalism. We attempt to theorize a changing landscape of constitutionalism that includes transitional and transnational perspectives and examine respectively their features, functions and characteristics. First, we analyze respective developments of transitional and transnational constitutionalism by identifying their features, perspectives, functions, and characteristics. Then we examine to what extent and in what ways the developments in transitional and transnational constitutionalism pose challenges to our traditional understanding of modern constitutional laws. Finally, we shall picture a new constitutional …

One Step Forward, Two Step Backwards: Addressing Objections To The Icc’S Prescriptive And Adjudicative Powers , Nema Milaninia

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The Rome Statute of the International Criminal Court (ICC) permits the ICC to exercise subject-matter jurisdiction over individuals who engage in war crimes, genocide, crimes against humanity, and crimes of aggression. However, under Article 13, the ICC may only exercise personal jurisdiction over persons referred by the Security Council under Chapter VII, or over nationals of a state party, or persons whose alleged criminal conduct occurred on the territory of a state party

This article evaluates the interplay between principles of public international law and international criminal law in determining whether the ICC’s grant of jurisdiction under the Rome Statute …

The Role Of International Human Rights Law In The American Decision To Abolish The Juvenile Death Penalty, William A. Feldman

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This article focuses on the recent (2005) decision of the United States Supreme Court in Roper v. Simmons, declaring the juvenile death penalty unconstitutional. The article discusses the impact of international law, particularly human rights law, on the decision of the Court, and speculates about the influence of international law on future decisions.

Leveling The Playing Field: Is It Time For A Legal Assistance Center For Developing Nations In Investment Treaty Arbitration? , Eric J. Gottwald

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As part of an effort to encourage foreign direct investment, developing nations have signed over 1500 bilateral investment treaties (BITs) in just the last fifteen years. BITs grant foreign investors substantive rights, such as freedom from expropriation and the right to sue governments directly for a breach of the treaty in a process known as investment treaty arbitration. Over the last five years, the number of investment treaty arbitration claims filed against developing nations has more than tripled. The stakes are high: investor claims routinely seek damages in excess of $100,000,000 and challenge host state regulation of basic public services …

The Wto Appellate Body Gambles On The Future Of The Gats: Analyzing The Internet Gambling Dispute Between Antigua And The United States Before The World Trade Organization, Kelly Ann M. Tran

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The World Trade Organization’s recent Appellate Body decision in the Antigua – United States dispute found that U.S. restrictions on Internet gambling qualified for an exception under Article XIV of the GATS. This paper criticizes the Appellate Body’s decision to overturn the WTO Panel on two grounds. First, it argues that the Appellate Body erred when it concluded that U.S. gambling restrictions are necessary to protect public morals or maintain public order. Second, it argues that the Appellate Body failed to adhere to previous WTO measures dealing with similar jurisprudence and both panels did not adequately explain the significance of …

Transnational Shipments Of Nuclear Materials By Sea: Do Current Safeguards Provide Coastal States A Right To Deny Innocent Passage?, David B. Dixon

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The maritime transport of nuclear materials has created a conflict between two international law regimes: the United Nations International Law of the Sea, and the developing customary law of the 'precautionary principle' in international environmental law. This conflict became apparent in recent years when several coastal states denied passage to ships transporting nuclear materials arguing the shipments posed an environmental threat. This conflict has raised an issue which is currently unresolved: Do coastal states have a right to prohibit innocent passage to ships carrying nuclear materials if these ships fail to fulfill the requirements of the precautionary principle? This review …

Theories Of Supranationalism In The Eu, Rafael Leal-Arcas

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Supranationalism has been a topic of analysis from various points of view when trying to understand the process of European integration. This article aims at presenting the major theories of supranationalism when discussing the ongoing process of European integration. Three main theories are examined: 1) normative versus decisional supranationalism; 2) theories of partial integration, and 3) legal theories of economic integration (such as the neo-liberal economic policy, the European Community (EC) as a special-purpose association of functional integration, as well as the theory of the supranational and intergovernmental dual structure of the EC).

Legitimation Of Trade-Related Environmental Measures Under The Wto, Eun Sup Lee

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Even though the WTO Appellate Body has consistently tried to confirm its position as the environmentalist of the WTO through the positive environment-friendly interpretations of the environment-related provisions, free trade supporters including developing nations and environmentalists do not seem satisfied with those efforts and performance of the WTO. In order to address more specifically the criticism from both free trade supporters and environmentalists on how to harmonize trade and environmental measures, that is, to reduce the concerns about uncertainty and abuse argumented respectively by each side simultaneously, this article suggests that the exceptions of Article XX (b) would add the …

Empire Has Its Own Hurdles: Exploring The Nature Of Exceptionalism And Its Consequences For International Law And Multilateral Decision-Making, Saptarishi Bandopadhyay

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While it is increasingly becoming a platitude that exceptionalism exists in international law, little is being said about the nature, degrees of this exceptionalism and their differential consequences on the international legal system.

In my effort to bridge what I see as an oversight, this paper will seek to show how contemporary exceptionalist practices are creating a fault in the international legal order which will in turn provide a basis for others to argue for an overall reformulation of rules i.e. actions in contravention of the multilateral international legal framework would no longer need to be justified by manipulative rule …