Law Commons^™

Heads I Win, Tails You Lose: Uncertainty And The Protection Of Biodiversity From Invasive Alien Species, Sophie Riley

Sophie Riley

Scientists anticipate that the problem of invasive alien species will be exacerbated by co-stressors of biodiversity, such as land clearing and climate change. One of the most effective means of regulating invasive alien species is to prevent their entry by implementing rigorous quarantine measures with strong border controls. Yet, regulators face constant uncertainty with regard to the impact of invasive alien species on biodiversity, and the need to navigate a range of opinions on how best to deal with uncertainty. These difficulties are illustrated by the differing approaches to uncertainty embodied by the World Trade Organization on the one hand …

Anti-Corruption Colonialism, A Policy Discourse Analysis Of International Anti-Corruption Projects, Francisco J. Concepción

Francisco J Concepción

This paper explores the policy discourse attached to anti-corruption law at the international arena and the colonial dimension of that discourse. The discussion will guide us to a new approach on anti-corruption policy and to develop a critical actitude towards the official international discourse on this matter.

Rebates, Subsidies, And Carbon Regulation: The Ascm And Climate Policy, Tristan Brown

Tristan R Brown

In 2009 the United States House of Representatives passed cap-and-trade legislation in the form of the American Clean Energy and Security Act. This legislation may violate certain provisions of the Agreement on Subsidies and Countervailing Measures, to which the United States is a party to. In particular, the legislation may violate the sections of the Agreement prohibiting the allocation of government subsidies to domestic industries. This paper explores the aspects of the legislation that are most likely to violate the Agreement and discusses alternative methods of regulating carbon that are compatible with it.

The Save Our State Amendment And Scotus: Why We Go To Miami, American Society Of International Law Newsletter, David D. Caron

David D. Caron

No abstract provided.

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …

Government Under Party, Party Under Constitution: On The Construction Of Chinese State-Party Rule Of Law Constitutionalism, Larry Cata Backer

Larry Cata Backer

Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context after the structural reforms of Deng Xiaoping and his successors? This paper explores those questions, developing a constitutional theory for states organized on a state-party model. The thesis of the article is this: Chinese constitutionalism presents a coherent and …

Essay: The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd

James Salzman

Over the last several years, so-called “carbon markets” have emerged around the world. These markets trade different types of greenhouse gas credits. In this essay, we take a close look at an unexpected and unprecedented development – premium “green” currencies have emerged alongside and even displaced standard compliance currencies. Past experiences with other environmental compliance markets, such as the sulfur dioxide and wetlands mitigation markets, suggest the exact opposite should be occurring. Indeed, buyers in such markets should only be interested in buying compliance, not in the underlying environmental integrity of the compliance unit. In carbon markets, however, higher quality …

“The Grass That Gets Trampled When Elephants Fight”: Will The Codification Of The Crime Of Aggression Protect Women?, Beth Van Schaack

Beth Van Schaack

This article analyzes the outcome of the Kampala process with an eye toward the rarely-considered gender aspects of the crime of aggression, whether or not the provisions adopted represent an advancement for women, and how aspects of feminist theory might interpret the new regime. The Article concludes that any impact of the provisions will inevitably be limited by gaps and ambiguities in the definition of the crime and the jurisdictional regime, which is premised on state consent and exempts non-states parties altogether. At the same time, the insertion of the crime of aggression in the Rome Statute enables the prosecution …

Jus Cogens As A Vision Of The International Legal Order, Markus A. Petsche

markus a petsche

Based on the observation that the concept of jus cogens is of limited relevance for the actual practice of international law, this article argues that, despite its formal inclusion in the Vienna Convention on the Law of Treaties, jus cogens does not constitute a rule of international law. Instead, it is more appropriately viewed as a statement on, or vision of, the international legal order. As such, it has had, and continues to have, significant impact on the post-Vienna Convention development of international law. Part One of this article establishes the inaccuracy of the general view that jus cogens constitutes …

Judicial Independence In Light Of The Basic Principles On The Independence Of The Judiciary: Who Has The Right Idea?, Ubaid Ul-Haq

Ubaid ul-Haq

Judicial independence is a crucial component inherent in the proper and effective administration of any government. Critical to this doctrine is the larger requirement of a separation of powers, which must be established before attempting to affect any concept of judicial independence. Judicial independence essentially represents a judiciary’s ability to render decisions free of improper influences, both internal and external. The United Nations has set forth a minimum standard of judicial independence with which States should seek to comply in order to protect civil liberties and in a greater sense, human rights. Evaluating the jurisdictions of Canada, Jamaica, and the …

Negotiating At The Interface Of Power & Law: The Crime Of Aggression, Beth Van Schaack

Beth Van Schaack

Negotiating at the Interface of Power & Law: The Crime of Aggression

Beth Van Schaack

Delegates from the International Criminal Court’s Assembly of States Parties, observer states, and non-governmental organizations recently convened in Kampala, Uganda, to hammer out amendments to the Court’s Statute that will lay the groundwork for the eventual prosecution of the crime of aggression. This achievement caps decades of negotiations that began in the post-World War II period. The perennial difficulty of reaching consensus on when and how to prosecute the crime of aggression stems from the recognition that the crime by its nature involves both state …

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Peter G. Danchin

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

The Dangerous Illusion Of International Financial Standards And The Legacy Of The Financial Stability Forum, Cally Jordan

Cally Jordan

In the aftermath of the Asian Financial Crisis, and the criticism directed towards the International Monetary Fund, in particular, for not having seen it coming, the Financial Stability Forum (FSF) was created in 1999 under a mandate from the G7 ministers of finance and central bank governors. The Asian Financial Crisis arose suddenly, spread rapidly and spared neither developed nor developing economies in the region, although some fared much better than others. In retrospect, the causes of the crisis were obvious and the consequences predictable. “Contagion” entered the financial lexicon. Thus the role of the FSF was to promote financial …

Introduction: The New Collective Security, Peter G. Danchin, Horst Fischer

Peter G. Danchin

Whether viewed as a socio-legal project gently civilizing states away from an older politics of diplomacy, deterrence, self-help and legitimate warfare, or as an institutional project establishing a collective security system premised on the rule of law, the primary purpose of the United Nations today remains the maintenance of international peace and security and the abolition of the “scourge of war.” In March 2003, the U.S. and its allies invaded Iraq, a member State of the United Nations, in order to disarm it and change the regime of Saddam Hussein. The war shook the United Nations and leading capitals around …

The Ties That Bind: International Law As Peacemaker, Peter G. Danchin

Peter G. Danchin

Ever since the League of Nations, there has been hope that collective security could be attained by pure international will. Can the present U.N. and worldwide "laws" contain the threats of a post-9/11 society?

Consumer Protection Initiatives In The Eu Mortgage Market: A Behavioral Economics Based Critique And Proposal, Debra P. Stark, Jessica M. Choplin

Debra Pogrund Stark

This article critiques the Commission of the European Union's recent consumer protection initiatives for the EU mortgage market focusing on the revised form of disclosures that the Commission appears poised to mandate in a Directive, providing suggested reforms to this form to make it more effective and proposing four additional consumer protections to empower EU consumers to make wise home loan decisions. The article argues that these additional consumer protections are a necessary condtion to creating the integrated EU mortgage market (with more cross border home loans) that the Commission desires.

Disintermediating Avarice: A Legal Framework For Commercially Sustainable Microfinance, Steven L. Schwarcz

Steven L Schwarcz

Although microfinance has emerged as a key tool to alleviate poverty, the need for microfinance lending vastly exceeds the amount of funds that can be raised from charitable donors. Commercial bank lending is supplementing donor money, but microfinance loans made by banks are expensive and sometimes even exploitive. This article examines how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. In that context, the article identifies and attempts to resolve the resulting law-and-business issues of first impression and also …

A Protocol Against Trafficking In Persons: Is It Enough?, Michelle K. Forrest

Michelle K Forrest

Human Trafficking is a flourishing, criminal business that brings in more than thirty-two billion dollars yearly. This paper will discuss how the trafficking enterprise is difficult to eliminate because of its growing sophistication; unique flexibility and mobility; infiltration of lawful business; lucrative profit; and transnational operation. Potential infringement upon fundamental ideals of American society, such as privacy and liberty, weakens the fight against trafficking. As a result, trafficking has become a grave threat to human rights, the rule of law, and world peace.

This paper examines the current operation of trafficking in Cambodia, a country that supplies individuals for trafficking; …

A New Class Of Persons: Intercountry Adoptees And Postcolonial Theories Of Cultural Hybridity, George R. Waddington

George R Waddington

In A New Class of Persons, I argue that political and scholarly attempts to associate intercountry adoption with western hegemony affirm the paradigm of colonialism that these attempts seek to undermine. Specifically, recent efforts to limit the adoption of poor, non-western children by American or European parents perpetuate imperial views of European cultural and racial superiority. Opponents of intercountry adoption mimic imperial models of power and subordination: they view cultures as distinct entities that operate within a specific national and geographical context and, consequently, can be differentiated and placed within a cultural hierarchy. Far from exploiting developing nations, intercountry adoption …

Fighting Terrorism With One Hand Tied Behind The Back: Delineating The Normative Framework For Conducting The Struggle Against Terrorism Within A Democratic Paradigm, Emanuel Gross

Emanuel Gross

Israel, Aug 2010.

Dear Editor.

I would like to submit my note entitled: Fighting Terrorism with One Hand Tied Behind the Back: Delineating the Normative Framework for Conducting the Struggle against Terrorism within a Democratic Paradigm.

The new age and the globalization process exposed us to many new phenomenons; some are totally unfamiliar, and some are deviate variation of their old version. Terrorism, one of the most despised and rejected phenomenon, can meet both these descriptions. The purpose of this article is to suggest a preference for a democratic state to conduct itself in her struggle against terrorism. The article …

Child Labor In India, A Consumer’S Perspective: Identifying Causes, Acknowledging Realities, And Proposing Incentives For Improvement, Vanessa L. Deniro Esq.

Vanessa L. De Niro

The exploitation of modern child labor in developing countries persists in part because of consumers like us. However, in light of increased global trade liberalization in developing countries and free market principles, cheap labor is what allows these nations to have a competitive edge in the global economy. With that said, a category of people that work longer hours for meager wages, absent unionization or labor protections, is an efficient means of production and justified by the economy of scales. Child laborers, exploited by employers competing in the global economy, are simply a product of laissez-fair economics, participating and contributing …

A High Devolution Region (Hdr): A Community Based Political Solution For Darfur, Ibrahim A. Ibrahim Mr

Ibrahim A Ibrahim Mr

A High Devolution Region (HDR): A Community Based Political Solution for Darfur By/ Ibrahim Ali Ibrahim LLM Sudanese Lawyer & Congressional Researcher Abstract: The main causes of the war in Darfur as the paper highlights lie in both communal conflicts and the imbalance of power between the centre and marginalized regions. Therefore, the power sharing is a valid mechanism for redressing communal conflicts and the years of political marginalization of Darfur. The Darfur Peace Agreement (DPA) demonstrated that there were no powers to share in Darfur and that why it failed. The parties have not been able to achieve peace …

A Mountain Biker Cannot Start A Journey In Sixth Gear: An Assessment Of The U.N. Global Compact’S Use Of Soft Law As A Global Governance Structure For Corporate Social Responsibility, Roya Ghafele

Roya Ghafele

The practical impossibility of employing hard law at an international level has meant that softer codes of conduct have stepped in to fill the void. The Global Compact is the most ambitious of these codes, created with a desire to engage business in the project of international development and thus develop a global governance structure for corporate social responsibility. Soft law instruments, such as voluntary standards and framework agreements have been roundly criticised for being vague and indistinct and creating commitments that may be subjective, tentative and conditional. However, what appears to be lacking in the existing literature is a …

The Object And Purpose Of A Treaty: Three Interpretive Methods, David S. Jonas, Thomas N. Saunders

David S. Jonas

The Object and Purpose of a Treaty: Three Interpretive Methodologies ABSTRACT Within the Vienna Convention on the Law of Treaties, the term “object and purpose” is used eight times but is not defined, and it is now the point of focus in a range of current and momentous international law controversies. This paper examines the Vienna Convention’s three most prominent uses of the term and argues for a more refined understanding of each. First, the rule that a treaty be interpreted “in light of” its object and purpose requires a process of interpretation that oscillates between the specific and the …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

Comparative Efficiency In International Sales Law, Larry A. Dimatteo, Daniel T. Ostas

Larry A DiMatteo

The article employs the method of the economic analysis of law (EAL) in a comparative context. In particular, it assesses the efficiency of select provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is the law of the United States and over 70 other countries. It reflects a culmination of a century-old process of failed attempts to achieve an international sales law. The drafting process involved intense negotiation and compromise between representatives of the common and civil law legal traditions. As a result, the CISG provides in an interesting amalgam of civil …

Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud

Tayyab Mahmud

Many of today’s pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …

A Comparison Of The Income Tax Systems In The United States And Germany: The Rugged Individualist Meets The Social Activist, Walter Schwidetzky

Walter D Schwidetzky

There is more than one road up the mountain. Different countries find different solutions to raising revenues and taxing their citizens. The United States tends to be a bit inbred about tax policy decisions, rarely looking outside of its own borders for answers. Yet other countries may have looked at a given issue and come up with intelligent answers that could helpfully inform U.S. decisions. The converse is, of course, also the case. One of the striking things about doing comparative tax analysis is how differently, but legitimately, different countries can answer the same question. There also times when one …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …

It Takes Two To Tango, And To Mediate: Legal Cultural And Other Factors Influencing United States And Latin American Lawyers' Resistance To Mediating Commercial Disputes, Don Peters

Don Peters

This article examines legal cultural and other factors influencing the resistance displayed by United States and Latin American lawyers to mediating commercial disputes. After surveying current contexts in which commercial mediation occurs in the United States and Latin American countries and summarizing data regarding commercial actors’ knowledge concerning the benefits of mediating, it analyzes the relatively infrequent use of mediation despite knowledge of its potential advantages over adjudicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making …