Law Commons^™

The Universal Declaration And Developments In The Enforcement Of International Human Rights In Domestic Law, Michael P. Van Alstine

Michael P. Van Alstine

No abstract provided.

Die Eg-Uebernahme-Richtlinie Im Lichte Der Erfahrungen In Den Usa, Michael P. Van Alstine

Michael P. Van Alstine

No abstract provided.

The Death Of Good Faith In Treaty Jurisprudence And A Call For Resurrection, Michael P. Van Alstine

Michael P. Van Alstine

This article addresses the absence of the venerable doctrine of good faith interpretation, as well as its companion “liberal interpretation canon,” from modern Supreme Court treaty jurisprudence. Although scholarly accounts suggest that the spirit is still alive, the article demonstrates that the doctrine was silently interred by the Supreme Court early in the last century. From all appearances, the disappearance of good faith from treaty jurisprudence was not by design. Nonetheless, the article demonstrates that even such an unintended drift can have serious negative consequences. In the context of treaty jurisprudence, the consequence of the departure of good faith interpretation …

Affirmative Action And International Law, Maxwell O. Chibundu

Maxwell O. Chibundu

The use of the conjunction 'and' rather than the preposition 'in' in the title of this essay is intended to convey both the descriptive limitations of the subject matter as well as the breadth of its potentialities. International law and its practitioners have devoted little attention to issues of affirmative action and currently dominant epistemic trends do not suggest any significant shift in focus occurring soon. By contrast, municipal proponents of affirmative action in countries such as the United States, embattled as they are in defending an increasingly controversial policy, have tried to bolster their arguments by reference to international …

Law In Development: On Tapping, Gourding, And Serving Palm-Wine, Maxwell O. Chibundu

Maxwell O. Chibundu

No abstract provided.

Globalizing The Rule Of Law: Some Thoughts At And On The Periphery, Maxwell O. Chibundu

Maxwell O. Chibundu

No abstract provided.

Intervention, Imperialism And Kant's Categorical Imperative, Maxwell O. Chibundu

Maxwell O. Chibundu

No abstract provided.

The Other In International Law: 'Community' And International Legal Order, Maxwell O. Chibundu

Maxwell O. Chibundu

There is a built-in paradox in the emergence of international law over the last decade as a core concern of academics and policy-makers. On the one hand, it is difficult to imagine any other period in history that has witnessed such a profusion of attempts to tame the anarchical society by hedging it in a straight-jacket of legalities. Throughout the 1990s, international conferences generated reams of treaties, codes, and agendas for action. International adjudicatory tribunals proliferated, and endeavored to give teeth to ideas and obligations hitherto thought to be essentially aspirational. And yet, the ability of international law to regulate …

Making Customary International Law Through Municipal Adjudication: A Structural Inquiry, Maxwell O. Chibundu

Maxwell O. Chibundu

No abstract provided.

Recognition Of Palestinian Statehood: A Clarification Of The Interests Of The Concerned Parties, Winston Nagan, Aitza Haddad

Winston P Nagan

This paper reviews the history of the claims to statehood and sovereignty of the Palestinian people, from the period of the League of Nations mandate to the current move to secure UN approval of a Palestinian State. The article examines the claims to statehood in international law and examines the problem in the broader context of claims about human rights and humanitarian violations, the Israeli claims to security and legitimacy and the US claims for its mediation goal to ensure that the problem does not descend into a legal vacuum in which the fundamental interests of all parties in security …

International Courts And Tribunals: Their Roles Amidst A World Of Courts, David D. Caron

David D. Caron

No abstract provided.

The Ambiguity Of Cyber Attacks In International Law, Anthony Rodin

Anthony Rodin

A new family of weaponry has manifested itself in recent years in the realm of cyberspace. Though they rarely cause physical damage, cyber attacks can have debilitating effects on their targets and are becoming more common. As the weapons become more advanced and destructive, their legitimacy vis existing jus in bello and jus ad bellum international law regimes remains unclear. Attempts to rectify this problem are either overbroad or simply impossible. This article reviews the history and development of cyber attacks and the responses they have triggered. It argues that cyber attacks are sui generis weapons and should not be …

International Law And Transnational Corporations: Towards A Final Summation, Varun Vaish

Varun Vaish

The regulation of transnational corporations (TNCs) by an international legal order fundamentally centred on states proves to be difficult when they exercise political influence and have the ability to generate revenue which can eclipse the economies of many countries in comparison. According to the World Investment Report 2007, as of 2006 there were 78,411 parent corporations and 777,647 affiliates worldwide.4 The scale of the concentration of economic power is illustrated by the statistics: of the world’s hundred largest economic entities, 51 are multinational companies and 49 are nation states. The Texaco Corporation functioned for years in Ecuador with annual global …

How The Second Circuit Eviscerated The Alien Tort Statute: Kiobel V. Royal Dutch Petroleum Co., Scott E. Allbright Jr

Scott E Allbright Jr

No abstract provided.

Protection Of Traditional Knowledge: Trade Barriers And The Public Domain, David R. Hansen

David R Hansen

Contemporary International Law Issues In The Asia Pacific: The Importance And Challenge Of The Difference Between Principles And Rules In International Law, David D. Caron

David D. Caron

No abstract provided.

Marine Mammals And International Trade: Balancing Social Conscience With Trade Obligations – A Summary And Update On The World Trade Organization Seal Products Dispute, Chad J. Mcguire

Chad J McGuire

The Interplay Between U.S. Statutory Rights And Public Policy Under The Faa And New York Convention In International Disputes, Daniel Schwarz

Daniel M. Schwarz

The “prospective waiver” doctrine allows U.S. courts to invalidate or sever arbitration clauses in otherwise valid agreements to arbitrate where arbitrating under foreign law would prevent a U.S. party from seeking relief under a U.S. statute. The loss of this opportunity is said to affront U.S. public policy. This paper acknowledges that courts’ application of this idea has resulted in the need for a more fundamental revisiting of the question of whose law should be “mandatory” in international arbitration. But more specifically, this paper proposes appropriate sets of factors for pre-arbitration courts, arbitrators, and post-arbitration enforcement courts to consider in …

The Anthropocene, Autopoiesis And The Disingenuousness Of The Genuine Link: Addressing Enforcement Gaps In The Legal Regime For Areas Beyond National Jurisdiction, Rosemary Rayfuse

Rosemary Rayfuse

The Earth has entered the anthropocene era; the era in which human activities have begun to have a significant global impact of the Earth’s climate and ecosystems. Covering more than 60% of the Earth’s surface, the oceans comprise a complex, dynamic and vast component of the Earth’s ecological system, second in size only to the global atmosphere. The oceans are a major provider of ecosystem services, food, mineral and other resources, and a major medium for global transportation and communication. Nevertheless, while once thought inexhaustible, unlimited and capable of supporting any human activity or use, it is now clear that …

Iron Ocean Fertilization And International Law, David Freestone, Rosemary Rayfuse

Rosemary Rayfuse

Intentional ocean fertilisation and the commercial sale of associated carbon offsets raise a number of issues in international law. On the one hand states are obliged to adopt adaptation and mitigation measures to prevent dangerous climate change. On the other hand, international law obliges states to protect and preserve the marine environment and to act in a precautionary manner in the face of scientific uncertainty. This article examines the application of the international law of the sea to ocean fertilisation, with particular reference to the dumping regime which prohibits the dumping of wastes or other materials from vessels into the …

Warm Waters And Cold Shoulders: Jostling For Jurisdiction In Polar Oceans, Rosemary Rayfuse

Rosemary Rayfuse

In May 2008 the five Arctic coastal states adopted the Ilullisat Declaration in which they asserted their role as stewards, for the international community, of the Arctic Ocean ecosystem. This paper discusses the legal basis for their claim to stewardship with particular reference to the high seas portion of the central Arctic Ocean, and their assertion that no need exists for a new comprehensive legal regime in respect of those high seas waters. It is argued that while the high seas regime of the Arctic may be extensive, it is not comprehensive. Thus, the legitimacy of the claim to stewardship …

Australia And Climate Change Diplomacy: Towards A Post-2012 Regime – Policy Proposals On Australia’S Climate Change Diplomacy, Rosemary Rayfuse, Shirley Scott

Rosemary Rayfuse

A workshop on Australia and Climate Change Diplomacy: Towards a Post-Kyoto Regime (the Workshop) was held at the Faculty of Law, University of New South Wales on 22-23 November 2007. The purpose of the Workshop was to evaluate Australia’s past and current climate change diplomacy and to make policy recommendations for the future. The interdisciplinary Workshop brought together 19 leading experts in economics, science, international relations, law, and business. The majority were academics, but the group also included private consultants and NGO representatives from Australia with one visitor from China. The Workshop was organised and hosted by Associate Professor Rosemary …

Regional Allocation Issues Or Zen And The Art Of Pie Cutting, Rosemary Rayfuse

Rosemary Rayfuse

Regional Fisheries Management Organisations (RFMOs) have increasingly become the mechanism of choice through which high seas fisheries are to be managed. How these organisations allocate fishing opportunities for the dwindling resources under their jurisdiction is, however, a difficult and often controversial issue. Achieving equitable, scientifically reliable and sustainable allocations as between members and as between members and non-members has serious implications for the operational efficacy and legitimacy of an RFMO and its management regime. This paper examines the allocation practices adopted in RFMOs in the context of the tension between state sovereignty and the development of rules of international law …

Antisemitism In The Academic Voice: Confronting Bigotry While Protecting Free Speech, Kenneth Lasson

Kenneth Lasson

ANTISEMITISM IN THE ACADEMIC VOICE Confronting Bigotry While Protecting Free Speech By Kenneth Lasson * Abstract Among the abuses of the academic enterprise that have been taking place in American universities over the past several decades, and continue to this day, are failures of intellectual rigor: the abandonment of reliance on facts, common sense, and logic in the pursuit of narrow political agendas – which all too often presented in the academic voice. Students today increasingly find themselves confronted by curricula manipulated by scholarly extremists. While the number of overt antisemitic incidents has declined markedly in the United States over …

Quo Vadis Wto? The Threat Of Trips And The Biodiversity Convention To Human Health And Food Security, Kojo Yelpaala

Kojo Yelpaala

Abstract Just a few years following the coming into force of the World Trade Organization (WTO) and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreements, the risks they posed to human health and food security became self-evident. This problem has been acknowledged by the WTO in the Doha Declaration, by other United Nations Organs and commentators. Joined at the hip the WTO and TRIPS system, as implemented, seems to have aggravated the severe and debilitating disease burden and food insecurity of many of its member developing countries that existed prior to TRIPS. Although the WTO and its Council …

Binding The United Nations, Anastasia M. Telesetsky

Anastasia M Telesetsky

One of the gaps in the International Law Commission’s Draft Articles on the Responsibility of International Organizations is any discussion of mechanisms for judicially reviewing responsibility of international organizations such as the United Nations. This article explores what judicial mechanisms exist to review actions or omissions which might implicate international legal responsibility of the United Nations and its specialized agencies.

The article explores two options under the International Court of Justice Statute for enhancing UN judicial accountability: (1) amending Article 34 of the International Court of Justice Statute or (2) providing for an international agreement requiring the UN to submit …

The Psychic Costs Of Violating Corruption Laws, Philip Nichols

Philip M. Nichols

Understanding corruption is imperative for legal scholarship, both as an intellectual subject and because corruption impedes the operation of law in much of the world and inflicts damage on well-being, governance and quality of life. Legal scholars have contributed substantial quantitative research; this paper adopts a qualitative methodology. The similarities and differences between Singapore and Malaysia present opportunities for research. Interviews with discussants in those two countries indicate a real difference in the degree to which corruption laws have been internalized. Differences in the degree of internalization suggest differences in the psychic costs imposed by violation of corruption laws. Discussions …

Victimhood And Perpetration In Gaza: Contextualizing Israel's War Crimes During Operation Cast Lead, John F. Engers

John F Engers

Between December of 2008 and January of 2009, the streets and buildings of the Gaza strip appeared less like a city and more like the ghostly ruins of an urban battle zone. Three weeks of rocket and mortar fire, incendiary chemicals, and aerial bombardments had decimated the infrastructure and left thousands of civilians dead or injured. The destruction was the result of Israel’s “Operation Cast Lead,” which was purported to be a defensive response to Hamas’ rocket fire directed at the civilian infrastructure of Southern Israel. Soon following the conclusion of the operation, the international community began to voice concerns …

Binding The United Nations: Compulsory Review Of Disputes Involving Un International Responsibility Before The International Court Of Justice, Anastasia M. Telesetsky

Anastasia M Telesetsky

One of the gaps in the International Law Commission’s Draft Articles on the Responsibility of International Organizations is any discussion of mechanisms for judicially reviewing responsibility of international organizations such as the United Nations. This article explores what judicial mechanisms exist to review actions or omissions which might implicate international legal responsibility of the United Nations and its specialized agencies. The article explores two options under the International Court of Justice Statute for enhancing UN judicial accountability: (1) amending Article 34 of the International Court of Justice Statute or (2) providing for an international agreement requiring the UN to submit …

Law And Venture Capital: The Case Of Japanese Entrepreneurs, Zenichi Shishido

Zenichi Shishido

The biggest difference in the incentive bargains made in the venture capital industries in the US and Japan is that American entrepreneurs abandon control while Japanese entrepreneurs do not. Years ago, this difference was thought to be caused by a lack of liquid IPO markets by some experts in the field. However, there are currently multiple liquid IPO markets in Japan, yet Japanese entrepreneurs are still reluctant to abandon control of their companies to venture capitalists. While there are likely to be many complementary reasons for this difference, it can be partly explained by the different legal systems in the …