Law Commons^™

Applicability Of General Exceptions To Wto-Plus Obligations: In View Of Applicability Of Environmental Protection Exceptions In China - Raw Materials, Ying Liu

Ying Liu

This article explores applicability of general exceptions to China’s WTO-plus obligations by means of case study. By offering insights on DSB reports for China – Raw Materials and a critique of their interpretation approach and findings, this article proceeds to discuss the applicability of environmental protection exceptions to export duties commitments in China – Rare Earths and attempts to provide grounds for affirmative arguments. More generally, the two-tier membership and acceding Member’s less-than-equal status of which China’s WTO-plus obligation is an epitome, are by nature inconsistent with the equality value of the WTO. Therefore alternative interpretation approach may be applied …

Problems Of Perception In The European Court Of Human Rights: A Matter Of Evidence?, Anne Richardson Oakes

Anne Richardson Oakes

The “doctrine of appearances” is now an important element of the jurisprudence of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The court derives support for its interpretations from the traditional precept of the common law that “justice must be seen to be done.” However, the formulations of the European Court are idiosyncratic and apparently driven by an asserted perception of an increased public sensitivity in this area. This paper examines these formulations and considers the extent to which judicial principles of procedural fairness require an empirical connection.

Thoughts On The German Constitutional Court Decision On The Esm, Richard Stith

Law Faculty Publications

No abstract provided.

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Maritime Piracy: Changes In U.S. Law Needed To Combat This Critical National Security Concern, Daniel Pines

Seattle University Law Review

Piracy threatens, and has taken, the lives of American crews and civilians. It poses an enormous economic threat, both in terms of ransom payments and impact on global commerce. It enhances political instability in significant regions of the world, such as the Horn of Africa and the Straits of Malacca. Most critically, though, maritime piracy offers an easy and tempting conduit for terrorism. Terrorists have already used maritime options to advance their cause in several dramatic attacks, including the hijacking of a cruise ship (and murder of a Jewish passenger), the ramming of a boat into a U.S. destroyer (killing …

Legal Guardians: Islamic Law, International Law, Human Rights Law, And The Salman Rushdie Affair, Anthony Chase

Anthony Chase

No abstract provided.

A Submission To The New Zealand Government On The Plain Packaging Of Tobacco Products, Matthew Rimmer

Matthew Rimmer

EXECUTIVE SUMMARYThis submission draws upon a number of pieces of research and policy papers on the plain packaging of tobacco products including:1. Becky Freeman, Simon Chapman, and Matthew Rimmer, 'The Case for the Plain Packaging of Tobacco Products' (2008) 103 (4) Addiction 580-590.2. Matthew Rimmer, 'A Submission to the Senate Legal and Constitutional Committee on the Trade Marks Amendment (Tobacco Plain Packaging) Bill (Cth)', September 2011, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=dabfcd75-9807-493f-bc99-4a7506bf493b3A. Matthew Rimmer, 'Tobacco's Mad Men Threaten Public Health', The Conversation, 23 September 2011, http://theconversation.edu.au/tobaccos-mad-men-threaten-public-health-34503B. Matthew Rimmer, 'Big Tobacco's Box Fetish: Plain Packaging at the High Court', The Conversation, 20 April 2012, https://theconversation.edu.au/big-tobaccos-box-fetish-plain-packaging-at-the-high-court-65183C. Matthew …

Providing A Foundation For Wealth For Wealth Creation And Development In Africa: The Role Of The Rule Of Law, John Mukum Mbaku

JOHN MUKUM MBAKU

PROVIDING A FOUNDATION FOR WEALTH CREATION AND DEVELOPMENT IN AFRICA: THE ROLE OF THE RULE OF LAW JOHN MUKUM MBAKU ABSTRACT This paper examines the struggle in Africa to alleviate and eventually eradicate poverty. It is argued that the most effective way for African countries to deal with poverty is to create wealth. Unfortunately, these countries have not been able to create the wealth that they need to confront poverty. This is due primarily to the fact that since independence, these countries have not been able to undertake democratic institutional reforms to create and adopt institutional arrangements that guarantee and …

Hugh Kindred And The Teaching Of International Law In Canada, Don Mcrae

Dalhousie Law Journal

The casebook, International Law, Chiefly as Interpreted and Applied in Canada under the general editorship of Hugh Kindred, which first appeared in 1987, was a milestone in the teaching of international law in Canada. It was an important teaching tool that made international law accessible to students. Seeing international law through the eyes of Canadian practice, Canadian materials and Canadian experience, the book was an introduction to the fundamentals of the field and to the developments and debates of contemporary international law Engaging on the editorial board Canadian academics from different law schools, Hugh Kindred has been able to provide …

Antitrust Regulation Within The European Economic Community, Richard M. Buxbaum

Richard M. Buxbaum

The article presents information on the antitrust regulation within the European Economic Community. The antitrust provisions of the Rome Treaty are quite straightforward. The escape clause in article 85(3), reflecting French insistence on "reasonable" competition, will unquestionably prove to be the keystone to any eventual Community antitrust law. It is so general that its interpretation is unpredictable. An otherwise null and void practice may be approved if it promotes economic progress while reserving to the consumer an equitable share of the resulting advantages, and neither is an unnecessary restriction nor eliminates competition in a substantial part of the relevant market. …

The Emergence Of Private Property Law In China And Its Impact On Human Rights, Mark D. Kielsgard, Lei Chen

Mark D. Kielsgard

ABSTRACT This article investigates the development of private property law in the PRC and its connection to the growth of human rights trends in China. It assesses the vitality of these trends, reviews the relevant historic legal and social background and demonstrates how the introduction of private property in China has fundamentally altered the fabric of its civil society. Drawing upon case studies and statutory analysis, and evaluating them from the perspective of both Chinese and Western scholarship, it analyzes trends driving greater democratic structures by reviewing the self-governance of condominium owners associations and the human rights practices they have …

Pyres, Haircuts, And Cacs: Lessons From Greece’S Restructuring, Nicholas L. Georgakopoulos

Nicholas L Georgakopoulos

Abstract: The restructuring of Greece’s debt offers a clean case study of the dynamics of sovereign restructuring. This essay discusses the powerlessness of sovereign creditors, Greece’s predicament, and the resolution of its insolvency through (a) a two-step refinancing with bond accumulation and value injection and (b) collective action legislation and equivalent clauses. The analysis suggests that a sovereign insolvency regime should grant priority to post-insolvency creditors over pre-insolvency creditors, should allow voting by classes, and should be conditional on the debtor’s continued compliance with reform and supervision.

Implied Waiver Of Sovereign Immunity: The Avenue Not Taken In Jurisdictional Immunities Of The State, Kyle Gerald Potvin

Kyle Gerald Potvin

Absolute immunity of the sovereign state is a relic of the past. The current trend in international law is that exceptions to absolute immunity exist and are increasing in number and scope as evidenced by domestic and international legislation and judicial decisions. Recently, Italy argued that yet another exception to absolute immunity had evolved. They contend that sovereign immunity of a foreign state, in domestic courts, may be abrogated when that state commits violations of jus cogens in the territory of forum state. The International Court of Justice declared in their contentious opinion on the merits that treaty law, customary …

The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson

College of Law - Student Research & Writing Projects

Law and literature comes in two forms: law as literature and law in literature, the latter referring to the exploration of legal issues in great literary texts. Law in literature scholars place a high value on the "independent" view of the literary writers as he or she sees the law. They believe that these authors have something to teach legal scholars and lawyers about the human condition. “The Trial” by Franz Kafka, concerns human beings caught up in social and political dilemmas. Kafka offers readers an insight to the nature of totalitarianism and forces us to ask hard questions about …

The Icc And Victim Participation For Victims Of Gender-Based Crimes - A Conflict Of Interest?, Solange Mouthaan Ms

Solange Mouthaan Ms

The ICC has adopted a system of victim participation, which, although innovative, is also complex and inconsistent. As a consequence the meaningfulness of victim participation is questioned, because of its adverse effects on judicial proceedings, in particular on the task to be performed by the judges. It further creates false expectations for victims. The Lubanga and Bemba trials highlight that victims of gender-based crimes in particular bear the brunt of this approach. The ICC thus faces a challenge to develop a consistent approach to victims in line with its mandate to victims of vulnerable groups. A way forward is to …

Politics And Legal Regulation In The International Business Environment: An Fdi Case Study Of Alstom, S.A., In Israel, Jeffrey A. Van Detta

Jeffrey A. Van Detta

This article identifies and carefully considers the panoply of municipal and international legal issues that arise from a hypothetical Foreign Direct Investment (FDI) by one of the world’s largest Multi-National Enterprises (MNEs). Specifically, the article fleshes out a detailed FDI analytic framework as we considered the hypothesized—yet, entirely plausible—investment by Alstom, S.A., in Israel’s energy sector: joint-venturing with Israel’s Multimatrix, Ltd., to employ Alstom’s world-class wind-power expertise in developing a 75-turbine wind farm on the wind-swept Golan Heights, one of the Occupied Territories.

Among the specific issues addressed are:

1. The political situation in Israel, Syria, and Iran;

2. The …

The Intersection Of Women's Olympic Sport And Intersex Athletes: A Long And Winding Road, Daniel Gandert

Daniel J Gandert

After a victorious performance in the women’s 800 meter event at the 12th International Association of Athletic Federations (IAAF) World Championships in Berlin, the 18-year old runner Caster Semenya was under suspicion of not being female. She was required to undergo sex determination testing, also known as gender testing. While Semenya’s rivals likely found her case to be unique, athletes with similar conditions are not new to international competition and less-than-sensitive handling of such cases has regrettably been the norm in the past.

In May of 2011, and perhaps spurred by the Semenya case, the IAAF announced new eligibility rules …

Changing The Paradigm Of International Criminal Law: Considering The Work Of The United Nations War Crimes Commission Of 1943-1948, Daniel T. Plesch, Shanti Sattler

Daniel T Plesch

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948 by Dr Dan Plesch and Shanti Sattler This article discusses the precedents of the largely forgotten United Nations War Crimes Commission (U.N.W.C.C.) of 1943-1948. The work of this multinational body should be regarded as a source of customary international law. We seek to introduce the U.N.W.C.C. and the thousands of national trials it supported into modern discourse about the development of international criminal justice and argue why they are relevant to current deliberations. The article concludes that the U.N.W.C.C. has been …

Default State Attribution Rather Than Dual Attribution In The Troop-Contributing Context, Osama Almughrabi

Osama Almughrabi

This note discusses Mustafic, a recent Dutch appellate court decision in which the court held the Netherlands responsible for the failure of Dutch peacekeeping troops during the Srebrenika massacre. More specifically, the Dutch court held that both the Netherlands and the UN could be held responsible for the actions of those contributed Dutch troops. However, this note argues that this so-called “dual attribution” applied by the Dutch court is not supported by international law, nor is it likely to become international law in the foreseeable future. Instead, the note proposes an original framework for attributing the conduct of contributed troops, …

Rico's Extraterritoriality, Gideon Mark

Gideon Mark

This article examines the extraterritorial application of the Racketeer Influenced and Corrupt Organizations Act (RICO). Federal courts commonly analyzed RICO’s extraterritoriality prior to 2010 by borrowing from securities jurisprudence. That borrowing entailed application of the “conduct” and “effects” tests used to determine whether federal securities laws applied extraterritorially. In 2010 the United States Supreme Court decided Morrison v. National Australia Bank, which rejected use of the conduct and effects tests and thus overruled four decades of extraterritoriality analysis by federal appellate courts in securities cases. This article examines the conflicting paths courts have taken post-Morrison when confronted with extraterritoriality issues …

Recalibrating After Kiobel: Evaluating The Utility Of The Racketeer Influenced And Corrupt Organizations Act In Litigating Corporate Abuse, Julian Simcock

Julian Simcock

This analysis seeks to explore the un-examined question of whether RICO could one day become a useful surrogate for the Alien Tort Statute (ATS) in litigating against international corporate abuses. Decades after the ATS had become a robust tool for bringing claims for international violations in U.S. courts, the Second Circuit recently ruled in Kiobel v. Royal Dutch Petroleum that corporations cannot be held liable for torts in violation of the law of nations under the ATS. Rulings by the D.C Circuit and the Seventh Circuit quickly breathed new life into the debate, and the circuit split is now destined …

The Importation Of The Rule Of Reason In European Competition Law: The Implications Of Economic And Behavioral Theories And The Case Of Port Services, Davide Maresca

Davide Maresca

The regulation of international markets is nowadays faced with an important debate emerging from the study that started long ago at the Chicago School, passed through behavioral theories, and arrived in the European Union model. Two main theories set against each other concerning the market and antitrust regulation. The first one, law and economics theory, is based on the economic analysis of the costs and benefits of restraint of trade, and justifies a restraint only for economic reasons. The second, behavioral law and economics theory, is based on the empirical analysis of the regulation through instruments taken from social sciences. …

Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford

Scott Shackelford

Views range widely about the seriousness of cyber attacks and the likelihood of cyber war. But even framing cyber attacks within the context of a loaded category like war can be an oversimplification that shifts focus away from enhancing cybersecurity against the full range of threats now facing companies, countries, and the international community. Current methods are proving ineffective at managing cyber attacks, and as cybersecurity legislation is being debated in the U.S. Congress and around the world the time is ripe for a fresh look at this critical topic. This Article searches for alternative avenues to foster cyber peace …

U.S.Foreign Trade Zones, Tax-Free Trade Zones Of The World, And Their Impact On The U.S. Economy, Susan W. Tiefenbrun

Susan W Tiefenbrun

ABSTRACT

U.S. Foreign Trade Zones, Tax-Free Trade Zones of the World, and Their Impact on the United States Economy , by Susan Tiefenbrun

Free trade zones (FTZs) date back to the time of the Phoenicians; they developed in the l970s and proliferated from 1980 until today. FTZs are duty-free areas where goods may be warehoused, processed, sold, serviced, distributed, showcased, packaged, labeled, sorted, assembled, and/or manufactured as finished goods prior to re-exporting them as duty-exempt finished products. More than one 135 countries operate tax-free trade zones. There are more than 3,500 of these zones and subzones all over the world, …

Lincoln's International Law -- Redefining American Exceptionalism, Antonio F. Perez

Antonio F Perez

This paper analyzes Lincoln’s understanding of international law, shows how that understanding flows from the premises from which Lincoln rejected the ruling pre-Civil War understanding of the role of international law in the U.S. Constitution, explains how those premises in turn are grounded in Lincoln’s ethical principles, and draws some tentative conclusions as to the inferences that can be drawn today from Lincoln’s conception of American exceptionalism. First, the essential features of Lincolnian exceptionalism become clear only in the context of a detailed description of the previous ruling conception of American exceptionalism. American exceptionalism, under this theory, focused on institutional …

Restoring The Vote: Former Felons, International Law, And The Eighth Amendment, John Mohammad Ghaelian

John Ghaelian

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child’s school board.

This article begins by chronicling the …

Brazil Begins To Investigate Its Dark Past, But Is It Too Little Too Late?, Thomas Thompson-Flores

Thomas L Thompson-Flores

This article analyzes the history of Brazil, the current legal battle over its Amnesty Law, and finally compares the transitional justice process chosen in Brazil versus other South American countries. An historical background of Brazil from 1964 to the present is given to illustrate the reasons behind the methods chosen by Brazil to implement transitional justice in the country. This historical summary begins with the military’s rise to power in 1964; then discusses the harsh policies implemented by the military in order to maintain its power; the process of democratic transition; and finally the steps taken by Brazil in recent …

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

Jurisdiction Of Arbitration Tribunals In France, Ozlem Susler Ms

OZLEM SUSLER MS

This article relates to international commercial arbitration as it examines the jurisdiction of arbitral tribunals to rule on their own jurisdiction. It reviews arbitral jurisdiction in France by considering the principle of compétence- compétence as applied by its national courts. Although this principle is recognised in the national arbitration laws of many jurisdictions, there are some important differences. For instance, there is divergence in relation to the stage at which judicial intervention occurs and the degree of intervention by courts of different countries. Divergence is also observed in the type of judicial review undertaken by the courts. This article focuses …

Does Justice Always Require Prosecution? The International Criminal Court And Transitional Justice Measures, Elizabeth B. Ludwin King

Elizabeth B Ludwin King

Two provisions of the Rome Statute of the International Criminal Court (ICC), those regarding complementarity and discretion to decline “in the interests of justice,” give the ICC Prosecutor the ability to yield to a state that wants to undertake its own transitional justice program. Given the global preference for the imposition of individual criminal liability for serious international crimes, as evidenced by the creation of the ICC, it is highly likely that most such programs will involve prosecution. This Article asks whether the ICC Prosecutor might step aside when faced with a state that favors other mechanisms of accountability and …