Law Commons^™

The Inter-American System And The Protection Of Indigenous Peoples’ Rights (Spanish)., Giovanna E. Gismondi

Giovanna E. Gismondi

The present article underscore the role of the Inter-American Commission and the Inter-American Court of Human Rights in regards to the protection of the rights of indigenous communities, including their right to lands, natural resources and a healthy environment. In this regard, the intervention of the human rights organs of the Organization of American States (OAS), has had a positive impact on the laws and policies of Latin American countries towards the protection of indigenous peoples' rights. The article discusses four cases that set the standards of the legal protection of indigenous communities within the Inter-American System for the protection …

They Fought For Trade But Did Trade Win?: An Analysis Of The Trends Among Trade Disputes Brought By Wto Member States Before The Wto Dispute Resolution Body, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: They Fought for Trade But Did Trade Win?: An Analysis of the Trends Among Trade Disputes Brought By WTO Member States Before the WTO Dispute Resolution Body.

Alexandra R. Harrington, Esq.

Much has been made of the common assumption that crime and bad conduct does not pay, particularly on the level of international crimes and criminal conduct. However, the field of bad conduct in international trade is not as frequently discussed. What does a study of the outcomes of complaints brought before the WTO’s dispute resolution body tell us about the uses of that entity for the promotion of …

Egypt’S Supreme Administrative Court Denies Constitutional Rights To Bahá’Í Religious Minority, Karlijn Van Der Voort

Karlijn Van der Voort

No abstract provided.

Fighting Terrorism In The Middle East: A Middle Eastern Perspective, Mohamed R. Hassanien

Mohamed R. Hassanien Dr.

September 11 terrorist attacks ignited global interest in the Muslim world; hence the region has turned to be of a primary concern for the international community, with the national security bolted to the forefront of the American foreign policy and the rest of the world as well. six years after the attacks on New York, Pennsylvania and Washington, DC, American perspective has been the prevailing one in most of the writings about International law and terrorism. However, Middle Eastern approach towards international terrorism needs to be carefully explored in the light of the globalization that takes place everywhere.Winning the war …

State Of Necessity And Peremptory Norms In International Investment Law, Jorge E. Vinuales

Jorge E Vinuales

It is usually assumed that peremptory norms have only a “limiting effect” with respect to the State of Necessity defence (“Necessity”), as characterized by article 25 of the International Law Commission’s Articles on State Responsibility (“ILC’s Articles”). Indeed, Necessity cannot be invoked to justify a violation of a peremptory norm of international law. This article contends that this assumption reflects an incomplete understanding of the impact of peremptory norms on the development of public international law. Specifically, we argue that peremptory norms have not only a limiting effect, but also what we call an “excusing effect,” when the essential interests …

Constraints On The President's Power To Interpret Common Article Three Of The Geneva Conventions, Heather Sensibaugh

Heather Sensibaugh

This paper explores whether the President has authority to violate customary international law norms prohibiting outrages upon personal dignity, in particular humiliating and degrading treatment by his own interpretation in the form of an executive order pursuant to the Military Commissions Act of 2006. This article argues that, in interpreting the MCA, the President is bound to comply with definitions provided by Congress and where no definitions are specified. The President’s interpretive authority is constrained by customary meanings of Common article 3 of the 1949 Geneva Conventions.

Governance Of Markets In The United States And The European Union: A Comparative Survey Of Sec Regulation Nms And The Eu Markets In Financial Instruments Directive, Linda Jeng-Braun

Linda Jeng-Braun

Regulation NMS and MiFID were proposed in the U.S. and the EU, respectively, in the same year of 2004 and are dramatically changing U.S. and EU securities market infrastructure and practices. They possess a large number of similarities and address common issues that markets and regulators are facing on both sides of the Atlantic. Through an examination of Regulation NMS and MiFID, this Article conducts a themed comparison of the governance of securities markets in the U.S. and the EU by history, regulatory governance and supervisory developments, market infrastructure issues of fragmentation and transparency, and long-term consequences for market participants. …

The Transatlantic Divide Over The Implementation And Enforcement Of Security Council Resolutions, Daniel S. Meyers

Daniel S Meyers

American and European governmental institutions adopt vastly divergent approaches to the implementation and enforcement of targeted sanctions adopted by the United Nations Security Council under Chapter VII of the Charter of the United Nations. In Europe, targeted sanctions mandated under Chapter VII of the Charter are regarded as absolute obligations outside the reach of local due process constraints. In America, by contrast, such Chapter VII measures are regarded as mandatory obligations only to the extent that they are consistent with domestic law. As a consequence, a commonly held belief -- that in the "war" on terror, American institutions are more …

The Rise Of Customary Businesses In International Financial Markets: An Introduction To Islamic Finance And The Challenges Of International Integration, Ali A. Ibrahim

Ali A Ibrahim

This paper demonstrates theoretical foundations of Islamic finance and their correlation with the Islamic finance industry. In this respect, the paper presents an over-all survey of the Islamic finance industry, Islamic-law injunctions pertaining to Islamic finance, quasi regulatory institutions, financial engineering, transaction structures and the evolving practices. The paper also highlights various areas of further research, a comprehensive treatment of which is critical to the continuing growth of Islamic finance in the international financial markets.

Trading Spaces: Lessons From Nafta For A Robust Investment Dispute Settlement , Mohamed R. Hassanien

Mohamed R. Hassanien Dr.

Arab leaders- in their last Summit held in Riyadh - have responded to many voices which called on Arabs to embark on their economic integration. In this summit, Arab leaders gathered to make some headway in the problems besieging the Middle East. Throughout this paper, I have tried to point out that, First and foremost, establishing an investment chapter in the GAFTA is quite essential, building on the current provisions of the Intra-Arab investment agreement signed in 1982 and drawing on the experiences of NAFTA. GAFTA may have a robust investment dispute mechanism which would secure GAFTA as an ambitious, …

Genocide And Jurisdiction: Methods For Achieving Justice Domestically For The International Crimes In Darfur, Matthew N. Thomas

Matthew N. Thomas

The international community as a whole has been reluctant to take action against Sudan for the international crimes being committed in Darfur. However, individual nations, including the United States, have expressed a strong interest in taking proactive measures to achieve justice for those atrocities. Victims of the Sudanese conflict may achieve justice through the domestic courts of the United States. Civilly, the Alien Tort Statute provides a cause of action to foreign citizens for torts committed against them in violation of international law, while the exceptions to the Foreign Sovereign Immunity Act permit personal jurisdiction over individuals acting on behalf …

Capitalization Of The Nile, Arthur M. Ortegon

Arthur M. Ortegon

No abstract provided.

Towards A Scientific Standard For The Admissibility And Evaluation Of Psychiatric Evidence In War Crimes Prosecutions, Matthew J. Madalo

Matthew J Madalo

"Towards a Standard for the Admissibility and Evaluation of Psychiatric Evidence in War Crimes Prosecutions" explores the nature and use of psychiatric/psychological defenses and evidence in war crimes prosecutions. Part I of the article focuses on the differing goals and overlapping concerns between psychiatry and the law. In the international criminal legal context, the discussion will center on the types of psychiatric evidence and defenses that have been used or are likely to be used in war crimes prosecutions. Part II analyzes the applicable ICTY, ICR and ICC Statutes, Rules of Procedure and Evidence, and relevant United States common law …

Joint Development Of Offshore Energy Resources In East Asia, Suk Kyoon Kim

Suk Kyoon Kim

Disputes over offshore energy resources in disputed waters in East Asia are increasingly becoming a source of conflicts in the region. However the growing needs for energy resources led to joint development in the disputed waters. In the absence of mutually agreed maritime boundaries joint development might be the best practical way to develop offshore energy resources, while not prejudicing each others’ claims. A wide range of issues such as legal, financial, contractual, operational, international problems may arise from joint development. This article discusses prospect and issues of joint development of offshore energy resources in East Asia.

Report On The Resolution Of Outstanding Property Claims Between Cuba & The United States, Michael J. Kelly, Patrick J. Borchers, Erika Moreno, Richard C. Witmer, James S. Wunsch, Arthur B. Pearlstein

Michael J. Kelly

This commissioned report to USAID outlines two models for resolution of property claims between Cuba and the United States: (1) a bilateral tribunal that will apply international law for the claims of those who were U.S. nationals at the time of the taking, and (2) a special claims court within the Cuban judiciary that will apply Cuban law based on the Spanish Civil Code for the claims of those who were Cuban nationals at the time of the taking. The report includes a complete audit of FCSC files for American claimants, an extensive review of the property claims systems employed …

Getting Under Your Skin--Literally: Rfid In The Employment Context, Marisa Anne Pagnattaro

marisa pagnattaro

This article explores the legal ramifications of the use of radio frequency identification chips (“RFID”) by employers. RFID is an automated data-capture technology that can be used to identify, track and store information contained on a tiny computer chip, which uses electromagnetic energy in the form of radio waves to communicate information. These chips can be implanted under an employee’s skin, worn in an employee’s clothing or in an identification badge. Part I presents a brief history of RFID, as well as novel and interesting uses in the workplace. This section also discusses security and safety concerns regarding the use …

High Crimes On The High Seas, Marva J. Wyatt

Marva J Wyatt

The growth of the modern cruise industry over the past twenty five years and the corresponding increase in the numbers of Americans engaging in cruise travel warrants scrutiny of this multi billion dollar industry. The standard of care required of modern ocean common carriers has evolved from a very high standard of care approaching strict liability to one of ordinary care requiring a showing of actual notice of a dangerous condition. Serious crimes aboard these predominantly foreign flagged ships, which make up the fleets of recognizable names like Carnival, Princess, and Royal Caribbean, are increasing as the numbers of passengers …

Efficiency And Effectiveness In Securities Regulation: Comparative Analysis Of The United States Competitive Regulatory Structure And The United Kingdom’S Single Regulator Model, Joseph Silvia

Joseph Silvia

Efficiency and Effectiveness in Securities Regulation: Comparative Analysis of the United States Competitive Regulatory Structure and the United Kingdom’s Single Regulator Model Does the form of regulatory institutions impact the efficiency and effectiveness of the regulatory structure? While the current status of the multi-level/multi-functional regulatory structure in the United States (US) has developed over many years, the recent adoption of a single regulator structure by the United Kingdom (UK) offers us opportunity to test the impact of form on substance. To what extent does each system efficiently and effectively monitor and enforce the regulations of the financial markets? This paper …

Emerging Market Competition Policy: The Brazilian Experience, Joseph Silvia

Joseph Silvia

Abstract: Emerging Market Competition Policy: The Brazilian Experience Brazilian competition policy has developed over decades into a policy system that has allowed Brazil to lead South American nations in generating economic growth and sustainability, as well as the development of a “fully functioning market economy” in Brazil. The Brazilian Competition Policy System regulates merger control, competitive behavior among Brazilian firms, antitrust issues, and economic stability within regulation. Brazil’s policies have been crucial to the nation’s development from mostly state-owned enterprise and government interference in the markets after World War II. Brazil’s status as an emerging economy has also required that …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Aaron Schwabach

The article is intended as a counterpoint to the all-too-frequent portrayal of China as the world’s leading violator of intellectual property rights. In fact, by many measures China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China’s size. When figures are adjusted for population, China’s rates of intellectual property violation are lower than those of many other countries, including the United States. The article first looks at examples of the current round of political and media China-bashing. It then examines …

Changes In Modern Military Codes And The Role Of The Military Commander: What Should The United States Learn From This Revolution?, Victor M. Hansen

Victor M. Hansen

This article examines the renewed interest which legal scholars, courts, and practitioners are giving to military justice. In light of this heightened interest, there have been a number of calls to reform the Uniform Code of Military Justice. Specifically, there is pressure to change and reduce the role of the military commander in the justice system. This pressure for change comes in part due to the changes made in the military codes of the United Kingdom and Canada, two countries which share a common tradition with the United States. The overall effect of these changes has been to significantly reduce …

The Perfect Storm? International Trade In American-Style Tort Litigation, David L. Wallace

David L. Wallace

No abstract provided.

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

New Patent Regime In India: Challenges And Future Of The Pharmaceutical Industry, Shashi Sharma

Shashi Sharma

No abstract provided.

Rubin V. The Islamic Republic Of Iran - A Struggle For Control Of Persian Antiquities In America, James A. Wawrzyniak

James A Wawrzyniak Jr

This paper analyzes the multi-jurisdictional attachment and execution proceedings taking place sub nomine Rubin v. The Islamic Republic of Iran. The Rubin litigation raises novel issues in the areas of art law and foreign relations. The first section of the paper evaluates whether third parties have standing to raise a sovereign state’s immunity under the Foreign Sovereign Immunities Act (“FSIA”). The second delves into the particulars of the commercial use exception to the FSIA. The final section considers various provisions of the Terrorism Risk Insurance Act of 2001, a new law with little judicial gloss. These three main issues are …

The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren F. Redman

Lauren F Redman

This paper examines the emergence of art and antiquities restitution cases being brought in U.S. federal courts under the FSIA. The purpose of the paper is twofold. First, it aims to serve as a compendium of the major art and antiquities restitution cases brought under the FSIA up to this point. In addition, it examines several questions concerning the appropriateness of the FSIA being used in the way it has been in the context of the art cases. Have the jurisdiction granting provisions springing from the exceptions to the FSIA eclipsed the primary purpose of foreign sovereign immunity, which is …

Litigating Canada-U.S. Transboundary Pollution: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Shi-Ling Hsu, Austen Parrish

Shi-Ling Hsu

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of interna-tional law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Stronger Trade Or Stronger Embargo: What The Future Holds For United States-Cuba Trade Relations, Michael D. Margulies

Michael D Margulies

This paper provides an analysis of the history, politics, legislation and current state of affairs of United States-Cuban trade relations. Beginning with the political climate and events that have led to the existing and limited trade relations between the two countries, the article proceeds to identify the possibility for enhanced trade. The subject of the existing legislation is important in its own right and may serve as an indicator of what potential exists for future U.S.-Cuban relations. Though such a relationship may prove to be economically beneficial for both the U.S. and Cuba, there is much more at stake from …

Horizontal Human Rights Law, John H. Knox

John H Knox

One of the most controversial issues in human rights law today is whether it should place duties on individuals, corporations, and other private actors. The usual view of human rights law is that it applies vertically, to protect individuals from governments. Increasingly, however, that view is coming under attack. A UN special rapporteur has drafted a Declaration on Human Social Responsibilities, which would set out duties on all individuals, and a UN body of independent experts has adopted Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, which would set out duties on …