Law Commons^™

Rwanda: No Conspiracy, No Genocide Planning ... No Genocide?, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Did Press Freedom Win A Medal? The Future Of Foreign Journalism In China, Matt Halling

Matt Halling

This paper addresses the future of foreign journalism in China in the wake of the new liberalizing press regulations created for the 2008 Olympics which were made permanent in October, 2008. Despite hope for a more open foreign press in China, the paper argues that the new regulations as applied have largely institutionalized the existing reality.

Part I discusses human rights instruments relevant to freedom of the press in order to determine whether China’s current regulations facially comport with international human rights law. Part II of this paper discusses China’s historical treatment of foreign journalists and analyzes the substance of …

Editorial, Smart Rules Uphold System, James Kelly

Patrick Kelly

No abstract provided.

Some Thoughts On Achieving U.S. Compliance With International Obligation To Inform Other Nations About Arrest Of Their Citizens, Talbot D'Alemberte

Talbot D'Alemberte

The Avena decision against the United States by the World Court again tarnishes the reputation of the United States in the international human rights community but some relatively simple steps could bring this country into compliance with its treaty obligations to inform foreign nationals of their rights under the Vienna Convention on Consular Relations.

The article suggests that private economic action might be effective yet, to avoid that step, the problem can be corrected through legislation, through use of Miranda warnings and through notice given at arraignment.

Between Rogues And Liberals: Towards Value Pluralism As A Theory Of Freedom Of Religion In International Law, Peter G. Danchin

Peter G. Danchin

No abstract provided.

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Clitoridectomy And The Economics Of Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Is Labor Really "Cheap" In China? Compliance With Labor And Employment Laws, Marisa Anne Pagnattaro

marisa pagnattaro

Abstract: This article details China’s the growing body of labor and employment laws. Specifically, this research analyzes major labor and employment law developments in China, including the newly adopted Labor Contract Law, employment discrimination sexual harassment, wages, workplace health and safety, worker privacy, and dispute resolution. The ramifications of this developing legal landscape on U.S. companies doing business in China are also discussed.

Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe

Matthew W. Wolfe

United States Supreme Court Chief Justice John Roberts describes the American judiciary as the envy of other constitutional democracies. But in one respect, the judiciary apparently trails others: judicial pay. Citing higher salaries of judges in other countries, Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito have all argued that inadequate judicial pay leads to a decline in judicial performance and quality. Judicial pay advocates apparently make these comparisons to emphasize that low judicial salaries “threaten” judicial quality and independence or, alternatively, that high judicial salaries “ensure” quality and independence. But the argument is incomplete, relying upon …

On Breaking Patents: Separating Strands Of Fact From Fiction Under Trips, Cynthia M. Ho

Cynthia M Ho

This article provides the first comprehensive analysis of when compulsory licensing of patents is permissible as a matter of international law under the Agreement of Trade-Related Aspects of Intellectual Property (TRIPS). Thailand’s recent compulsory licenses of patents on a variety of medications provide a convenient vehicle to analyze the limits of compulsory licensing under TRIPS. Thailand’s actions are unique; most countries hesitate to issue compulsory licenses in the wake of legal uncertainties regarding TRIPS requirements as well as political pressure. This article capitalizes on the many issues involved in Thailand’s licenses to provide an authoritative interpretation of the scope of …

The Next, Small, Step For Mankind: Fixing The Inadequacies Of The International Space Law Treaty Regime To Accommodate The Modern Space Flight Industry, Brian J. Beck

Brian J Beck

Since man’s first foray into space flight in 1958, the world has greatly changed. Early space law treaties were created for a world where nations looked to travel to the moon and beyond, two hostile superpowers gave rise to the danger of a weaponized outer space, and space travel was too expensive for anyone but the world’s richest governments. This article argues that the current space law treaty regime, negotiated in the late 1960s and early 1970s, is inadequate to handle the challenges of space flight in the next decade. These challenges include commercial space flight and its attendant concerns, …

Toward An Identity Theory Of International Organizations, Sungjoon Cho

Sungjoon Cho

Toward an Identity Theory of International Organizations

Abstract

Today, we live in an era of international organizations (IOs). With more than two hundred IOs existing, they touch our everyday lives, ranging from air travel to flu shots. Such paramount significance notwithstanding, conventional international relations (IR) theories, such as realism, have failed to take IOs seriously. Conventional IR scholars view an IO as nothing but passive machinery created and controlled by states for their functional need. Under this position, while an IO may facilitate inter-state cooperation and reduce transaction costs, it would never have a life of its own. Conventional IR …

Veiled Impunity: Iran's Use Of Non-State Armed Groups, Keith A. Petty

Keith A. Petty

Iran’s use of non-state armed groups is a key component of its foreign policy, and is more sophisticated than the blunt use of force against other States. As such, this strategy is deceptively threatening to the territorial integrity and political independence of the target States who host groups such as Hezbollah, Mahdi’s Army, and Hamas. Under traditional interpretations of the jus ad bellum, indirect aggression can be attributed to sponsor States if it is comparable to the direct use of force by a State, or if the State is substantially involved in the armed group’s attack. That Iranian support is …

Troubled Indictments At The Special Court For Sierra Leone: The Pleading Of Joint Criminal Enterprise And Sex-Based Crimes, Cecily E. Rose

Cecily E. Rose

This article argues that the indictments at the Special Court for Sierra Leone have pleaded joint criminal enterprise and sex-based crimes in ways that threaten the rights of the accused to notice of the charges against them. While the Taylor Indictment neglects to outline the purpose of the joint criminal enterprise in which the accused allegedly took part, the Prosecution’s recent arguments in this respect have further confused the matter. In addition, the RUF and AFRC Indictments alleged forced marriage without clearly indicating what crime such conduct would violate. Although the Appeals Chamber provided guidance on the issues of joint …

Boumediene V. Bush And Guantánamo, Cuba: Does The "Empire Strike Back"?, Ernesto A. Hernandez

Ernesto A. Hernandez

Focusing on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantánamo Bay, Cuba, this article argues that the base’s legal anomaly heavily influences “War on Terror” detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantánamo but retains “complete jurisdiction and control” for an indefinite period; while Cuba has “ultimate sovereignty.” Gerald Neuman labels this as an anomalous zone with fundamental legal rules locally suspended. The base was chosen as a detention center because …

Complexity As A Catalyst Of Market Failure: A Law And Engineering Inquiry, Steven L. Schwarcz

Steven L Schwarcz

This article examines how the complexities of modern investment securities and the assets underlying them can trigger a breakdown of financial markets and also analyzes what should be done to mitigate the potential for market failure. Because these complexities are characteristic of complexities in nonlinear engineering systems, the article’s analysis draws on the literature analyzing these systems.

Mutual Recognition Based On Substituted Compliance: An Integral Component Of The Sec’S Mandate, Cheryl C. Nichols

Cheryl C. Nichols

The U.S. Securities and Exchange Commission (“SEC”) must utilize mutual recognition based on substituted compliance to maintain American preeminence in the global securities market. In fact, mutual recognition based on substituted compliance facilitates the SEC’s ability to fulfill its statutory mandate-- to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation. Currently, all US investors may have access to foreign exchanges in the global securities market without the protection of the U.S. federal securities laws; at a minimum, the SEC must take action to fulfill the first prong of its statutory mandate--to protect investors. In addition, maintaining …

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

People's Tribunal On Torture Karnataka Report, Saumya Uma

Dr. Saumya Uma

International Immunities And Fighting Terrorism – Should Diplomatic, Consular And Un Officials Immunity From Searches Prevent Conducting Security Checkups In Border Crossings And Airports?, Ithai Apter

Ithai Apter

International Immunities and Fighting Terrorism – Should Diplomatic, Consular and UN Officials Immunity from Searches Prevent Conducting Security Checkups in Border Crossings and Airports? - ABSTRACT

Diplomatic, consular and United Nations officials usually enjoy general immunity from searches conducted on their persons, belongings and official vehicles, at border crossings. Although searches are conducted at airports, official baggage is still exempt from such inspection, based on the same premise of immunity.

The argument presented by the paper is that this immunity (when applicable) should mostly not be absolute in times of proven threats of terrorism. As this is not the current …

Peace Through Law? The Failure Of A Nobel Experiment, John C. Yoo, Robert Delahunty

John C Yoo

Collective-security ideas that emerged from the First World War nobly sought to end the carnage depicted in Erich Maria Remarque's All Quiet on the Western Front. The collective-security movement sought to create a system that protected the status quo by making existing national borders sacrosanct. Any violation of those borders would be treated like a criminal attack under a domestic legal system. But those who devised these rules could not have anticipated the very different threats confronting the international system today. Large, multistate conflicts have receded in the wake of the stability provided by the Cold War superpowers and now …

People's Tribunal On Torture Rajasthan Report, Saumya Uma

Dr. Saumya Uma

Suspect Symbols: Value Pluralism As A Theory Of Religious Freedom In International Law, Peter G. Danchin

Peter G. Danchin

The grounds upon which states may limit the freedom to manifest religion or belief are divisive questions in constitutional and international law. The focus of recent inquiry has been on laws which proscribe the wearing of religious symbols in certain aspects of the public sphere, and on the claims more generally to religious and cultural freedom of Muslim minorities in European nation-states. Stepping back from these debates, this Article aims at a more rigorous theoretical treatment of the subject. It asks whether there is a coherent notion of religious freedom in international legal theory and, if not, why not? In …

Of Prophets And Proselytes: Freedom Of Religion And The Conflict Of Rights In International Law, Peter G. Danchin

Peter G. Danchin

The case of proselytism presents a tangle of competing claims: on the one hand, the rights of proselytizers to free exercise of religion and freedom of speech; on the other hand, the rights of targets of proselytism to change their religion, peacefully to have or maintain a particular religious tradition, and to be free from injury to religious feelings. Clashes between these claims of right are today generating acute tensions in relations between States and peoples, a state of affairs starkly illustrated by the recent Danish cartoons controversy. Irrespective of their resolution in any particular domestic legal system, how should …

Beyond Rationalism And Instrumentalism: The Case For Rethinking U.S. Engagement With International Law And Organization, Peter G. Danchin

Peter G. Danchin

This Essay advances an argument for rethinking the current terms of engagement of U.S. foreign policy with international law and institutions so as to avoid the current two extremes of power politics and imperial moralizing. First, it is necessary to distinguish between force and the status of political domination on the one hand, and consensus and the status of normative meaning on the other. While it may be possible for a superpower to exercise factual authority and control over foreign states and peoples through sheer assertions of force and will, the attainability of such a situation should not be confused …

People's Tribunal On Torture Tamil Nadu Report, Saumya Uma

Dr. Saumya Uma

Reaffirming The Rights Of Foreign Investors To The Protection Of Icsid Arbitration: Sempra Energy International V. The Argentine Republic, Daniel Krawiec

Daniel A Krawiec II

Earlier this decade, the Argentine government responded to a substantial domestic economic crises by passing several emergency laws and unilaterally changing the terms of its investment agreements with foreign investors. Sempra v. Argentine Republic is an important case because the tribunal decisively reaffirmed the right to ICSID arbitration for American investors harmed by Argentina’s actions. Furthermore, the tribunal held that the U.S.-Argentina bilateral investment treaty provided substantial substantive investment protection.

“The Longest Journey, With A First Step”: Bringing Coherence To Sovereignty And Jurisdictional Issues In Global Employee Benefits Law, Paul Secunda

Paul M. Secunda

One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.

After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and …

Can We Talk?, Don Peters

Don Peters

CAN WE TALK: OVERCOMING BARRIERS TO MEDIATING PRIVATE TRANSBORDER COMMERCIAL DISPUTES IN THE AMERICAS Don Peters

This article examines cognitive and cultural barriers creating the comparatively infrequent use of mediation to resolve private, transborder commercial disputes in the Americas. It begins by analyzing the challenges of transborder commercial litigation. It then develops and supports the claim that international arbitration, the most frequently used transborder commercial dispute resolution method , suffers from many of litigation’s disadvantages, including excessive expense and delay, sacrificing outcome control, damaging or ending rather than preserving and improving commercial relationships, and using legalistic, rights based perspectives which …

Foreign Tax Credit Arbitrage, Eric Silver

eric silver

Within the sophisticated world of international finance, there exists an inherent tension in characterizing particular tax strategies as either savvy investments or imprudent tax avoidance. At the center of this struggle are the proposed amendments to regulation section 901 of the Internal Revenue Code. Both the Internal Revenue Service (the IRS) and the Treasury Department claim that the proposed regulations will guide tax strategists in determining the appropriate amount of domestic and foreign taxes paid and the claiming of foreign tax credits. More specifically, the updates to the legislation concern transactions involving U.S.-owned foreign entities and certain structured passive investment …