Law Commons^™

B.Y.O.B. (Bring Your Own Bag): A Comprehensive Assessment Of China’S Plastic Bag Policy, Mary Beckwith O'Loughlin

Mary Beckwith O'Loughlin

On June 1, 2008, the Chinese government enacted a nationwide policy prohibiting all stores from freely distributing plastic bags to customers. This new policy requires that, henceforth, all retailers must charge a nominal fee for plastic bags and that those purchasable bags must meet certain quality requirements to improve their potential reusability. These retailers, which include everything from grocery and clothing stores to farmer’s markets and food stalls, individually determine how much to charge for their bags and get to keep all related proceeds. The policy is an effort to mitigate the “white pollution” that is choking China’s landscape, as …

Reconsidering Disclosure And Liability In The Transatlantic Capital Markets, Mark Brewer, Orla Gough, Neeta Shah

Mark Brewer

In response to the current global financial crisis, governments around the world are introducing some of the most significant changes financial regulation since the Great Depression. However, these efforts fail to fundamentally alter the current overreliance on disclosure and fail to achieve international cooperation in deterring the next financial crisis. The article explores some of the limits of disclosure as a basis for financial regulation and to suggest international regulatory coordination of liability standards to help curtail the risky behavior that often leads to the pattern of boom and bust in the global financial markets. The purpose of this article …

Responsibility Of International Organizations Under International Law For The Acts Of Global Health Public-Private Partnerships, Lisa Clarke

Lisa Clarke

Public-private partnerships governing global health are making progress in relation to the prevention and treatment of diseases such as AIDS, tuberculosis and malaria. This progress should not be underestimated as these partnerships are making strides above and beyond efforts of either the public or private sector alone. As a consequence, partnerships are increasingly exercising public power over global health in addition to, or instead of, states and international organizations and are thus also becoming capable of adversely impacting the rights of individuals, in particular the right to life and the right to health. Responsibility under international law therefore arises as …

Terrorism And The Right Of Self-Defence: Rethinking Of Legal And Policy Issues, Abdul Ghafur Hamid Dr.

Abdul Ghafur Hamid Dr.

Self-defence has long been understood as a right applicable only in an inter-State armed conflict. After September 11, however, there have been attempts to widen the scope of self defence to include attacks by terrorists - non-State actors. This paper reappraises the legal and policy considerations that promote a right of self-defence against terrorists, or against States havouring terrorists. The paper advocates three main arguments: (1) that ‘armed attack’ as required under Article 51 must come from a State or at least the attack must be attributable to the State to the extent that it is taken as the act …

Assessing The Applicability Of The Business Judgment Rule And The “Defensive” Business Judgment Rule In The Chinese Judiciary: A Perspective On Takeover Dispute Adjudication, Xiao-Chuan Charlie Weng

Xiao-chuan Charlie Weng

With the surge of takeovers in China, many issues regarding takeover adjudication and legislation have increasingly received academic attention. The issues of the independence and professionalization of the judiciary and the scarcity of legislation on duty of care are the major predicaments facing corporate China. Massive legislative and judicial reform of takeover adjudication is not viable in the near future. However, U.S. common law standards of review, including the business judgment rule and serial rules against hostile takeover, with diacritical the business judgment rule stamp, may hold potential for reform within the current economic environment. The article investigates the problems …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

Studying Japanese Law Because It's There, Tom Ginsburg

Tom Ginsburg

No abstract provided.

Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber

Diane Webber

The paper examines current methods of preventive detention in the United States, that is the detaining of a suspect on home soil to prevent a terrorist attack. This paper looks at two recent events: the Fort Hood shootings and a preventive arrest in France, to consider problems in combating terrorist crimes on U.S. soil. I demonstrate that U.S. law as it now stands, with some limited exceptions, does not permit detention to forestall an anticipated domestic terrorist crime. After reviewing and evaluating the way in which France, Israel and the United Kingdom use forms of preventive detention to thwart possible …

Introductory Note To The Extraordinary Chambers Of The Courts Of Cambodia: Decision On The Appeals Against The Co-Investigative Judges Order On Joint Criminal Enterprise (Jce), Benjamin E. Brockman-Hawe

Benjamin E. Brockman-Hawe

No abstract provided.

Whether Foreigner Or Alien: A New Look At The Original Language Of The Alien Tort Statute, M. Anderson Berry

M. Anderson Berry

Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word.

In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of …

Questioning The Un's Immunity In The Dutch Courts; Unresolved Issues In The Mothers Of Srebrenica Litigation, Benjamin E. Brockman-Hawe

Benjamin E. Brockman-Hawe

Providing victims with a judicial forum where they can air their grievances and obtain redress for violations of their rights is regarded as the cornerstone of an international culture of accountability, and restrictions on the right of access to a court must not run afoul of international law's prohibition on the denial of justice. The operation of international organisations, on the other hand, is predicated on the notion that shielding them from the normal processes of the law by providing for their immunity before national courts is the only way to ensure their effectiveness. When an international organization tasked with …

911 V. 913: How The Flaws Of The Foreign Earned Income Exclusion Could Be Corrected By A Modified Version Of The Repealed Section 913, Ryan M. Borgmann

Ryan M Borgmann

This Article addresses the use of earned income as basis for allowing a tax benefit to individuals who live and work abroad. With the exception of a short period of time in the late 1970’s and early 1980’s, earned income has been used to provide a tax benefit for United States citizens and residents living and working abroad. The reasoning for this tax benefit has always been to provide assistance for the higher cost of living and higher tax rate of living in a foreign country, yet the tax benefit has been available to every individual living abroad, independent of …

Towards A Gender-Inclusive Definition Of Child Soldiers: The Prosecutor V. Thomas Lubanga Dyilo, Kristin M. Gallagher

Kristin M Gallagher

The trial of Thomas Lubanga Dyilo (“Thomas Lubanga”) will set international precedent for crimes related to child soldiers. As it is the first trial before the International Criminal Court (“ICC” or the Court), the Court will be setting a standard for interpreting what it means to conscript, enlist or use child soldiers actively in combat. This paper argues that the trial of Thomas Lubanga Dyilo currently before the International Criminal Court represents an opportunity for a precedent-setting decision regarding the use of child soldiers. It also argues for an interpretation of the law that recognizes the changing face of war …

A Quantitative Assessment Of The Development Of Renewable Energy In Taiwan, 1980 To The Present: A Political-Economic Perspective, Kuang-Cheng Chen

Kuang-Cheng Chen

This article attempts to use quantitative analysis (regression analyses) to analyze renewable energy development in Taiwan from 1980 to the present using the political-economic perspective. This research found that the “Renewable Energy Supply” and the “Renewable Energy Supply/Total Energy Supply” were impacted by political factors (e.g., “Which party wins half of the seats for county magistrates and city mayors in a given year?”) between 1980 and 1999, but were influenced by economic factors (GDP (PPP) from 2000 to 2007. As regards the “Ratio of CO2 Emissions to the Population,” it was impacted by economic factors (GDP (PPP)) from 1980 to …

The 2009 Eu Regulation On Trade In Seal Products, Mohamed Coulibaly

Mohamed Coulibaly

This paper assesses the justifiability of trade-related measure for the purpose of protecting the environment. It analyzes a new regulation adopted by the European Communities to ban trade in seal products derived from commercial hunting. The measure has been challenged under the WTO rules by two major sealing countries -Norway and Canada, on the ground that it violates the EC obligations under those rules. After analyzing relevant WTO jurisprudence, the paper concludes that the EC regulation violates the EC obligations but, is justifiable under the General exceptions of the GATT 1994, and does not constitutes a technical regulation under the …

Southern Sudan Self-Determination Private Members Motion 2010, B Hansen Jd (Hons)

Barrie Hansen JD (Hons), LLM

In 2010 I was introduced to a young man, Lual Jok Alaak, who was then studying for a law degree at Bond University Law School. I was struck by his positive outlook and even more surprised by his demeanour when I learned that his father had been executed by North Sudanese soldiers because he was Christian. I learned that Lual, not yet a teenager, fled South Sudan to a refugee camp in Kenya; was eventually given official UNHCR refugee status; and then offered a home in Australia, where he has studied to become a lawyer. Lual had written a book …

An Overview Of The Management Of Internally Displaced Persons In The United States Of America And Nigeria, Benedicta Daudu

Benedicta Daudu

AN OVERVIEW OF THE MANAGEMENT OF INTERNALLY DISPLACED PERSONS IN THE UNITED STATES OF AMERICA AND NIGERIA BY BENEDICTA DAUDU Throughout history, humankind has been subjected to displacement. Some factors make this displacement involuntary. These factors range from violent social conflicts to naturally occurring phenomena such as drought, flood and earthquakes. This paper examined how the United States of America (USA) and Nigeria meet humanitarian challenges arising from displacements of persons. Both countries attempt to meet Internally Displaced Persons (IDPs) humanitarian challenges by using the institutions of Federal Emergency Management Agency (FEMA) and National Emergency Management Agency (NEMA) in the …

Dissolution Of The Netherlands Antilles, Mark J. Calaguas

Mark J Calaguas

No abstract provided.

Legal Analysis Of Petroleum Investment In An International Conflict Zone: Southern Sudan, Barrie Hansen

Barrie Hansen JD (Hons), LLM

The "resource curse" is a term that was coined to describe the problems that inevitably occur in developing countries with significant resource wealth. Little academic attention has been given to the legal issues which may permit an American resource investor to safely make an investment in a developing country. The article addresses the spectrum of legal issues that have arisen in one particular "conflict zone" and how the investor may structure their investment to maximize their real return whilst avoiding the legal hazards of investing in a conflict zone.

International Law And Domestic Judicial Procedure: Implementing The Hague Convention On Choice Of Court Agreements In The American Federal System, Carolyn Dubay

Carolyn Dubay

In 2009, the United States became a signatory to the Convention on Choice of Court Agreements (COCCA), drafted under the auspices of the Hague Conference on Private International Law. The stated objective of the Convention was to "promote international trade and investment through enhanced judicial co-operation." Despite these broad goals, COCCA is narrowly drawn to relate only to international commercial disputes subject to a negotiated choice of court agreement. With respect to forum selection clauses in international business-to-business contracts, COCCA creates uniform procedural rules for the enforcement of such clauses in both the courts designated in such clauses (“chosen courts”), …

U.S. International Narcotics Extradition Cases: Legal Trends And Developments With Implications For U.S.-China Drug Enforcement Activities, David Aronofsky, Jie Qin

David Aronofsky

Paper Abstract Professor Morgan correctly notes that “extradition, as opposed to domestic prosecution, has become the law enforcement vehicle of choice for governments willing to engage with the United States in the anti-drug campaign.” This Paper will review U.S. international drug trafficking extradition cases with the dual objectives of (a) identifying contemporary legal issues trends and developments; and (b) analyzing how these issues, trends and developments might reasonably apply to future U.S.-China cooperation in international drug enforcement efforts. Special attention will be paid to the recent Valencia-Trujillo decision as an example of why extradition treaties may be unnecessary for effective …

The Year Of The Tiger, The Thrill Of The Fight: Why Conservation Should Not Succumb To Commerce, Tricia S. Patel

Tricia S Patel

The Year of the Tiger, The Thrill of the Fight: Why Conservation Should Not Succumb to Commerce This paper discusses the international and domestic regulation of tigers and recent conservation methods adopted under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES). With the illicit wildlife trade being the third largest form of trafficking, the author focuses on the role of China and its domestic policies, with a discussion on the use of tiger parts in the practice of Traditional Chinese Medicine. Additionally, the author discusses China's adoption of tiger farms as the predominant method …

International Civil Religion: Respecting Religious Diversity While Promoting International Cooperation, Amos Prosser Davis

Amos Prosser Davis

International civil religion grounds moral claims that permeate and transcend traditional religious paradigms. Given the inevitability of international interactions – interactions that cross geographic, religious, and cultural boundaries – our global society is in need of a universally endorsable framework that undergirds the United Nations international human rights regime. International civil religion provides that framework.

Numerous scholars and moral theorists have incrementally discerned the parameters of civil religion including, inter alia, Jean-Jacques Rousseau, Alexis de Tocqueville, Robert Bellah, Martin Marty, and Harold Berman. The tenets of international civil religion infuse the diplomatically drafted United Nations covenants and conventions on human …

The Temporal Scope Of Command Responsibility Revisited: Why Commanders Have A Duty To Prevent Crimes Committed After The Cessation Of Effective Control, Joakim Dungel, Shannon Ghadiri

Joakim P Dungel

Must an outgoing commander prevent his troops from criminal activity even if their crimes will be committed after he ceased to have effective control over them? This question has received scant judicial or academic discussion. Yet, the question is not simply a hypothetical one. In the Sesay et al. trial judgment, the accused Morris Kallon incurred command responsibility for his failure to prevent enslavement, which continued until December 1998, even though his effective control over the culpable troops ended in August 1998. While the trial chamber provided little reasoning for its conclusion, this paper endeavours to fill that gap in …

Defining Terrorism Within International Law And Legislation Of The Republic Of Azerbaijan, Rahim Hesenov

rahim hesenov

No abstract provided.

Human Trafficking: Iraq - A Case Study, Ali Allawi

Ali Allawi

The accompanying Article explores the issue of human trafficking and sexual exploitation in postwar Iraq. It attempts, in three steps to firstly identify the issue of human trafficking and how it pertains to Iraq, secondly to examine Iraq’s international legal obligations to address the human rights violations and human trafficking issues, and lastly, recommend implementable solutions that the Iraqi government can take to meet its international obligations and remedy the problem at hand. The Article sheds new light on the growing humanitarian crisis in post war Iraq and brings awareness of the monumental challenges that face both the government and …

Facilitating Friendly Settlements In The Inter-American Human Rights System: A Comparative Analysis With Recommendations, Sean B. Burke, Matthew P. Webster

Sean B Burke

No abstract provided.

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

White Phosphorus: Smokescreen Or Smoke And Mirrors?, Ubaid Ul-Haq

Ubaid ul-Haq

Chemical and biological weapons have for centuries been relegated to a widely disfavored status among most nation States. Since these early times, it has been recognized that the use of these weapons, even during the chaotic realm of warfare, is unnecessary and unnatural. As such, there have evolved in the past 150 years several conventions that have codified this increasingly apparent sentiment of non-use, eventually culminating in the ideal of non-proliferation. Today, however, the changing atmosphere of the battlefield and the foreign tactics employed therein have led to a resurgence of the utility of using such weapons, particularly since certain …