Law Commons^™

Pirates On The High Seas: An Institutional Response To Expanding U.S. Jurisdiction In Troubled Waters, Marshall B. Lloyd, Robert Summers

Faculty Articles

Collective efforts among governments and regional organizations is a vital part of the fight against piracy that represents a security threat to all nation states with respect to freedom to navigate the high seas. This paper provides a concise overview of piracy, contemporary maritime drug laws, and cases among the circuit courts to illustrate the procedural concerns that affect fundamental constitutional principles of jurisdiction. A possible solution to existing substantive and procedural due process issues is establishment of a regional judicial institution with broad powers to preside over criminal prosecutions that include maritime crimes. The suggestion may be a viable …

Confucius And The Chinese Legal Tradition, Chenglin Liu

Faculty Articles

More than two thousand years ago, Confucius transformed and perfected an institution for governing Chinese people, which has been religiously replicated by subsequent dynasties. Within the Confucian institution, the King, at the pinnacle of the pyramid, held absolute authority; regional lords were loyal to the King; and commoners were submissive to the privileged. Confucius held that peace and order could only be achieved when people acted according to their hierarchical worth assigned by the ruler. This article offers an overview of the transformation of Confucianism. It then examines competing schools of thought-Legalism and Taoism-and explains why Confucianism triumphed to become …

Building A Lifeline: A Proposed Global Platform And Responsibility Sharing Model For The Global Compact On Refugees, Sarnata Reynolds, Juan Pablo Vacatello

The Scholar: St. Mary's Law Review on Race and Social Justice

In 2016, the leaders of 193 governments committed to more equitable and predictable sharing of responsibility for refugees as part of the New York Declaration, to be realized in the Global Compact on Refugees. To encourage debate, this paper presents the first global model to measure the capacity of governments to physically protect and financially support refugees and host communities. The model is based on a new database of indicators covering 193 countries, which assigns a fair share to each country and measures current government contributions to the protection of refugees. The model also proposes a new government-led global platform …

Population Law And Policy: From Control And Contraception To Equity And Equality, Victoria Mather

Faculty Articles

As a young professor at St. Mary's University School of Law in the 1980s, I had the opportunity to teach in our summer program in Innsbruck, Austria. At the time, faculty members were required to teach an international or comparative law course, and I developed a mini-course in population law and policy. Over the last thirty years, I have had the opportunity to rethink and redevelop the course and to teach it during fifteen summers in the beautiful Austrian Alps. Our summer program became known as the St. Mary's Institute on World Legal Problems, and my course developed into a …

Developing Countries And International Economic Law: The Case Of Burma, Vincent R. Johnson

Faculty Articles

Roughly a quarter of a century ago, developing countries, in large numbers, signed on to the 1994 revision of the General Agreement on Tariffs and Trade3 ("GKTT 1994") and to membership in its umbrella institution, the World Trade Organization ("WTO"). Notwithstanding their erstwhile reluctance to do business with and compete against developed countries that in many instances had been colonial oppressors, they took on substantial obligations under the WTO agreements. Developing countries did so, in part, because they feared being left behind economically in a world where free trade prospered.

Crisis At The Border: A Need To Reexamine The Doctrine Of Sovereign Immunity., Guinevere E. Moore, Robert T. Moore

The Scholar: St. Mary's Law Review on Race and Social Justice

Altercations between Border Patrol agents and nationals along the United States-Mexico border continue to reveal a trend of disproportionate use of force. This often results in death and a lack of justice in American courts. To hold the American government accountable for the actions of their agents, the United States should adopt a policy of waiving its sovereign immunity in cases where there have been violations of fundamental human rights.

The foreign sovereign immunity doctrine states a foreign sovereign cannot be brought into a United States court without first waiving its sovereign immunity from suit. With this, the United States …

The History Of The Rise Of The Alien Tort Statute And The Future Implications Of Kiobel V. Royal Dutch Shell., Sung Je Lee

The Scholar: St. Mary's Law Review on Race and Social Justice

The United States Supreme Court did not clearly define what facts invoke the Alien Tort Statute (ATS). The Court also failed to provide guidance as to what claims touch and concern the territory of the United States. Enacted by the Continental Congress in the late 18th century, ATS states that federal district courts shall have original jurisdiction of any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. Because ATS has remained dormant for nearly 200 years, various federal courts have experienced immense difficulty interpreting its …

The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore

St. Mary's Law Journal

Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is …

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

Singing Songs In A Strange Land: The Plight Of Haitian Children In The Space Of International Adoption., Glenys P. Spence

The Scholar: St. Mary's Law Review on Race and Social Justice

The best interests of children are not served by severing the familial bonds contemplated by international adoption law. Nonetheless, because of the high costs of the international adoption process, efforts to adopt their Haitian orphan relatives are ignored. In attempts to guarantee the “best interests of the child” are met, the United Nations Convention on the Rights of the Child (CRC) and the Hague Convention on the Protection of Children Co-Operative Respect of Intercountry Adoptions (Adoption Convention) were created as the two governing bodies of international adoption law. Global South countries, including Haiti, however, have not ratified the Adoption Convention. …

American Punitive Damages Vs. Compensatory Damages In Promoting Enforcement In Democratic Nations Of Civil Judgments To Deter State-Sponsors Of Terrorism, Jeffrey F. Addicott

Faculty Articles

The primary consequence of the attacks on 9/11 on the U.S. was a fundamental legal shift in the approach that the U.S. has taken when confronting terrorism and the States that support them. The new challenge of the post 9/11 approach focused on ways to effectively combat not only terrorist organizations but also the States that sponsor them. This new thinking demands that Western democracies adopt an internationally based functional legal methodology that can deter rogue States from sponsoring terrorism.

Civil litigation against States that sponsor or support terrorism is a potential legal tool which could be used with great …

State Practice In The Management And Allocation Of Transboundary Groundwater Resources In North America, Gabriel Eckstein, Amy Hardberger

Faculty Articles

Throughout the world, international and state political boundaries divide groundwater resources into politically convenient jurisdictions. Subsurface water, however, does not recognize such borders and flows freely without regard to overlying politics. This disregard for the political dimension, coupled with the growing global importance of fresh water, has the potential for aggravating disputes and conflicts over the use, allocation, and preservation of such resources. To date, widely accepted norms of international law applicable to transboundary aquifers have yet to emerge. However, local and regional agreements, including both formal and unofficial arrangements, suggest the emergence of state practice that should be considered …

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

An understanding of the basic principles that regulate contract formation is of great importance when deciphering the most appropriate ways of fom1ing a new contract or when assessing the legality of an already existing contract. While the basic rules of contract formation are generally applicable to all types of contracts regardless of the method utilized in their creation, there are some juridical rules that apply specifically to electronically created contracts.

The Practice Of Rendition In The War On Terror, Jeffrey F. Addicott

Faculty Articles

It is imperative that discussion of emotionally charged issues such as torture or illegal rendition focus on the governing legal standards. The dilemma that confronts the United States and its allies is al-Qa'eda--not a nation-state but a virtual state. Therefore, the rules for fighting the War on Terror face challenges not yet fully appreciated or anticipated by international law, let alone domestic law. The primary international instrument dealing with illegal rendition is the 1984 United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention).

It is necessary to first define the terms "torture" and …

Law And Bioterrorism By Victoria Sutton (Book Review), Jeffrey F. Addicott

Faculty Articles

The best primer for constructing a legal framework surrounding bioterrorism is a wonderfully researched and incisive book by Professor Victoria Sutton. Sutton brings a vast background of experience and expertise to her book, titled Law and Bioterrorism, which is in fact the first legal textbook in the field of law and bioterrorism.

The book begins with a brief examination of the history of law and bioterrorism, from ancient biological warfare to modern times. Drawing upon the lessons of this history, Sutton discusses historical events such as the use of anthrax in World War I, and further examines the rapidly growing …

Trademarks Under The North American Free Trade Agreement (Nafta) With References To The New Trademark Law Of Spain, Effective July 31, 2002, And The Current Mexican Law, Roberto Rosas

Faculty Articles

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or “marks” on their products containing an artistic or utilitarian element. Through time, these marks have evolved to such an extent that today, a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which, because of the essence …

Into The Star Chamber: Does The United States Engage In The Use Of Torture Or Similar Illegal Practices In The War On Terror, Jeffrey F. Addicott

Faculty Articles

Because of the dangers presented by al-Qaeda style terrorism, the United States has crafted a variety of robust anti-terrorism responses. One of the more controversial of these is the indefinite detention of suspected enemy combatants, and the associated question as to whether the United States can and does employ torture.

Many prominent voices, such as Professor Alan Dershowitz, have advocated a judicial exception allowing torture as an interrogation tool in special instances, but the United States has struggled to find an appropriate balance between civil liberties and security concerns. To succeed in the War on Terror, the U.S. cannot allow …

A Guide To Resources On Careers In Foreign And International Law, Robert H. Hu

Faculty Articles

Law librarians are often asked by law students and even practicing attorneys, “How do I begin a career in foreign and international law practice?” The student or attorney asking this question frequently is seeking recommendations for books, articles, or other information resources on the topic. The same situation arises in a law school’s career services office. For these reasons, a guide has been compiled to help law librarians and placement officials assist individuals who are interested in pursuing career opportunities in foreign and international law practice.

This guide is divided into four sections: Perspectives on International Law Practice, Membership Organizations, …

Building Democracies With Southern Command’S Legal Engagement Strategy, Jeffrey F. Addicott, Guy B. Roberts

Faculty Articles

Fostering democracies and encouraging military establishments, which are subject to the rule of law, is vital to United States national security interests. In this regard, the American warfighting unified commands mirror the overall U.S. national security policy of peacetime engagement, not only by maintaining close contacts with friendly governments for the purpose of imparting democratic ideals and principles, but by focusing this commitment to support new democracies through detailed engagement plans.

U.S. Southern Command’s engagement plan for Latin America creates a “community of democratic, stable, and prosperous” nations. This plan also provides a blueprint for democracy-building in the context of …

Chinese Law And American Legal Education (Foreword), Vincent R. Johnson

Faculty Articles

The rise of international and comparative law within the typical law school curriculum has been a profound change in American legal education. As international and comparative law gradually rose to prominence during the last part of the twentieth century, the attention of American legal educators often focused on Europe. However, law reform in China is today a priority of the government. With a vitality that echos American legislative achievements during the Progressive Era, the New Deal, and the Great Society, China is overhauling the laws that shape Chinese society and govern relations with persons and states abroad.

Members of the …

The Prospects For Challenging U.S. Nuclear Weapons Policy In Light Of The World Court's Advisory Opinion On The Legality Of The Threat Or Use Of Such Weapons Comment., Stephen Gordon

St. Mary's Law Journal

In an opinion, the World Court concluded “the threat or use of nuclear weapons would generally be contrary to the rules of international law,” the only exception being “in an extreme circumstance of self-defense, where survival of a State is at stake.” The Court’s opinion could read as prohibiting the most common ways the United States incorporated nuclear weapons into its defense strategy. First, it may prevent the United States from using such weapons again legally. Second, if the opinion does not render using nuclear weapons illegal in all circumstances, it might prohibit the United States from ever being the …

International Law Of Trade Preferences: Emanations From The European Union And The United States., Kele Onyejekwe

St. Mary's Law Journal

This Article posits that the increase of tariff arrangements, like the Generalized System of Preferences (GSP), is evidence of the “hardening” of a body of international trade-preference law. It contends that the law of trade preferences is widely practiced in international affairs and the developed nations which terminate all trade preferences for developing countries most likely engage in illegal conduct under international law. Classical international law principally consisted of the law between nations and an international law of trade preferences in any form was unthinkable. Thus, neither international cooperation nor a duty for developed countries to assist developing countries is …

Jag Corps Poised For New Defense Missions: Human Rights Training In Peru, Jeffrey F. Addicott

Faculty Articles

The National Command Authority has cited the dissolution of the Soviet Union as cause for the United States Military to expand its role. In addition to its traditional role of fighting wars, the military will take on new nontraditional roles promoting human rights and the rule of law throughout the world. These new military missions will include peacekeeping operations, humanitarian interventions, disaster relief missions, counter-drug activities, and nation-building activities.

As part of this initiative, the United States Judge Advocate General’s Corps (JAGC) provides legal assistance to the militaries of several emerging and struggling democracies. A number of foreign armies and …

The International Law Of The Environment From The U.S. Perspective: A Case Study: The U.S. And Mexico, Robert Summers

Faculty Articles

The subject of public international law is vast, rich and varied, thus offering the potential to explore many interrelated topics ranging from the lofty philosophical precepts of positivist and naturalist thought to the technical intricacies of international business transactions. Many of these topics are also historically relevant to the long and often inclement history of Mexican-U.S. relations. These include the law of war, peace and neutrality, self-determination, territory, recognition, and diplomatic and consular privileges and immunities. Regrettably, the allotment of time and space for the subject of public international law in the Joint Venture Program does not allow discourse on …

Oil In The Persian Gulf War: Legal Appraisal Of An Environmental Warfare., Margaret T. Okorodudu-Fubara

St. Mary's Law Journal

Oil, modern history’s most “powerful” natural economic resource stood at the epicenter of the Iraqi invasion of Kuwait and became the latest unconventional weapon of warfare. The objective of this Article is to assess the legal implications of this recent environmental warfare involving the “oil weapon,” the first of its kind in recorded history. The experiences from national and international wars demonstrate one sure victim of wars, even barring human losses, is the environment. The delicacy of mankind’s planetary ecosystem necessitates urgency addressed to protecting the environment in the international struggle for arms control and disarmament agreement. This Article indicates …