Law Commons^™

The Dispute Settlement Process Of The Wto: A Normative Structure To Achieve Utilitarian Objectives, Brian Manning, Srividhya Ragavan

Faculty Scholarship

The paper posits that the World Trade Organization (WTO) has failed to efficiently promote mutually advantageous global relationships. The authors contend that the structure and the functioning of the Dispute Settlement Body have contributed to the failure of the WTO. The DSB’s approach to interpreting the WTO agreements has been normative, as opposed to a realistic. Consequently, decisions from the DSB have resulted in strict interpretation of WTO agreements without appropriately balancing member’s national realities. Thus, the overall goals of the organization have been compromised to reinforce existing global power structures rather than promote cooperative governance.

The authors examine two …

After The Fall: Financial Crisis And The International Order, Robert B. Ahdieh

Faculty Scholarship

Recent years have challenged the international order to a degree not seen since World War II — and perhaps the Great Depression. As the U.S. housing crisis metastasized into a financial and economic crisis of grave proportions, and spread to nearly every corner of the globe, the strength of our international institutions — the International Monetary Fund, the World Trade Organization, the Group of Twenty, the Basel Committee on Banking Supervision, and others — was tested as never before. Likewise tested, were the limits of our national commitment to those institutions, to our international obligations, and to global engagement more …

Voip Mtic - The Italian Job (Operazione 'Phuncards-Broker'), Richard Thompson Ainsworth

Faculty Scholarship

On February 8, 2010 a speculative paper on the likelihood that fraudsters proficient in missing trader intra-community (MTIC) fraud might move into voice over internet protocol (VoIP) was submitted to the Boston University School of Law Working Paper Series.

Prior to that paper there was very little (if any) public discussion of VoIP MTIC. There were no assessments, no arrests, and not a hint of litigation. Fifteen days later, and before final publication the financial press exploded with coverage of a massive VoIP MTIC fraud (the Operazione “phuncards-broker” investigation). The Wall Street Journal reported: An [Italian] judge…ordered the arrest of …

Holding The World Bank Accountable For The Leakage Of Funds From Africa’S Health Sector, Fatma E. Marouf

Faculty Scholarship

This article explores the accountability of international financial institutions (IFIs), such as the World Bank, for human rights violations related to the massive leakage of funds from sub-Saharan Africa’s health sector. The article begins by summarizing the quantitative results of Public Expenditure Tracking Surveys performed in six African countries, all showing disturbingly high levels of leakage in the health sector. It then addresses the inadequacy of good governance and anticorruption programs in remedying this problem. After explaining how the World Bank’s Inspection Panel may serve as an accountability mechanism for addressing the leakage of funds, discussing violations of specific Bank …

A Unified Theory Of International Law, The State, And The Individual: Transnational Legal Harmonization In The Context Of Economic And Legal Globalization, James D. Wilets

Faculty Scholarship

This Article presents an original theory of international law which reconciles the norm-making processes occurring at the international, state, and individual levels. It is the central thesis of this paper that economic globalization is not happening in a vacuum, but it is rather engendering legal globalization, much in the way that centralized regulation followed trans-state economic globalization within the United States and Europe.

Traditional definitions of international law do not address this phenomenon and consider these new forms of transnational norm creation as simply exceptions to the general rule that international law is created by nation-states within the framework of …

Mtic (Vat Fraud) In Voip - Market Size $3.3b, Richard Thompson Ainsworth

Faculty Scholarship

In the beginning, the VAT fraud known as missing trader intra-community (MTIC) fraud appeared to be a UK problem concentrated in the cell phone and computer chip markets. MTIC has mutated (to other commodities) and migrated (to other Member States). This paper describes how this fraud operates in the VoIP market, and how in this mutation it is no longer confined to the EU, but can infiltrate any VAT/GST anywhere.

Canada, Botswana, Japan, Iceland and Jamaica (to mention a few jurisdictions) have consumption taxes that are just as vulnerable as is the EU VAT to VoIP missing trader fraud. It …

Should Unicitral Prepare A Model Law On Secured Transactions, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty

Faculty Scholarship

On the campaign trail in 2008, presidential candidate and then-Senator Barack Obama promised to restore America’s place in the world by breaking with many of the national security policies put into effect by President George W. Bush. In January 2009, President Obama made numerous changes to United States foreign policy, including signing an executive order to close the prison at Guantanamo Bay, Cuba and announcing that the United States would not engage in interrogation techniques that constitute torture. In some respects, however, Obama has followed the example of President Bush - for example, in his resuscitation of a specialized military …

Introduction: The New Collective Security, Peter G. Danchin, Horst Fischer

Faculty Scholarship

Whether viewed as a socio-legal project gently civilizing states away from an older politics of diplomacy, deterrence, self-help and legitimate warfare, or as an institutional project establishing a collective security system premised on the rule of law, the primary purpose of the United Nations today remains the maintenance of international peace and security and the abolition of the “scourge of war.” In March 2003, the U.S. and its allies invaded Iraq, a member State of the United Nations, in order to disarm it and change the regime of Saddam Hussein. The war shook the United Nations and leading capitals around …

Things Fall Apart: The Concept Of Collective Security In International Law, Peter G. Danchin

Faculty Scholarship

This chapter provides an introduction to the analytical and historical aspects of the concept of collective security in international law. Taking the examples of Italy’s invasion of Ethiopia in 1935 during the League of Nations and the complaint brought by Hyderabad against India at the very inception of the United Nations in 1948, the chapter traces the complex dialectics of normativity and concreteness in debates concerning collective security. Mirroring the normative and institutional dilemmas underlying the two cases of Ethiopia and Hyderabad, it is observed that the questions of “external threats” (the threat or use of force between States) and …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

Faculty Scholarship

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Tensions Between International Law And Domestic Responsibilities, Maxwell O. Chibundu

Faculty Scholarship

No abstract provided.

Assessing The High-Level Panel Report: Rethinking The Causes And Consequences Of Threats To Collective Security, Maxwell O. Chibundu

Faculty Scholarship

This is a contribution to a volume of essays anchored in the evaluations of proposed reforms of the United Nations system extant in the middle half of the last decade. The essay’s focus is primarily on the role of the Security Council as the provider of collective security within the system. It contends that the term “collective security” has become far too amorphous and too all-embracing to be useful, and that it runs the risk of distorting the proper allocation of power within the international system. It argues for a more circumscribed view of collective security, and for a less …

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay Erstling

Faculty Scholarship

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of Korean Intellectual Property Office (KIPO). Part II will take a brief look at the rationale underpinning Korea's confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. In order to provide a basis of comparison, reference will be made wherever …

An Escape Route From The Medellin Maze, Anthony S. Winer

Faculty Scholarship

Many in the United States who follow international law have tracked the course of the Supreme Court's 2008 Medellin case' especially closely, both before and after the Court's issuance of the decision. The case concerned the Vienna Convention on Consular Relations (the "Vienna Convention, "Convention" or "VCCR"), which imposes certain obligations on the authorities of a State Party when they imprison a national of another State Party. Among these duties is the obligation to inform the foreign prisoner that the Convention affords the prisoner the right to communicate, while in prison, with consular officials from the prisoner's home country. Authorities …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

After Medellin V. Texas, Will U.S. Commitments In International Extradition Cases Be Enforceable?, Mark A. Summers

Faculty Scholarship

No abstract provided.

Criminal Defence And The International Legal Personality Of The Individual, Kenneth S. Gallant

Faculty Scholarship

Since the beginning of the Nuremberg trial, the status of the individual in international law has changed. This change is intimately connected with the right of defense in criminal proceedings, especially international criminal proceedings. Today, as a matter of right, the individual may make certain claims in international law, and especially international criminal law and international human rights law related to criminal procedure and substantive criminal law, without relying on a state to make them on his or her behalf. This article explores this development of the international legal personality of individuals. It also considers some of the limits of …

International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, Kenneth S. Gallant

Faculty Scholarship

Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these …

Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

Dispute Regarding Navigational And Related Rights (Costa Rica V. Nicaragua), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Human Rights For Hedgehogs?: Global Value Pluralism, International Law, And Some Reservations Of The Fox, Robert D. Sloane

Faculty Scholarship

This essay, a contribution to the Boston University Law Review’s symposium on Ronald Dworkin’s forthcoming book, Justice for Hedgehogs, critiques the manuscript’s account of international human rights on five grounds. First, it is vague: it fails to offer much if any guidance relative to many of the most difficult concrete issues that arise in the field of international human rights law and policy - precisely the circumstances in which international lawyers might benefit from the guidance that moral foundations supposedly promise. It is also troubling, and puzzling given Dworkin’s well-known commitment to the right-answer thesis, that his account of human …

Making Social Rights Conditional: Lessons From India, Madhav Khosla

Faculty Scholarship

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This …

A Lucky Child: A Memoir Of Surviving Auschwitz As A Young Boy, Lori Fisler Damrosch

Faculty Scholarship

Many readers of this Journal would readily identify the young boy in lederhosen, hands tightly clasped by his mother, who is in turn enfolded in the father's embrace – all three smiling on what is perhaps the child's third birthday – in the cover photograph of the American edition of the book under review. In this memoir he is Tommy, Tom, Tomek, or Tommyli; in later life he is known to us (and recognized worldwide) as Thomas Buergenthal, judge of the International Court of justice since 2000 and honorary president of the American Society of International Law from 2001 to …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

The President's Unconstitutional Treatymaking, David H. Moore

Faculty Scholarship

The President of the United States frequently signs international agreements but postpones ratification pending Senate consent. Under international law, a state that signs a treaty subject to later ratification must avoid acts that would defeat the treaty's object and purpose until the nation clearly communicates its intent not to join. As a result, the President in signing assumes interim treaty obligations before the treatymaking process is complete. Despite the pervasiveness of this practice, scholars have neglected the question of its constitutionality. As this Article demonstrates, the practice is unconstitutional. Neither the text, structure, nor history of the Constitution supports the …

Book Reviews And Libel Proceedings, Lori Fisler Damrosch, Bernard H. Oxman, Richard B. Bilder, David D. Caron

Faculty Scholarship

The American journal of International Law has been informed of the initiation in France of penal proceedings against the editor in chief of the European journal of International Law (EJIL), by virtue of a complaint filed by an author of a book reviewed on a Web site affiliated with the Ejll.1 We share the concerns of other professional societies regarding the potential of such litigation for chilling academic discourse. 2 We also take this opportunity to explain the practice of the AJIL concerning communications from authors who object to book reviews published in our pages, and to state our position …

Does Lawfare Need An Apologia?, Charles J. Dunlap Jr.

Faculty Scholarship

Few concepts in international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is …