Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 76
Full-Text Articles in Law
International Order, Political Community, And The Search For A Eurpoean Public Philosophy, Ian Ward
International Order, Political Community, And The Search For A Eurpoean Public Philosophy, Ian Ward
Fordham International Law Journal
The shaping of international order, and the place of concepts such as law and community within that order, has emerged as one of the most pressing issues in contemporary legal and political thought. This Essay examines three recent theses, each of which attempts to locate a public philosophy appropriate to the emerging new world order. Part I of this Essay takes a look at these theses: the orthodox Kantian theory of international relations, as recently articulated by Fernando Teson in A Philosophy of International Law, the liberal communitarian theory, which has been eloquently restated by Martha Nussbaum in Cultivating Humanity: …
The Belfast Agreement, David Trimble
The Belfast Agreement, David Trimble
Fordham International Law Journal
Jim Molyneaux and Ian Paisley, the then unionist leadership, began this process in 1987 when they gave alternative proposals to Tom King, the then Secretary of State for Northern Ireland. The Brooke talks ended in apparent failure in November 1992, but from a unionist perspective, in fact made significant progress. There was a period in 1993 when it appeared that the British government was receptive to unionist urging to implement the "strand one committee report." Despite these doubts, we in the Ulster Unionist Party remained in the talks when Sinn Fein, the political wing of the IRA, was admitted in …
Ireland--The Healing Process, John Hume
Ireland--The Healing Process, John Hume
Fordham International Law Journal
As you are aware, the quarrel on our island has gone on for several centuries. Looking at the example of the conflict in Ireland, there are two mentalities in our quarrel - the Nationalist and the Unionist. The real political challenge to the Unionist mindset occurred when Nationalist Ireland essentially said: "Look, your objective is an honorable objective, the protection and preservation of your identity." Geography, history, and the size of the Unionist tradition guarantee that the problem cannot be solved without them, nor against them. If we can leave aside our quarrel while we work together in our common …
To Cherish A Just And Lasting Peace, Gerry Adams
To Cherish A Just And Lasting Peace, Gerry Adams
Fordham International Law Journal
In the opening line of the diary that he kept during the first three weeks of his hunger strike, republican prisoner Bobby Sands, who died after fifty-five days on strike, wrote: "I am standing on the threshold of another trembling world." This system has created a unionist one party state that has rejected basic principles of democracy, justice, and equality. Throughout the development of our peace strategy and the talks process, republicans pursued the peace process in the context of our republican analysis of the situation and with a solid strategy to meet all of the difficulties head on. In …
The Good Friday Agreement: An Overview, Bertie Ahern
The Good Friday Agreement: An Overview, Bertie Ahern
Fordham International Law Journal
On 22 May, it received the overwhelming endorsement of the people of Ireland in referendums, North and South. For the first time, a precise mechanism has been defined - and accepted by the British Government - by which a united Ireland can be put in place, by the consent of Irish people and that alone. This involves setting up a new North-South Ministerial Council to develop consultation, co-operation and action within the island of Ireland on matters of mutual interest and establishing, as a start, at least six implementation bodies operating on a cross-border or all-island basis. The people, North …
Why Decommissioning Is A Real Issue, John Bruton
Why Decommissioning Is A Real Issue, John Bruton
Fordham International Law Journal
The Nationalist minority in Northern Ireland is protected by the Agreement. One of the principles to which both Sinn Fein and the Progressive Unionist Party agreed in 1997 was that they gave their "total and absolute commitment to the total disarmament of all paramilitary organisations." It is important for a U.S. audience to understand that those of us in Ireland who are concerned to maintain certain basic norms of representative democracy have good reasons to insist on the principle of the decommissioning of paramilitary weapons, regardless of who the weapons are held by, or for what motive. But if one …
An Irish View Of The Northern Ireland Peace Agreement: The Interaction Of Law And Politics, David Byrne
An Irish View Of The Northern Ireland Peace Agreement: The Interaction Of Law And Politics, David Byrne
Fordham International Law Journal
They include the treatment of the issues of self-determination, consent, and the status of Northern Ireland in the Irish Constitution and in British constitutional legislation; the establishment of new democratic institutions in Northern Ireland on a partnership basis; the creation of formal new links between the two jurisdictions in Ireland through a North/South Ministerial Council and a number of related bodies exercising executive functions; and the development of wider connections within Britain and Ireland through a British-Irish Council involving the two governments and devolved institutions in Scotland, Wales, and Northern Ireland, as well as a continuing British-Irish Intergovernmental Conference. There …
The Good Friday Agreement: A Triumph Of Substance Over Style, Kate Fearon, Monica Mcwilliams
The Good Friday Agreement: A Triumph Of Substance Over Style, Kate Fearon, Monica Mcwilliams
Fordham International Law Journal
This Essay consists of five parts. Part I locates the Agreement in a series of constitutional attempts to resolve the "Irish question" from 1971 onwards, arguing that the Agreement is both similar to, yet fundamentally different from, other settlement propositions. Part II introduces the reader to the Northern Ireland Women's Coalition (or "NIWC"), saying something of its founding rationale and environment before considering its priorities for the political process in which it found itself immersed in May 1996. Part III further outlines the role that the NIWC assumed in that process, and its modus operandi, going on to describe the …
The Belfast Agreement, Duncan Shipley-Dalton
The Belfast Agreement, Duncan Shipley-Dalton
Fordham International Law Journal
The Belfast Agreement (or "Agreement"), to give it its proper name, reached at Stormont on Good Friday 1998, is an important document of Irish history. It is certainly a political text, but it has important legal effects. And these I wish to emphasize. As a member of the Ulster Unionist Party ("UUP") - elected later to the Northern Ireland Assembly - I accepted the Agreement on April 10 as the best opportunity for the return of power to all the people of Northern Ireland. At the time of writing (early March 1999), the major issue remains the decommissioning of Irish …
'Constructive Ambiguity' Or Internal Self-Determinatinon? Self-Determination, Group Accommodation, And The Belfast Agreement, Christine Bell, Kathleen Cavanaugh
'Constructive Ambiguity' Or Internal Self-Determinatinon? Self-Determination, Group Accommodation, And The Belfast Agreement, Christine Bell, Kathleen Cavanaugh
Fordham International Law Journal
This Essay examines the Belfast Agreement (or "Agreement") in the light of international law on self-determination and minority rights. Northern Ireland cannot be evaluated in a vacuum; already it is being suggested that the Northern Ireland peace process and the formula devised in the 1998 Belfast Agreement may serve as a model for other divided societies. Indeed, this possibility was raised by President Clinton during his September 1998 visit to Belfast and was reiterated by the U.N. High Commissioner for Human Rights on her more recent visit in December 1998. International law claims to address many of the issues central …
Conflict In Northern Ireland After The Good Friday Agreement, Seamus Dunn, Jacqueline Nolan-Haley
Conflict In Northern Ireland After The Good Friday Agreement, Seamus Dunn, Jacqueline Nolan-Haley
Fordham International Law Journal
These include a "commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community" and eight particular rights are spelled out: the "complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts, and remedies for breach of the Convention, including powers for the courts to overrule Assembly legislation on the grounds of inconsistency"; a new Northern Ireland Human Rights Commission; a new statutory Equality Commission; a normalization of security arrangements and practice, including the reduction in the numbers and role of British Armed Forces deployed …
Dash For Agreement: Temporary Accommodation Or Lasting Settlement?, Dennis Kennedy
Dash For Agreement: Temporary Accommodation Or Lasting Settlement?, Dennis Kennedy
Fordham International Law Journal
The same dilemma remains for those in Northern Ireland today who genuinely want peace, reconciliation, and stability, but who at the same time see in what is termed the peace process, if not deceit, then much glossing over, a lot of ambiguity, and a deal of bad history. In 1921 the new institutions in Northern Ireland, the regional government and Parliament began life under the fiercest onslaught from Irish nationalism, both within its own boundaries and from the rest of the island. It was also critical of the early peace process under which John Hume of the SDLP had commenced …
The Northern Ireland Human Rights Commission, Stephen Livingstone
The Northern Ireland Human Rights Commission, Stephen Livingstone
Fordham International Law Journal
The extent of these powers [...powers to scrutinize proposed legislation before the Northern Ireland Assembly for its compliance with human rights standards, to assist litigants in bringing human rights complaints before the courts, and to conduct investigations into matters that give rise to human rights concerns...advising the Secretary of State for Northern Ireland as to whether any additional human rights, beyond those to be introduced for the whole of the United Kingdom by the Human Rights Act 1998, should be included in a Bill of Rights specific to Northern Ireland...], and their adequacy to the task that the Commission is …
The Nature Of The Agreement, Brendan O'Leary
The Nature Of The Agreement, Brendan O'Leary
Fordham International Law Journal
This article contains the Ninth John Whyte Memorial Lecture which discusses the Multi-Party Negotiations, also known as the British-Irish agreement, which aimed to formalize the end of “The Troubles” in Ireland.
The Criminal Cases Review Commission's Effectiveness In Handling Cases From Northern Ireland, Siobhan M. Keegan
The Criminal Cases Review Commission's Effectiveness In Handling Cases From Northern Ireland, Siobhan M. Keegan
Fordham International Law Journal
This Comment considers the Northern Ireland Criminal Cases Review Commission (CCRC), its establishment, and its likely effects on miscarriages of justice. Part I of this Comment considers British and Northern Irish law. Part I also highlights British law leading up to the creation of the CCRC and Northern Irish law in light of its unique elements. Part II explains the establishment of the CCRC, its powers, and structure. Additionally, Part II discusses various commentary on the creation of the CCRC. Part III analyzes the future effectiveness of the CCRC in correcting miscarriages of justice, paying particular attention to the case …
Prospects For Justice: The Procedural Aspect Of The Right To Life Under The European Convention On Human Rights And Its Applications To Investigations Of Northern Ireland's Bloody Sunday, Kara E. Irwin
Fordham International Law Journal
This Comment examines how the new doctrine of the procedural aspect of Article 2 of the European Convention can provide recourse for the travesty of justice inherent in failed investigations of alleged violations of the right to life, such as the contended failure of the Widgery Tribunal's investigation of Bloody Sunday in Northern Ireland.
Documentary Credit Law And Practice In The Global Information Age, Jacqueline D. Lipton
Documentary Credit Law And Practice In The Global Information Age, Jacqueline D. Lipton
Fordham International Law Journal
Documentary letters of credit have historically been an important and popular method of payment in international trading transactions. In fact, they have been described as the "lifeblood of international commerce." A number of uniform international practices have developed for their use, many of which are codified in international rules such as Uniform Customs and Practice for Documentary Credits. In the global information age, as the nature of international commerce changes, so too must the operation of such payment mechanisms. With the increase in electronic trading, the "documentary" nature of these credits may require some revision. This Essay examines ways in …
Computer Technology For The Benefit Of The Rule Of Law: Communication And Research, Carl A. Yirka
Computer Technology For The Benefit Of The Rule Of Law: Communication And Research, Carl A. Yirka
Fordham International Law Journal
This Essay suggests a number of ways in which rule of law partners in the United States and abroad with modest technical background might more easily communicate, plan, coordinate, and research joint projects. Without the new computer technologies it would be very difficult to conduct rule of law projects between partners in the United States and Russia. Recent advances in technologies now make communication with colleagues across the world by computer easier than ever.
Rethinking Mcclesky V. Kemp: How U.S. Ratification Of The International Convention On The Elimination Of All Forms Of Racial Discrimination Provides A Remedy For Claims Of Racial Disparity In Death Penalty Cases, Robin H. Gise
Fordham International Law Journal
This Note addresses U.S. obligations under CERD in the context of racial disparity in the imposition of the death penalty and proposes courses of domestic and international action. Part I examines the historical racial disparity in the imposition of the death penalty in the United States. It discusses the U.S. Supreme Court's decision in McClesky to deny relief to a death row inmate who demonstrated that race influenced whether a death sentence was imposed. Part I also explores the development of CERD and discusses CERD's standard for proving discrimination based on a showing of racially discriminatory effect. Finally, Part I …
Removing Drug Lords And Street Pushers: The Extradition Of Nationals In Colombia And The Dominican Republic, Joshua H. Warmund
Removing Drug Lords And Street Pushers: The Extradition Of Nationals In Colombia And The Dominican Republic, Joshua H. Warmund
Fordham International Law Journal
This Comment explores the interplay between drug trafficking and extradition policy in the U.S.-Latin American-Caribbean region by focusing upon the recent legal shift in Colombia and the Dominican Republic. Part I describes the status of current international extradition law, focusing on modern extradition policy. In particular, this part details the respective extradition treaties of Colombia and the Dominican Republic with the United States. Part I also explores the roles that these two nations assume trafficking drugs into the United States and highlights the corresponding U.S. anti-drug enforcement response. Finally, Part I examines the challenges that drug trafficking and certain anti-drug …
The Impact Of The Amsterdam Treaty Upon The Court Of Justice, Ole Due
The Impact Of The Amsterdam Treaty Upon The Court Of Justice, Ole Due
Fordham International Law Journal
The Intergovernmental Conference leading up to the adoption of the Maastricht Treaty was probably the first during which the case law of the Court of Justice formed a topic of discussion. The result of this discussion was certainly positive in relation to the new Treaty's general rules. But, clearly, criticism had also been voiced during the discussion. This criticism can be seen from two protocols to the Treaty, both drawn up as unfortunate reactions to specific rulings. It is important that the establishment of a closer cooperation between some Member States does not permit them to escape from the rules …
The Commission's Role In The Igc's Drafting Of The Treaty Of Amsterdam, Michel Petite
The Commission's Role In The Igc's Drafting Of The Treaty Of Amsterdam, Michel Petite
Fordham International Law Journal
This essay shall attempt to describe initially how the Commission approached the Amsterdam negotiation in the first place. It will explore the institutional issues that it addressed and the strategies it implemented. It then evaluates the likely impact of the new provisions of the Treaty of Amsterdam upon the Commission.
An Appraisal Of The Treaty Of Amsterdam From The Perspective Of A Member Of The European Parliament, Laurens Jan Brinkhorst
An Appraisal Of The Treaty Of Amsterdam From The Perspective Of A Member Of The European Parliament, Laurens Jan Brinkhorst
Fordham International Law Journal
When one has such learned predecessors, representing the two powerful institutions, who give such a balanced view of the Treaty of Amsterdam (or “Amsterdam Treaty”), what more can a simple parliamentarian say? I think my first comment would be, Amsterdam--yes, the worst has been avoided. I think that this comment is an honest compliment to the efforts of my predecessors during the Intergovernmental Conference (“IGC”). The outcome could have been much worse.
External Relations Powers Of The European Community, Jacques H.J. Bourgeois
External Relations Powers Of The European Community, Jacques H.J. Bourgeois
Fordham International Law Journal
As a result both of the way in which the external relations powers of the European Community (“EC” or “Community”) have been organized by the Treaty establishing the European Community (“EC Treaty”) and of the interpretation by the Court of Justice of the European Communities (“ECJ”), an analysis of the evolution of the external relations powers requires distinguishing between powers relating to foreign trade in the strict sense of the terms, i.e., “common commercial policy” under Article 113 of the EC Treaty, and other external relations powers both express and implied. The subject of this contribution is the external relations …
European Community Tax Law And Its Development In Light Of The Recent Case Law Of The European Court Of Justice, Siegbert Alber
European Community Tax Law And Its Development In Light Of The Recent Case Law Of The European Court Of Justice, Siegbert Alber
Fordham International Law Journal
Part I of this Essay addresses the Community's impact on national taxation in general. Part II examines Article 95 of the EC Treaty concerning the prohibition on discriminatory internal taxation. The aim is to show, based on a brief summary of the relevant legislation, to what extent the Court has developed its case law in specific areas of Community tax law. Emphasis will then be placed on the structure and various legal aspects of Article 95, which, although a rather complex provision, often tends to be neglected in favour of the harmonized taxes as well as the recent developments in …
Local Administration And The Binding Nature Of Community Directives: A Lesser Known Side Of European Legal Integration, Kurt Riechenberg
Local Administration And The Binding Nature Of Community Directives: A Lesser Known Side Of European Legal Integration, Kurt Riechenberg
Fordham International Law Journal
This article will deal with specific aspects of the divided-power system of the European Union and provide a legal analysis concerning federalism issues in the European Union raised before the Court of Justice that are similar to those in the United States. First, the article will reference recent U.S. case law on federalism. The bulk of the Article will concentrate on the question of whether and to what extent European Community ("EC") directives, as legislative instruments, are capable of mandating specific courses of action to be pursued on the local or regional level in Member States. Next, the article will …
The "Power Of Appraisal" (Pouvoir D'Appreciation) Of The Commission Of The European Communities Vis-À-Vis The Powers Of Judicial Review Of The Communities' Court Of Justice And Court Of First Instance, Virpi Tiili, Jan Vanhamme
The "Power Of Appraisal" (Pouvoir D'Appreciation) Of The Commission Of The European Communities Vis-À-Vis The Powers Of Judicial Review Of The Communities' Court Of Justice And Court Of First Instance, Virpi Tiili, Jan Vanhamme
Fordham International Law Journal
It is, therefore, clear that the Courts must test the soundness of the Commission's appraisals. This means, however, that judges are obliged to examine the administrative file, thereby inevitably bringing themselves intellectually close to building their own bridge from the facts, via the legal framework of the case, to a legal outcome in casu. In some instances, it may prove almost impossible to disguise the conflict between the Court’s and the Commission's assessments in the judgment, especially if annulment or damages is the outcome of the case. It is in this regard that an appropriate balance must be found between …
Waging War Against The World: The Need To Move From War Crimes To Environmental Crimes, Mark A. Drumbl
Waging War Against The World: The Need To Move From War Crimes To Environmental Crimes, Mark A. Drumbl
Fordham International Law Journal
The international community has been more hesitant in accounting for the environmental consequences of war. All that the international community has been able to negotiate is scattered collateral references in a variety of treaties and conventions. One immediate task will be to consolidate these references into a single document or treaty. A more daunting task, of which this easy shall provide a brief overview, is to develop a mechanism to ensure compliance with these standards, to deter deviation therefrom, and to allocate responsibility for wrongdoing. More specifically, this essay considers the ability of the International Criminal Court to perform such …
Women, War, And Words: The Gender Component In The Permanent International Criminal Court's Definition Of Crimes Against Humanity, Brook Sari Moshan
Women, War, And Words: The Gender Component In The Permanent International Criminal Court's Definition Of Crimes Against Humanity, Brook Sari Moshan
Fordham International Law Journal
This Comment addresses the intersection of gender issues and human rights law as illustrated by the formation of the permanent ICC. Specifically, it argues that the inclusion of gender- motivated crimes in the ICC's definition of crimes against humanity was necessary to emphasize women's wartime experiences and injuries, but that such inclusion is not enough to ensure gender justice as the ICC begins to prosecute war crimes and crimes against humanity. Part I of this Comment discusses the concept of gender-based crimes and illustrates these crimes through recent examples of gender-based violence. It also reviews the history of the ICC, …
The Protection Of Human Rights In The New Polish Constitution, Ryszard Cholewinski
The Protection Of Human Rights In The New Polish Constitution, Ryszard Cholewinski
Fordham International Law Journal
This Article examines the extent of human rights protection under the Constitution of the Republic of Poland of April 2, 1997 ("new Polish Constitution" or "Constitution"), adopted on April 2, 1997, by the Polish National Assembly and approved by the Polish people in a referendum on May 25, 1997. The Constitution, a lengthy document composed of 243 articles, came into force on October 17, 1997, and is one of the last constitutions to be adopted in Central and Eastern Europe since the start of the political and socio-economic transformations of the post-communist era. This Article emphasizes the importance of the …