Law Commons^™

Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah

Articles

This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.

Assessing The Potential Impact Of The Proposed Hague Jurisdiction And Judgments Convention On Human Rights Litigation In The United States, Thomas E. Vanderbloemen

Duke Law Journal

No abstract provided.

Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders

Dalhousie Law Journal

Judicial decisions which recognize aboriginal or treaty rights to natural resources inevitably lead on to a process of negotiation, as governments and aboriginal and other users of the resource define the access and management regimes which allow for practical implementation of the legal rights. Courts should be cognizant of the impact of their decisions on such negotiations, and provide adequate clarity and substantive guidance to negotiators. This article considers the decisions of the Supreme Court of Canada in the Marshall case from this perspective, and details the shortcomings which made the prospects for successful negotiations less favourable. The weaknesses in …

Marshalling Principles From The Marshall Morass, Leonard Rotman

Dalhousie Law Journal

The Marshall case is the latest in a long series of Supreme Court of Canada decisions concerned with the interpretation of treaties between the Crown and aboriginal peoples in Canada. While the majority and minority judgments agreed on the principles of treaty interpretation to be applied in the case, the significant divergence in opinion between the majority and minority decisions provides important commentary on the differences between articulating and applying these principles. The Marshall case is also noteworthy for the manner in which it addresses similarities and differences pertaining to aboriginal and treaty rights. Because of these various traits, the …

An Empty Shell Of A Treaty Promise: R. V. Marshall And The Rights Of The Non-Status Indians, Pamela Palmater

Dalhousie Law Journal

One of the difficult issues presented by R. v. Marshall is that of who is a Mi'kmaq person, or more generally who is entitled to claim to be a beneficiary of the Treaties of 1760-61. This paper examines a number of possible approaches to this matter, including ones based on residence (on or off reserve), descent and the terms of the Indian Act. It notes the deficiencies of existing tests and of Canadian case law that has addressed Aboriginal identity in other contexts. It concludes by noting that the negotiations which must follow in the wake of Marshall present the …

Bilateral Maritime Counter-Drug And Immigrant Interdiction Agreements: Is This The World Of The Future?, Joseph E. Kramek

University of Miami Inter-American Law Review

No abstract provided.

Women's Rights And The Public Morals Exception Of Gatt Article 20, Liane M. Jarvis

Michigan Journal of International Law

The public morals exception in Article XX of the General Agreement on Tariffs and Trade (GATT) could and should be interpreted in accordance with evolving human rights law on women's rights. This clause provides an exception to the general rule that members of the World Trade Organization (WTO) cannot take measures against other Members that would restrict trade. Under Article XX, WTO members may restrict trade for a variety of social reasons, including protecting the environment, preventing prison labor, and otherwise promoting "public morals.” This Note will argue in particular that a nation should be allowed to invoke the public …

Extraditing Israeli Citizens To The United States- Extradition And Citizenship Dilemmas, Yaffa Zilbershats

Michigan Journal of International Law

This article will address the problems of extraditing Israeli citizens to the United States from both a normative and substantive perspective. The analysis will lead to a conclusion that the United States and Israel should adopt an amendment to the United States-Israel extradition treaty based on the new provision of the Israeli law regarding the extradition of its citizens. This analysis will also support general conclusions regarding the definitions of extradition and citizenship.

Messages From Frank's Landing: A Story Of Salmon, Treaties, And The Indian Way, Charles F. Wilkinson

Books, Reports, and Studies

This digital resource contains only an abstract, cover image and table of contents information from the published book.

Print copy of book is available in the University of Colorado’s Wise Law Library: http://lawpac.colorado.edu/record=b243280~S0

Contents: Muck Creek -- Nisqually River -- George Hugo Boldt -- Fort Lewis -- Wa He Lut -- Afterword

The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The New Chemical Weapons Convention And Export Controls: Towards Greater Multilateralism, Urs A. Cipolat

Michigan Journal of International Law

The article is structured in five parts. Section I gives an overview of the history of the CWC. Section II focuses on the CWC' s material scope. This discussion is important in order to determine the items that will fall under an eventual export control obligation. Section III presents the main obligations under the CWC, while Section IV deals exclusively with the specific obligations pertaining to export controls. The implementation of these specific obligations-which, for the purposes of this article, are referred to as transfer rules-is the focus of Section V.

Trade And Inequality: Economic Justice And The Developing World, Frank J. Garcia

Michigan Journal of International Law

This Article attempts to lay the foundation for such a framework in the area of international trade law. More specifically, this Article develops the argument that the principle of special and differential treatment, a key element of the developing world's trade agenda, plays a central role in satisfying the moral obligations that wealthier states owe poorer states as a matter of distributive justice. Seen in this light, the principle of special and differential treatment is more than just a political accommodation: it reflects a moral obligation stemming from the economic inequality among states.

The Desirability Of Agreeing To Disagree: The Wto, Trips, International Ipr Exhaustion And A Few Other Things, Vincent Chiappetta

Michigan Journal of International Law

This Article proposes a procedural and substantive approach specifically designed to achieve this result. Concerning process, interim national and regional decisionmaking and the multilateral debate must expressly broaden and clarify the values and interests at stake. Three basic operational principles advance this objective. First, comparisons based on IPR labels (patent, copyright, and the like) confuse rather than illuminate. Instead, focus must be on the actual underlying policy justifications and objectives. Second, the full range of implicated justifications (economic and otherwise), including those outside the decision-makers' own norms, must be expressly identified and considered. Finally, any position taken or decision reached …

The Statute Of The International Criminal Court And Third States, Gennady M. Danilenko

Michigan Journal of International Law

This paper examines the principal legal and political effects of the Rome Statute on non-parties. In particular, it explores the significance of the creation of a new powerful international institution for all members of the international community. It discusses the jurisdictional reach of the ICC which will inevitably affect all States. This paper also analyzes possible application of some provisions of the Rome Statute to non-States Parties in so far as these may reflect or generate customary international law. It suggests that despite the traditional principle of treaty law, according to which treaties do not bind Third States, the Rome …

Racing The Rising Tide: Legal Options For The Marshall Islands, J. Chris Larson

Michigan Journal of International Law

This Note first describes the threat posed by accelerated sea-level rise. A review of scientific data shows that global warming causes ocean levels to rise and that RMI may need to be evacuated. The current diplomatic efforts to decrease global warming offer few assurances to RMI. In fact, the countries that have obligated themselves to reduce global warming are actually increasing emissions of gases that cause global warming.

Labor Rights, Globalization And Institutions: The Role And Influence Of The Organization For Economic Cooperation And Development, James Salzman

Michigan Journal of International Law

This Article has four sections. The first recounts the history of the OECD, from its creation as the overseer of the Marshall Plan to its current prominence as global economic analyst, and explains its operations. The second section explores its influence on the development of labor rights, examining the well-known OECD Guidelines for Multinational Enterprises, publications on trade and labor by the Employment, Labor and Social Affairs Directorate, and the events surrounding South Korea's accession to the OECD. Each of these activities, though quite different from one another (and, in combination, very different from the activities of other IGOs), provided …

Footprints Of Death: Cluster Bombs As Indiscriminate Weapons Under International Humanitarian Law, Virgil Wiebe

Michigan Journal of International Law

This Article applies these principles of discrimination to the real, rather than idealized, use and characteristics of cluster bombs. Briefly stated, these principles call upon parties to an armed conflict to distinguish between civilians and combatants and to weigh the military advantages of a particular weapon or type of attack against the harm it will do to civilians and civilian objects. This Article also considers briefly the global problem of cluster munitions and examines fundamental components of the discrimination principle as they apply to cluster bombs. As three specific case studies, it analyzes the use of cluster bombs by breakaway …

The United Tribe Of Shawnee Indians: Resurrection In The Twentieth Century, John W. Ragsdale Jr

Faculty Works

Tribal sovereignty is not necessarily a function of land area, population size or competitive significance. The essence lies in the freedom to make or recognize rules and principals of personal conduct and social order. This essential liberty springs from the community between particular people, their past, future and their sacred land base. The legislative history of the Federal Recognized Indian Tribe List Act of 1994 states that recognition of a tribe is critical, not just to the tribe's interests, but to the legitimacy of federal power, as the Constitution empowers Congress to legislate only with respect to Indian tribes rather …

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Globalization And The Design Of International Institutions, Cary Coglianese

All Faculty Scholarship

In an increasingly globalized world, international rules and organizations have grown ever more crucial to the resolution of major economic and social concerns. How can leaders design international institutions that will effectively solve global regulatory problems? This paper confronts this question by presenting three major types of global problems, distinguishing six main categories of institutional forms that can be used to address these problems, and showing how the effectiveness of international institutions depends on achieving “form-problem” fit. Complicating that fit will be the tendency of nation states to prefer institutional forms that do little to constrain their sovereignty. Yet the …

Enforceability Of Executive-Congressional Agreements In Lieu Of An Article Ii Treaty For Purposes Of Extradition: Elizaphan Ntakirutimana V. Janet Reno, Panayiota Alexandropoulos

Villanova Law Review

No abstract provided.

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) …

Commitment And Compliance: The Role Of Non-Binding Norms In The International Legal System (Introduction), Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book describes a study undertaken to determine the extent to which states comply with non-binding legal principles as compared to rules of law and focused on environmental soft law. The leaders of the study provided four factors they predicted would have an effect on compliance with soft law: institutional setting, regional diversity, the type of obligation, and generality and specificity. The chapter next describes the international legal system and its recent expansion, then describes a variety of methods for resolving international issues. Next, the chapter notes a few possible reasons why states prefer to undertake …

Treaties, Human Rights, And Conditional Consent, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

No abstract provided.

America, Defender Of Democratic Legitimacy?, James C. Hathaway

Articles

American exceptionalism - a belief that the United States has a unique mission to lead the world, but ought logically to be exempt from the rules it promotes - is at the root of much of the American academy's effort to rationalize the US government's increasing rejection of multilateralism as the cornerstone of modern public international law. Even American scholars who disagree fundamentally on the problems with multilateralism (Kenneth Anderson arguing that it favours anti-democratic intervention by unelected NGOs, Michael Reisman asserting that it privileges elitist state-based lawmaking in the face of more democratic non-state 'lawmaking' processes) can agree on …

Refugee Rights Are Not Negotiable, James C. Hathaway, Anne K. Cusick

Articles

America's troubled relationship with international law, in particular human rights law, is well documented. In many cases, the United States simply will not agree to be bound by international human rights treaties. For example, the United States has yet to ratify even such fundamental agreements as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Convention on the Rights of the Child. When the United States does agree to become a party to an international human rights treaty, it has often sought to condition its acceptance …

America As Pattern And Problem, Carl E. Schneider

Articles

Since the days of Tocqueville, foreign observers have seen America as both a pattern and a problem. They still do, and in ways that illuminate the way law deals with bioethical issues both here and abroad. America was long exceptional in having a written constitution, in allowing its courts the power of judicial review, and in letting courts exercise that power to develop and enforce principles of human rights. Today, that pattern looks markedly less exceptional. After the Second World War, Germany and Japan were persuaded to adopt constitutions that included human rights provisions and that endowed courts with the …