Law Commons^™

Promise Unfulfilled: Law, Culture, And Women's Inheritance Rights In Ghana, Jeanmarie Fenrich, Tracy E. Higgins

Fordham International Law Journal

This Report presents the findings of a Fordham delegation. It consists of three parts. Part I sets out Ghana's obligations under international law as they relate to issues of women's equality generally and inheritance rights specifically. Part II describes the sources of Ghanaian law relevant to the issue. Part II begins with a very general description of the Ghanaian family. It then proceeds to analyze in some detail customary law governing marriage and property, including the customary law of intestate succession, which governed estates prior to 1985. Part II then describes both constitutional and statutory law relevant to intestate succession, …

Homogenized Law: Can The United States Learn From African Mistakes?, Beverly I. Moran

Fordham International Law Journal

This Essay is an attempt to make sense of the author's experiences working with legal reform in Eritrea. Specifically, what might drive people who are intelligent and informed to create statutes that: (a) probably will not work (the problem of "legal absorption" or "legal transplants"); or (b) if applied will have adverse consequences. In this Essay, the author: Gives a brief introduction on Eritrea; uses an Eritrean intellectual property example to illustrate why countries adopt laws that seem opposed to their interests; gives a brief history of Africa and the transplantation of Western law; gives a brief history of Tax …

Current Apathy For Coming Anarchy: Building The Special Court For Sierra Leone, Nicole Fritz, Alison Smith

Fordham International Law Journal

Part I of this Article examines the chronology of the decade-long conflict in Sierra Leone. It provides an illuminating backdrop against which the Special Court may be assessed and highlights particular features that the institutional design of the Special Court would have to accommodate. Part II explores the precedents for the Special Court. Specifically, it considers the establishment of the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR"), and the impetus behind the International Criminal Court, developments that parallel in time the unfolding of Sierra Leone's conflict. Part III subjects particular features …

Issues On Ethnicity And Governance In Nigeria: A Universal Human Rights Perspective, Ema I. Orji

Fordham International Law Journal

This Article focuses on the plight of the Igbo ethnic group of southeast Nigeria. It traces the historical and political evolution of Nigeria with emphasis on ethnic relations. In arguing that the Igbo are victims of fundamental human rights violations, references are made to relevant international human rights instruments, as well as to the various constitutional guarantees entrenched in various Nigerian constitutions. The marginalization of the Igbo is discussed, particularly with regard to disparities in national education programs. This Article also discusses the Igbo right to self-determination and the failure of the international community to intervene on behalf of the …

The Prosecution Of Persons Who Sexually Exploit Children In Countries Other Than Their Own: A Model For Amending Existing Legislation, Daniel Edelson

Fordham International Law Journal

Part I of this Note describes child sex tourism, focusing on both the tourists and their victims. Additionally, Part I discusses extraterritorial legislation as a means to combat child sex tourism. Part II presents country specific examples of extraterritorial legislation against the sexual exploitation of children. Part III sets forth a model of extraterritorial legislation against child sex tourism as well as non-legislative steps that countries should take in response to child sex tourism. Finally, Part III recommends changes that the United States should adopt to more effectively address child sex tourism.

The Working Group On Aggression At The Preparatory Commission For The International Criminal Court, Silvia A. Fernandez De Gurmendi

Fordham International Law Journal

The Working Group on aggression has tackled both main issues referred to in article 5 of the Rome Statute and Resolution F, namely the definition of the crime and the conditions of exercise of jurisdiction by the Court. For some participants these two issues are closely interrelated to the point that one cannot be considered without the other. Without prejudice to the substance of this view, in practice, a separate debate has taken place to allow an orderly discussion of each aspect of the problem.

Discussions during and after Rome demonstrate that there is no easy solution to any of …

The Draft Budget For The First Financial Period Of The Court , Rolf Einar Fife

Fordham International Law Journal

The preparatory work before the entry into force of the Rome Statute of the International Criminal Court (“Rome Statute” or “Statute”) is nearing completion. Basic normative structures governing the establishment and work of the future International Criminal Court (“Court”) have been negotiated. With the discussions on the first draft Budget (“Budget”) and other issues related to the administrative and financial operation of the Court, preparations have taken a significant “practical turn.” The fundamental aim of the Budget is to translate the objectives of the Court in monetary terms and to provide the resources needed by the Court's organs and the …

The Making Of The Basic Principles Of The Headquarters Agreement , Zsolt Hetesy

Fordham International Law Journal

The preparation of the Basic Principles of the Headquarters Agreement presents a unique challenge for the PrepCom. As explained earlier, the two-step process for the conclusion of the headquarters agreement has never been utilized before in the history of international organizations. Other factors, such as the time-pressure created by the ongoing work in a related Working Group also made the task more difficult. The Bureau of the PrepCom responded to the challenge with a unique working-method and procedure. The process, which may look somewhat cumbersome, managed to forge a heightened level of understanding among the Bureau, the host country, and …

Rule Of Procedure Of The Assembly Of States Parties To The Rome Statute Of The International Criminal Court , Saeid Mirzaee Yengejeh

Fordham International Law Journal

In this Essay, the author intends to elaborate only on those Rules that are unique, or were the subject of lengthy discussion in the working group. It is practically impossible to discuss all rules contained in the Rules of Procedure. Before beginning, one point needs to be clarified. There are a number of rules in the Rules of Procedure that simply repeat the provisions of the Statute. This was a conscious decision made by the working group, which included harmless repetitions in order to provide a handy set of rules for future delegates to the Assembly that will cover all …

International Criminal Justice From Paper To Practice - A Contribution From The International Criminal Tribunal For Rwanda To The Establishment Of The International Criminal Court, Adama Dieng

Fordham International Law Journal

The international society's pursuit of international criminal justice entails the creation of a stateless jurisdiction with international scope that holds individuals, rather than States, responsible. As the institutions mandated to exercise international criminal jurisdiction begin to develop their operations, it becomes clear that the execution of justice entails a wide range of policy decisions normally undertaken by the State, in terms of legal aid, policing, education, and information, to mention but a few areas. The International Criminal Court may draw upon the wealth of operational experience of the Tribunals in these areas, but will nonetheless continue to develop its own …

The Cooperation Of States With The International Criminal Court , Valerie Oosterveld, Mike Perry, John Mcmanus

Fordham International Law Journal

This Article explores the various cooperation obligations included within the Rome Statute related to arrest and surrender; investigation and evidence gathering; privileges and immunities of Court officials; witness protection; enforcement of ICC sentences, fines, and forfeiture orders; and offenses against the administration of justice. The nature of each obligation will be discussed within the context of the Rome Statute itself, its negotiation history, and a comparison of how Canada, Switzerland, and the United Kingdom have implemented their obligations to cooperate with the ICC into their domestic law, to the end of providing technical assistance to States undertaking the important task …

The Case Against The International Criminal Court , Lee A. Casey

Fordham International Law Journal

This article argues against participation by the United States in the International Criminal Court. The article attempts to show that participation in the ICC regime would be inconsistent with American democracy, inimical to American national interests and would violate the Constitution. Were the United States to become a State party to the Rome Statute, it would, for the first time since July 4, 1776, acknowledge the superior authority of an institution neither elected by the American people, nor accountable to them for its actions. Not surprisingly, ratification of the Rome Statute also would violate the Constitution

The International Criminal Court Arrives - The U.S. Position: Status And Prospects , John Washburn

Fordham International Law Journal

This Essay first examines the current official U.S. position on the Court. The second section describes the development of the position as stated by Ambassador Prosper throughout the negotiations for the ICC from 1994 to the present. The final section reviews the prospects for changes in the U.S. position in the early years of the ICC's existence.

Parallel Imports, The Intraband/Interbrand Competition Paradigm, And The Hidden Gap Between Intellectual Property Law And Antitrust, Eleanor M. Fox

Fordham International Law Journal

The exhaustion doctrine, in intellectual property law, restrains firms from restraining competition among different sellers of the same product. Thus, it restrains firms from restraining intraband competition. In U.S. antitrust law, firms have no duty to create or tolerate competition in their own product, and if they impose territorial restraints in the course of distributing their product, those restraints are presumed to be efficient for the firm and efficient or at least neutral for competition and consumers. This Essay argues that there is a gap between the intellectual property law and the antitrust law of vertical (intraband) restraints.

China's Safeguard Measures Under The New Wto Framework, Lihu Chen, Yun Gu

Fordham International Law Journal

This Essay inquires into the nature of China's new safeguard regulation, its significance in China's new trade regime, and, in the authors' view, some of its shortcomings. Part I gives a brief overview of the purpose of safeguard measures and the place of safeguard regulations in China's new trade regime. Part II describes some of the challenges that China's producers will face in the wake of the newly liberalized domestic market, and observes that the use of safeguard measures will become both necessary and important in the coming years in order to facilitate adjustment to this new environment. Part III, …

The Right Of A Minor In Israel To Participate In The Decision-Making Process Concerning His Or Her Medical Treatment, Yehiel S. Kaplan

Fordham International Law Journal

The Article raises questions concerning the validity of the age of eighteen years as the youngest age allowing independent consent of a minor in Israel to his or her medical treatment. One of the primary suggestions in the Article is that there is a need to apply the informed consent doctrine to the medical treatment of Israeli and other minors who possess the appropriate capacities deemed necessary for comprehending the full implication of their consent. The authors believe that the doctrine of “developing capacities,” as formulated in Article 12 of the U.N. Convention on the Rights of the Child, to …

Alientating "Human" From "Right": U.S. And Uk Non-Compliance With Asylum Obligations Under International Human Rights Law, Inna Nazarova

Fordham International Law Journal

Snapshot of the state of asylum seekers' rights in the United States and the UK at the time it was written. It provides an overview of U.S. and UK obligations to asylum seekers under international human rights law. The Comment also discusses the basics of U.S. and UK domestic law and procedure relevant to claims for asylum. The author advocates that the United State and the UK adopt a comprehensive approach to preserve asylum seekers' rights and concludes that domestic law should not become a pretext for human rights violations of asylum seekers in the post-September 11th world.

Introduction, Thane Rosenbaum

Fordham International Law Journal

The purpose of this special issue of the Fordham International Law Journal and the underlying Symposium that was held on November 1, 2001 at Fordham Law School is to examine the moral dimensions of the question of restitution in the aftermath of atrocity. This special edition will specifically explore questions regarding restitution for victims of the Holocaust nearly sixty years after the liberation of the concentration camps of Europe.

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

Fordham International Law Journal

Suppression and erasure have played a significant role in the context of the Holocaust. The massive number of deaths yielded a terrible weight of silence, and the erasure of memory occurred in a multiplicity of ways, including: (1) viciously and cynically on the part of many who sought to hide all traces of their crimes; (2) protectively on the part of some who sought to save the lives of the prosecuted; and (3) inevitably as the result of the disappearance of a world and culture destroyed beyond any possibility of resuscitation by the few individuals who survived in displacement and …

The Holocaust Claims Processing Office's Handling Of Art Claims, Monica Dugot

Fordham International Law Journal

Overview of the Holocaust Claims Processing Office (“HCPO”) and activities relating to Holocaust-era art claims filed with HCPO. Goes into the history of the HCPO and its mission to assist claimants seeking recovery of assets held in European banks, proceeds from Holocaust-era insurance policies, and lost, looted, or stolen art. Overall it is a description of the Deputy Director's work in this field over the prior four years.

Welcoming Remarks, John Feerick, Thane Rosenbaum

Fordham International Law Journal

Welcoming remarks and overview of the program of the Symposium.

Keynote Address, Stuart Eizenstat

Fordham International Law Journal

Keynote address given by the Clinton Administration's leader on Holocaust-era issues as Special Representative of the President and Secretary of State. The address covered the details of major agreements with the Swiss, Germans, Austrians, and French concerning monetary restitution. The adddress provides an overview of the development of a push in the U.S. to take on the Swiss banks on behalf of Holocaust survivors and their heirs.

The Methods Used To Secure Monetary Restitution, Transcripts

Fordham International Law Journal

Record of panel discussion of the methods used to secure monetary restitution for Holocaust survivors and their heirs. Panelists discussed class action suits brought on behalf of survivors and the use of large-scale litigation to win monetary restitution.

Allocating The Proceeds Of Settlements: Looted Assets, Successor Interests, Recovered Properties, And Settlement Funds, Transcripts

Fordham International Law Journal

Record of panel discussion on how the proceeds of Holocaust restitution settlements should be allocated. Special attention is paid to looted assets, successor interests, recovered properties, and settlement funds.

Kosovo And The Limits Of International Law, David Wippman

Fordham International Law Journal

This article examines the legality and wisdom of the North Atlantic Treaty Organization (“NATO”) intervention in Kosovo in 1990. The Kosovo campaign pushed at the boundaries of international law in at least two important respects. First, NATO's decision to engage in large-scale military action without prior Security Council authorization raised significant doubts about the status of the law governing the use of force and the viability of United Nations (“U.N.”) primacy in matters of international peace and security. Second, NATO's high-altitude bombing campaign, conducted without a single NATO combat casualty but with significant civilian casualties within the FRY, called into …

Introduction- Twenty-Five Years Of The Fordham International Law Journal, Joseph C. Sweeney

Fordham International Law Journal

A review of the history of the Fordham ILJ. It is a partial reprint of an essay published in 20 FORDHAM INT'L L.J. 1 (1996). The essay attempts to briefly summarize the purpose of the ILJ and past volumes.

The Preparatory Commission For The International Criminal Court, Philippe Kirsch, Valerie Oosterveld

Fordham International Law Journal

As it becomes increasingly clear that the International Criminal Court will be set up in the near future, it is important to reflect on the work of the Preparatory Commission for the International Criminal Court. When the Rome Statute was being negotiated, it became very clear that additional documents would be necessary in order to create a fully functioning ICC. At the time, eight such documents were identified and included in Resolution F of the Final Act of the Rome Diplomatic conference. As work on these documents nears completion, States have begun to consider the practicalities of setting up the …

Financial Regulations And Rules Of The Court , Georg Witcschel

Fordham International Law Journal

The PrepCom established a working group on financial regulations and rules, which held three sessions in November 2000, February 2001, and September 2001. While in part the models of the U.N. and draft ITLOS financial regulations could simply be followed, the PrepCom also had to tackle a number of unprecedented and difficult issues. This Essay describes how the PrepCom addressed the main novel questions.

The Agreement On Privileges And Immunities Of The International Criminal Court , Phakiso Mochochoko

Fordham International Law Journal

The purpose of this Essay is to examine the provisions of the Agreement and provide the reader with hopefully useful background information on how compromises that enabled delegates to finalize the Agreement were reached. The hope is that this will augur well for a better understanding of the Agreement by filling some of the gaps that may be apparent from a cursory reading of the Agreement. The views expressed herein are those of the author and do not in anyway bind delegates that negotiated the Agreement.

Operational Aspects Of Setting Up The International Criminal Court: Building On The Experience Of The International Criminal Tribunal For The Former Yugoslavia , Hans Holthuis

Fordham International Law Journal

This Essay examines the practical experience of the International Criminal Tribunal for the former Yugoslavia ("ICTY") and, in particular, its Registry with regard to operational matters and its relevance within the setup of the International Criminal Court ("ICC"). While the first part is dedicated to the basic legal groundwork that forms the basis for the work of the ICC (including its financial regulations, a multilateral agreement on its privileges and immunities, and the agreement governing the relationship between the ICC and the United Nations), the second part deals with the more practical aspects of the question of how to start …