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Full-Text Articles in Law

Reforming History: Turkey’S Legal Regime And Its Potential Accession To The European Union, Dinesh D. Banani Dec 2003

Reforming History: Turkey’S Legal Regime And Its Potential Accession To The European Union, Dinesh D. Banani

Boston College International and Comparative Law Review

For the past decade, Turkey and the European Union (EU) have had serious discussions about Turkey's possible entrance into the EU. The intensity of these talks, however, has always been tempered by Turkey's extremely questionable human rights practices. The most marked aspects of this record are the country's treatment of the Kurdish minority and its quashing of political dissent through the heavyhanded use of its legal system. In this note, I will argue that, despite Turkey's increasing political and economic stature in the world, it will not be able to gain entry into the EU until ...


We’Ve Come A Long Way Baby (Or Have We?): Banning Tobacco Advertising And Sponsorship In The European Union, Melissa Alegre Dec 2003

We’Ve Come A Long Way Baby (Or Have We?): Banning Tobacco Advertising And Sponsorship In The European Union, Melissa Alegre

Boston College International and Comparative Law Review

In October 2000, Europe's highest court struck down a Community directive that effectively banned advertising and sponsorship of tobacco products in the European Union. Regulation of tobacco products has been on the Community's agenda for over a decade, but it was not until l998 that the necessary political support to enact any such legislation became available. The broad scope of the ensuing directive reflected the increasing awareness of the harmful health effects of tobacco, but this remains a controversial topic. The court decision may only be a temporary victory for the tobacco lobby since the Community still is ...


It’S “Instant Custom”: How The Bush Doctrine Became Law After The Terrorist Attacks Of September 11, 2001, Benjamin Langille Dec 2003

It’S “Instant Custom”: How The Bush Doctrine Became Law After The Terrorist Attacks Of September 11, 2001, Benjamin Langille

Boston College International and Comparative Law Review

Historically, courts have recognized a customary international law only upon finding evidence of uniform state practice over a protracted period of time. In today's rapidly evolving global society, however, "instant custom" theorists contend that new customary international laws may form in much less time than the decades upon decades of consistent practice traditionally required. This Note considers the instant custom theory and argues that the Bush Doctrine became a new customary international law in the immediate aftermath ofthe terrorist attacks of September 11, 2001.


Strictness And Subsidiarity: An Institutional Perspective On Affirmative Action At The European Court Of Justice, Sean Pager Dec 2003

Strictness And Subsidiarity: An Institutional Perspective On Affirmative Action At The European Court Of Justice, Sean Pager

Boston College International and Comparative Law Review

The move to strict review of gender equality cases by the European Court of Justice raises questions regarding the institutional role of the Court. Comparisons between the ECJ's affirmative action case law and US jurisprudence serve to illuminate the very different role played by the ECJ as the central arbiter of a supranational judiciary. In its readiness to decide contextual issues better left to the national courts, the European Court has taken an "American approach" to affirmative action out of keeping with its role. Closer attention to the dynamics of the Court's partnership with national judiciaries would serve ...


Prospects For Progress: The Trips Agreement And Developing Countries After The Doha Conference, L Danielle Tully Dec 2003

Prospects For Progress: The Trips Agreement And Developing Countries After The Doha Conference, L Danielle Tully

Boston College International and Comparative Law Review

Intellectual property rights (IPRs) have long been the subject of contentious debate between developed and developing countries. While providing an incentive to invest in and develop new technologies, IPRs also vastly increase the cost of these new technologies to developing countries. Despite disagreement on the proper role for IPRs in the global economy, IPRs became a major element in the 1994 Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which established the World Trade Organization (WTO). Effective on January 1, 1995, the Trade-Related Aspects of Intellectual Property Agreement (TRIPS Agreement) formally linked compliance with minimum protection standards ...


A Truly Level Playing Field For International Business: Improving The Oecd Convention On Combating Bribery Using Clear Standards, Christopher K. Carlberg Dec 2003

A Truly Level Playing Field For International Business: Improving The Oecd Convention On Combating Bribery Using Clear Standards, Christopher K. Carlberg

Boston College International and Comparative Law Review

Combating bribery in international business has become increasingly important in a global economic environment in which deregulation and privatization are popular trends. The Organisation for Economic Co-Operation and Development's (OECD's) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions is an important step towards leveling the playing field for foreign companies competing for business abroad. However, this Note concludes that, in order to improve the uniform application of the Convention, the Convention's signatory parties should: (1) adopt a minimum five-year statute of limitations requirement; (2) adopt a five-year maximum term of imprisonment for natural ...


American Law And Policy On Assassinations Of Foreign Leaders: The Practicality Of Maintaining The Status Quo, Nathan Canestaro Dec 2003

American Law And Policy On Assassinations Of Foreign Leaders: The Practicality Of Maintaining The Status Quo, Nathan Canestaro

Boston College International and Comparative Law Review

Suspending the ban on assassinations-as established in Executive Order 12333-serves no practical purpose. The Executive Order is not an obstacle to effective prosecution of the War on Terrorism; in fact, its reach is very limited. Although common sense might suggest that "assassination" equates with the targeted killing of a specific individual, the term is in fact a legal term of art with a very narrow definition derived from the Law of War. As a result, Executive Order 12333 only prohibits a very narrow spectrum of attacks in wartime or against clear threats to national security. As the United States has ...


Mirage Of Defense: Reexamining Article Five Of The North Atlantic Treaty After The Terrorist Attacks On The United States, Michael A. Goldberg Dec 2003

Mirage Of Defense: Reexamining Article Five Of The North Atlantic Treaty After The Terrorist Attacks On The United States, Michael A. Goldberg

Boston College International and Comparative Law Review

In 1949, twelve nations formed a regional alliance in an effort to counter perceived Soviet expansion, creating the North Atlantic Treaty Organization (NATO). Collective defense-assisting member states under attack by an outside country, as articulated in Article Five of the North Atlantic Treaty-has historically been its core function. Following fifty years of dormancy, Article Five was invoked after the September 11, 2001 terrorist attacks on the United States. This Note discusses the expanding role of Article Five, increasing regionalization challenges, and whether the Treaty's obligations compel affirmative actions from its members.


The Treatment Of Sps Measures Under Nafta Chapter 11: Preliminary Answers To An Open-Ended Question, Todd Weiler May 2003

The Treatment Of Sps Measures Under Nafta Chapter 11: Preliminary Answers To An Open-Ended Question, Todd Weiler

Boston College International and Comparative Law Review

NAFTA Chapter 11 permits eligible foreign investors to use binding international arbitration to seek compensation for the harmful economic impacts of most regulatory measures. This mechanism effectiYely provides a second avenue of redress for individuals affected by risk regulation, in addition to any remedies that may be available to their governments acting through the WTO. However, because not all risks are equal, neither are all regulations of equal importance. It follows that the international regimes, which regulate the use of these measures, must be able to differentiate between them. In this regard, there is a need to interpret the more ...


Science And International Trade, John Garvey May 2003

Science And International Trade, John Garvey

Boston College International and Comparative Law Review

No abstract provided.


Science And International Trade – Third Generation Scholarship, Jeffery Atik, David A. Wirth May 2003

Science And International Trade – Third Generation Scholarship, Jeffery Atik, David A. Wirth

Boston College International and Comparative Law Review

No abstract provided.


Human Rights Compliance And The Gacaca Jurisdictions In Rwanda , L Danielle Tully May 2003

Human Rights Compliance And The Gacaca Jurisdictions In Rwanda , L Danielle Tully

Boston College International and Comparative Law Review

Following the 1994 genocide in Rwanda, the Government of National Unity embarked upon the ambitious task of trying over 100,000 detainees suspected of participating, at some level, in the genocide. By 1998, having experienced little success with formal trials, the government began developing plans to amend the traditional dispute resolution mechanism, known as gacaca, in an attempt to achiew both justice and reconciliation. Serious criticism has been voiced over the gacaca jurisdictions, claiming, in part, that they fail to meet Rwanda's due process obligations under the International Covenant on Civil and Political Rights (ICCPR). While perhaps not conforming ...


The European Union Internet Copyright Directive As Even More Than It Envisions: Toward A Supra-Eu Harmonization Of Copyright Policy And Theory , Monica E. Antezana May 2003

The European Union Internet Copyright Directive As Even More Than It Envisions: Toward A Supra-Eu Harmonization Of Copyright Policy And Theory , Monica E. Antezana

Boston College International and Comparative Law Review

Evolving global markets in electronic commerce highlight the importance of developing a copyright regime capable of flowing with the changing landscape of international intellectual property law. Traditional boundaries based on time and distance erode as business, education, and the world at large become more digitized. In order to respond to the increasingly widespread digital age, copyright law must become less nationalistic and more global in scale. Both the United States and the European Union have acknowledged the dynamics of intellectual property in today's digital revolution. The United States has responded with, among others, the Digital Millennium Copyright Act and ...


The Myth Of Science As A “Neutral Arbiter” For Triggering Precautions, Vern R. Walker May 2003

The Myth Of Science As A “Neutral Arbiter” For Triggering Precautions, Vern R. Walker

Boston College International and Comparative Law Review

This article demonstrates that science cannot be a "neutral arbiter" for triggering precautionary measures, because both making and warranting findings of risk require non-scientific decisions. Making a risk finding requires decisions about the meaning of "risk of harm," about the meaning of any modifiers for that predicate, and about the degree of confidence asserted for the finding as a whole. Determining that the available scientific evidence warrants a finding of risk requires decisions about acceptable degrees of various types of uncertaintynamely, conceptual uncertainty, measurement uncertainty, sampling uncertainty, modeling uncertainty, and causal uncertainty. This article illustrates these decisions using examples from ...


International Prescription Drug Cost Containment Strategies And Suggestions For Reform In The United States, Martha Ann Holt May 2003

International Prescription Drug Cost Containment Strategies And Suggestions For Reform In The United States, Martha Ann Holt

Boston College International and Comparative Law Review

Rising prescription drug prices have been a point of contention in the United States for decades. Questions such as who should shoulder the cost and what role the government should play in setting drug prices are central to the debate. Other nations face similar concerns and have developed prescription drug plans that incorporate various cost containment strategies. An analysis of prescription drug coverage in other nations may help educate domestic lawmakers on the complexities of these cost containment strategies. The United States could benefit from the lessons learned abroad.


International Arbitration And Project Finance In Developing Countries: Blurring The Public/Private Distinction, Dinesh D. Banani May 2003

International Arbitration And Project Finance In Developing Countries: Blurring The Public/Private Distinction, Dinesh D. Banani

Boston College International and Comparative Law Review

Project Finance has become an increasingly attractive technique for financing infrastructure projects in developing countries over the last twenty years. Furthermore, the use of project financing raises difficult legal issues with respect to the ability of developing countries' governments to control the provision of public services that are intimately connected to these infrastructure projects. Sponsors of project finance transactions have been relatively successful in dealing with these legal issues by negotiating for international arbitration as the primary forum for resolving potential disputes with the host government. However, as the Himpurna and Patuha power projects in Indonesia reveal, a disciplinary bias ...


The Biosafety Protocol And The Wto, Olivette Rivera-Torres May 2003

The Biosafety Protocol And The Wto, Olivette Rivera-Torres

Boston College International and Comparative Law Review

Just a few Yotes shy of entering into force, the Cartagena Protocol on Biosafety is poised to become the next multilateral environmental agreement that has the potential to pit trade interests against enYironmental concerns. Nevertheless, concerns over impending conflict with the WTO trade regime may be misplaced. A detailed analysis of the rights and obligations of the parties to the Protocol and the applicable WTO disciplines reYeals few instances of probable conflict. The United States, one of the largest exporters of LMOs, has not signed or ratified the Protocol. Thus, the determination that no conflict exists is of particular importance ...


Science And “Post-Discriminatory” Wto Law, Robert E. Hudec May 2003

Science And “Post-Discriminatory” Wto Law, Robert E. Hudec

Boston College International and Comparative Law Review

No abstract provided.