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U.S. - China Relations And Darfur, Chin-Hao Huang
U.S. - China Relations And Darfur, Chin-Hao Huang
Fordham International Law Journal
This Essay will begin by first assessing China's economic stakes in Sudan. While economic interests and priorities remain important, it does not sufficiently explain China's shifting position on Darfur. The Essay will then examine the critical factors shaping China's expanding role in Africa, more broadly, as an important context in understanding its evolving approach to Sudan and the Darfur crisis. It will then delve more deeply into Beijing's accommodating shifts on Darfur, illustrating and mapping out the subtleties exhibited in China's diplomatic and economic engagements with the United States on the Darfur question.
Why The Killing In Darfur Is Genocide, Jennifer Trahan
Why The Killing In Darfur Is Genocide, Jennifer Trahan
Fordham International Law Journal
In the “Anfal trial,” the Iraqi High Tribunal (“IHT”) in Baghdad convicted five former Iraqi high officials of genocide, crimes against humanity and war crimes committed in 1988 against the Iraqi Kurds. The evidence presented at trial—which included both voluminous documentary evidence as well as eye-witness testimony—demonstrated the clear existence of a genocidal campaign by the former Iraqi government and military, which eliminated an estimated 182,000 Iraqi Kurds in 1988, including through the use of chemical weapons (the eight-phased “Anfal campaign”). Ali Hassan al-Majid al-Tikriti (“Majid”), known by the moniker “Chemical Ali,” and four others were convicted—three of whom (including …
Photo Essay: The Crisis In Darfur, Olivier Bercault
Photo Essay: The Crisis In Darfur, Olivier Bercault
Fordham International Law Journal
This is a photo essay about the internal conflict in Darfur, one of the world's poorest and most inaccessible regions, on Sudan's western border with Chad.
Proving State Responsibility For Genocide: The Icj In Bosnia V. Serbia And The International Commission Of Inquiry For Darfur, Ademola Abass
Proving State Responsibility For Genocide: The Icj In Bosnia V. Serbia And The International Commission Of Inquiry For Darfur, Ademola Abass
Fordham International Law Journal
This Article discusses the Bosnia v. Serbia case and the Darfur Inquiry and asks whether, in coming to their respective decisions on Serbia and Sudan's responsibilities, the ICJ and the ICID did all that was required of them, especially under the law of State responsibility. This Article first considers whether, despite striking similarities in the circumstances of Darfur and Srebrenica, the ICID's decision that genocide did not occur in Darfur is credible, defensible and could withstand legal analysis under international law. The analysis here juxtaposes the ICID's findings with the ICJ's decision on the Srebrenica genocide.
Fifty Years Of European Integration: A Remarkable Achievement, Desmond Dinan
Fifty Years Of European Integration: A Remarkable Achievement, Desmond Dinan
Fordham International Law Journal
The following sections outline four main phases in the history of European integration. First, this Article examines the decisive contribution that European integration made in the immediate postwar years to solving the German question and achieving Franco-German rapprochement. Second, it looks at the steps taken in the mid-1950s to launch the broader European Economic Community (“EEC”). The next section explains the difficulties encountered in completing the single market, which were eventually overcome in the late 1980s. The mixed record of the EU, launched in 1993 following ratification of the Treaty on European Union ("Maastricht Treaty"), is then examined. The final …
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
Fordham International Law Journal
This Essay will mainly deal with the administrative jurisdiction, but to the extent that it is relevant, will also pay attention to civil suits as well, in a national context as in the Union. The Essay will describe the development of the case-law of the Court of Justice concerning the ex officio application of Community law, starting with the well-known van Schijndel & van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten and Peterbroeck, Van Campenhout & Cie SCS v. Belgian State cases of December 14, 1995 and ending with the van der Weerd & Others v. Minister van Landbouw, Natuur en …
Consumers Of Financial Services And Multi-Level Regulation In The European Union, Caroline Bradley
Consumers Of Financial Services And Multi-Level Regulation In The European Union, Caroline Bradley
Fordham International Law Journal
This Article focuses on the changing role of consumers of financial services in the development of financial services policy in the European Union (“EU”), illustrating tensions between two models of supranational rule-making: the technical and the political. As the European mode of governance has developed by claiming legitimacy largely through functional participation, it is important to focus on the workings of functional participation, and whether it delivers the claimed legitimacy. The first section of the Article describes in outline four different phases of financial services related policy-making in Europe: the period before the Single European Act, the period leading up …
Economic Governance In The European Union: Should Fiscal Stability Outweigh Economic Growth In The Stability And Growth Pact?, Roger J. Goebel
Economic Governance In The European Union: Should Fiscal Stability Outweigh Economic Growth In The Stability And Growth Pact?, Roger J. Goebel
Fordham International Law Journal
This Article will initially discuss the genesis of the Stability and Growth Pact (“SGP”) in 1996-1997. The second section will analyze the legal structure of the legislation adopted in 1997 to enforce the stability aspect of the SGP, i.e., the Multilateral Surveillance Regulation (“MSR”) and the Initial Excessive Deficit Regulation (“EDR”). Next, the Article will briefly review the operational disputes over the application of the EDR to France and Germany in 2002-2003, culminating in the impasse at the November 25, 2003 Ecofin Council meeting. The following section will first summarize and then analyze the Court of Justice's judgment in 2004 …
Improving Competition In European Energy Markets Through Effective Unbundling, Neelie Kroes
Improving Competition In European Energy Markets Through Effective Unbundling, Neelie Kroes
Fordham International Law Journal
This Article is structured as follows: first, it summarizes the European approach to developing integrated and well-functioning electricity and gas markets, giving an overview of the opening of energy markets through Community legislation and the development of the current unbundling regime. It puts the European approach in perspective, outlining experiences with unbundling in the United States. Secondly, the malfunctioning of European energy markets is analyzed, presenting the findings of the Sector Inquiry. It then explains how the problems identified can be addressed using instruments at the Commission's disposal, namely competition law enforcement and legislation. In this context, the main elements …
The Eu Challenge To The Sec, Roberta S. Karmel
The Eu Challenge To The Sec, Roberta S. Karmel
Fordham International Law Journal
This Article argues that the European Union (“EU”) has been instrumental in moving the United States (“U.S.”) Securities and Exchange Commission (“SEC”) from a policy of national treatment of foreign (non-U.S.) issuers to a policy of mutual recognition of financial disclosure accounting standards based on convergence between U.S. accounting standards and international accounting standards. Further, future initiatives based on a national treatment model are under consideration by the SEC. At the same time, progress on the road to mutual recognition has been made possible by SEC influences on the EU, leading to securities regulation reform in the EU, and greater …
Fifty Years Of European Union Law: A Panel Of Present And Former Judges, Moderated By Roger Goebel, Francis Jacobs, Richard Lauwaars, John L. Murray, Lord Slynn Of Hadley
Fifty Years Of European Union Law: A Panel Of Present And Former Judges, Moderated By Roger Goebel, Francis Jacobs, Richard Lauwaars, John L. Murray, Lord Slynn Of Hadley
Fordham International Law Journal
We are very pleased, very honored, to end this conference, this academic workshop, with a panel of present and former judges, who have kindly agreed to talk informally and frankly about some interesting issues that concern the European Court of Justice. We have two judges who are current judges: John Murray, the Chief Justice of the Supreme Court of Ireland; and we have Richard Lauwaars, who is a member of the Dutch Council of State, the supreme administrative court. And then we have Francis Jacobs, who has recently retired as Advocate General at the Court of Justice after three terms …
Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee
Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee
Fordham International Law Journal
In Part I, the author will clarify the facts regarding the evolution of the incidents and the adoption of the resultant resolutions. In Part II, the author will analyze the legal questions regarding the two resolutions. Part II will first examine the legality of the missile launch on the basis of Security Council Resolution 1540, customary international law and the Chicago Convention on International Civil Aviation. Second, Part II will examine Resolution 1695's terminology by comparing it to previous resolutions. Third, it will discuss the sanctions based on national legal authorities and legislations. Fourth, Part II will examine international law …
Filling The Void: International Legal Structures And Political Risk In Investment, Molly Zohn
Filling The Void: International Legal Structures And Political Risk In Investment, Molly Zohn
Fordham International Law Journal
This Article is broken into five sections. Part I defines political risk. Part II provides a brief review of the academic literature showing the work that has been done in this area of law. Part III argues that there have indeed been oscillations in the degree of political investment risk in the world and explains that investment risks rise when changes in the world power structure cause temporary power vacuums. Once new institutions emerge for the protection of investments, the level of risk declines. Part IV discusses the current trend, in which the world is witnessing the emergence of a …
Constitutional Exclusion And Gender In Commonwealth Africa, Johanna E. Bond
Constitutional Exclusion And Gender In Commonwealth Africa, Johanna E. Bond
Fordham International Law Journal
Part I of this article briefly describes customary law and explores the effect of colonialism on legal pluralism and the region's early post-colonial constitutions. Part II describes the structure and content of constitutional clauses that exclude personal law and customary law from constitutional non-discrimination protection. Part III briefly examines international and regional human rights law and offers a pragmatic conclusion that countries must eliminate exclusionary clauses in order to conform to human rights commitments. Part IV provides a theoretical justification for eliminating exclusionary clauses from these constitutions. This section builds upon feminist theory and dialogic constitutionalism to argue that countries …
We Will Still Live: Confronting Stigma And Discrimination Against Women Living With Hiv/Aids In Malawi, Chi Mgbako, Tracy E. Higgins, Jeanmarie Fenrich
We Will Still Live: Confronting Stigma And Discrimination Against Women Living With Hiv/Aids In Malawi, Chi Mgbako, Tracy E. Higgins, Jeanmarie Fenrich
Fordham International Law Journal
This report presents the findings of this research effort. Part I sets out Malawi's obligations under international and domestic law regarding the right of women living with HIV/AIDS to be free from discrimination and also explores non-binding international documents that provide guidance to governments in confronting discrimination against PLWHA. Part I then explores the ways in which lack of sexual autonomy, economic dependency, physical and sexual abuse, harmful traditional practices, commercial sex work, sexual exploitation of girls and young women, and conceptions of male sexuality increase women's vulnerability to HIV/AIDS in Malawi. Part II documents widespread community-level stigma against women …
Obiora Chinedu Okafor, Legitimizing Human Right Ngos: Lessons From Nigeria, Joel M. Ngugi
Obiora Chinedu Okafor, Legitimizing Human Right Ngos: Lessons From Nigeria, Joel M. Ngugi
Fordham International Law Journal
Professor Obiora Chinedu Okafor of Osgoode Hall School of Law, Toronto, Canada, has written a well-researched and valuable book about Human Rights Non-Governmental Organizations ("NGOs") in Nigeria. ... " Similarly, in many countries, NGOs, in their capacity as civic society, have been given official roles in some key governance institutions such as in Nigerian National Human Rights Commissions, media watchdogs, Governmental Commissions, and so forth. In chapter five of the book, Professor Okafor candidly describes the funding patterns of human rights NGOs in Nigeria. As Professor Okafor tells the story, the trail of the "popular legitimization crisis" of local human …
Women, Children, And Victims Of Massive Crimes: Legal Developments In Africa, Justice Richard J. Goldstone
Women, Children, And Victims Of Massive Crimes: Legal Developments In Africa, Justice Richard J. Goldstone
Fordham International Law Journal
This issue of the Fordham International Law Journal is devoted to African themes. The articles concentrate on the most vulnerable in Africa, namely children, women and the victims of massive crimes.
Child Soldiers, Slavery And The Trafficking Of Children, Susan Tiefenbrun
Child Soldiers, Slavery And The Trafficking Of Children, Susan Tiefenbrun
Fordham International Law Journal
This article will examine the complex relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of the use of child-soldiers. Part II will examine the international and domestic laws and instruments that protect against the use of children as soldiers. Part III will examine some literary representations of the crime of child soldiering in order to raise the readers' awareness of the depths of this atrocity. Part IV will conclude by offering practical suggestions and economic solutions to make these legal instruments more effective. Children are humanity's most valuable …
Seeing The Forest For The Treaties: The Evolving Debates On Forest And Forestry Activities Under The Clean Development Mechanism Ten Years After The Kyoto Protocol, Romulo Silveira Da Rocha Sampaio
Seeing The Forest For The Treaties: The Evolving Debates On Forest And Forestry Activities Under The Clean Development Mechanism Ten Years After The Kyoto Protocol, Romulo Silveira Da Rocha Sampaio
Fordham International Law Journal
This Article focuses on the evolving debates concerning jointly implemented forest and forestry activities. More specifically, this Article focuses on forest and forestry activities under the Clean Development Mechanism ("CDM"). The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change ("Kyoto Protocol") effectively created the project-based flexibility mechanisms that would allow for joint implementation of policies and measures under the climate change legal regime. Article 6 envisioned joint implementation (between developed countries and economies in transition), and Article 12 envisioned the CDM (between developed and developing countries). The overall objective of this Article is to identify the …
Thieves Of Baghdad: Combatting Global Traffic In Stolen Iraqi Antiquities, Matthew Bogdanos
Thieves Of Baghdad: Combatting Global Traffic In Stolen Iraqi Antiquities, Matthew Bogdanos
Fordham International Law Journal
The argument for protecting artifacts in Iraq takes on added strength when the United States recognizes that the country is where it is today not just because of its failure to provide sufficient security to overcome the long-festering tribal and religious animosities, but also because of its continuing failure to appreciate the importance Iraqis place on the preservation of their history. This failure to protect a rich heritage going back to the dawn of civilization has convinced many in Iraq and the Middle East that the U.S. does not care about any culture other than its own. And their belief …
The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren Fielder Redman
The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren Fielder Redman
Fordham International Law Journal
The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court (ICC). The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked increase in international tribunals deciding disputes affecting individual interests. Despite these trends, Americans have been wary of the International Criminal Court. Federal courts principles borrowed from the legal process school can and should be implemented to govern relations between ICC and domestic …
The Failure Of Corporate Governance In State Owned Enterprises And The Need For Restructured Governance In Fully And Partially Privatized Enterprises: The Case Of Kenya, Kiarie Mwaura
Fordham International Law Journal
This Article argues that the initiatives adopted in order to make parastatals more efficient are inadequate and will not realize the intended objectives unless the chief executives of parastatals are hired on a competitive basis, given more autonomy and the government is committed not only to designing performance contracts that set realistic standards, but also enforcing them strictly. It also contends that there is a need to streamline the multiple regulations that govern parastatals and reform the corporate regulatory framework of the private sector in order to raise standards of corporate governance and, as a result, ensure that the privatized …
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Fordham International Law Journal
Three major sections comprise this Article. Part I offers a historical overview of recent Guatemalan tax reform efforts and goals for civil society, based on the 1996 Peace Accords. Part II maps and analyzes the current provisions regarding philanthropy and regulation of the NGO sector in Guatemala, including discussion of the limitations imposed by constitutional doctrine. Part III explores recommendations for Guatemalan reform in the areas of philanthropy and civil society, based in part on the negotiations of the 2006-2007 Pacto Fiscal Commission as well as recent recommendations for Latin America in general. While there has been a burgeoning conversation …
The Passionate Expression Of Hate: Constitutional Protections, Emotional Harm And Comparative Law, Amnon Reichman
The Passionate Expression Of Hate: Constitutional Protections, Emotional Harm And Comparative Law, Amnon Reichman
Fordham International Law Journal
This Article will examine two possible models that seek to resolve the tension in principle: The U.S. model, under which speech enjoys preeminence, and the Israeli model, that protects human dignity as the principal value. Section I will outline and analyze a recent Israeli case that led to the first criminal conviction for the violation of an Israeli statute prohibiting the infliction of harm on religious sentiments. This case will provide a reference point for a three-part comparative analysis of the U.S. and Israeli models. Section II will address the normative infrastructure that separates the two models, Sections III and …
Is There A Better Way? Alternative Methods Of Treaty-Based, Investor-State Dispute Resolution, Jeswald W. Salacuse
Is There A Better Way? Alternative Methods Of Treaty-Based, Investor-State Dispute Resolution, Jeswald W. Salacuse
Fordham International Law Journal
Two factors--the increase in international investment and the increase in international investment agreements--have together led to a growth in the number and severity of treaty-based disputes between host states and individual investors. An increasing number of such disputes are being settled through international arbitration. However, the large amounts of some resulting arbitration awards, the cost to host countries of the arbitral process, and the constraints imposed thereby on the ability of governments to regulate enterprises in their territories have raised questions as to whether means other than arbitration and litigation can be found to resolve treaty-based, investor-State disputes. In short, …
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Fordham International Law Journal
Part I discusses the treatment of domestic violence as a human rights issue under international law, focusing on the shift in the conceptualization of violence against women from a private matter to a human rights issue. By framing gender-based violence as a means to perpetuate the social, economic, and political inequality of women, the international community has imposed positive obligations upon the state to not only punish but to prevent gender-based violence and to eliminate its root causes. In Parts II and III, I contrast the approaches of the highest courts of the United States and South Africa. Part II …
Practice And Predicament: The Nationality Of The International Arbitrator (With Survey Results), Ilhyung Lee
Practice And Predicament: The Nationality Of The International Arbitrator (With Survey Results), Ilhyung Lee
Fordham International Law Journal
This Essay builds on the available literature to date and offers a more probing examination of the international arbitrator and nationality. The opening section reiterates how arbitrator nationality relates to the traditional requirements of arbitrator impartiality, independence, and neutrality (with which the "arbitrator" is most synonymous); how arbitral rules seek diversity of nationality between the tribunal and the parties; the underlying reasons for national neutrality being the accepted practice in international arbitration; and criticisms of the practice. With this background in place, the Essay poses challenging questions relating to the arbitrator's nationality, with the aid of hypothetical permutations of an …
New Ways Of Thinking About Cultural Property: A Critical Appraisal Of The Antiquities Trade Debates, Alexander A. Bauer
New Ways Of Thinking About Cultural Property: A Critical Appraisal Of The Antiquities Trade Debates, Alexander A. Bauer
Fordham International Law Journal
In debates over the trade in archaeological objects or antiquities, on one end are those who believe that everyone has a shared interest in and claim to the common heritage of humanity, and thus support a vibrant and legal trade in cultural materials. On the other end are those who believe that cultural objects have special significance for specific groups and thus support the efforts of such groups to regulate their trade and seek their repatriation. The aim of this Essay is to critically examine the components of each group's arguments--their goals, assumptions, and inconsistencies--and try, where possible, to identify …
Repatriation Of The Kohinoor Diamond: Expanding The Legal Paradigm For Cultural Heritage, Saby Ghoshray
Repatriation Of The Kohinoor Diamond: Expanding The Legal Paradigm For Cultural Heritage, Saby Ghoshray
Fordham International Law Journal
This Article is segmented as follows: Part I provides an historical account of the temporal trajectory through which the Kohinoor diamond has evolved over the centuries. The exploration of the legality of repatriation begins in Part II, where it explains the structural difficulties presented by arguments that seek to justify the retention of cultural artifacts. This leads to the discussion of the existing international law framework in Part III. The background presented in these sections provides the foundation utilized to advance a theoretical framework that expands the definition of cultural artifacts to define the legal paradigm for the repatriation of …
Introduction, Justice Richard J. Goldstone
Introduction, Justice Richard J. Goldstone
Fordham International Law Journal
Given the violence in Darfur and the ensuing international reaction, the Fordham International Law Journal decided to publish a special issue on Darfur. It is timely in light of the continuing violence in the Darfur region. This article serves as the Introduction to the special issue.