International Law Commons^™

Toolkit Or Tinderbox? When Legal Systems Interface Conflict, Christie S. Warren

Faculty Publications

No abstract provided.

Of Human Dignities, Mark L. Movsesian

Faculty Publications

(Excerpt)

Dignitatis Humanae: “Of Human Dignity.” The Second Vatican Council’s 1965 declaration on religious liberty must have seemed a triumph—an exclamation mark signaling the success of a decades-long project, begun during the Second World War, to restore human rights to the center of Catholic social teaching. In wartime addresses, Pope Pius XII had called for recognition of human rights, based in human dignity, as the foundation for a stable peace. In 1963, Pope John XXIII had made universal human rights, including religious liberty, part of the Magisterium. The project had had effects outside the Church as well. In 1948, …

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

The Latin American Tradition Of Legal Failure, Jorge L. Esquirol

Faculty Publications

No abstract provided.

Insular Minorities: International Law’S Challenge To Japan’S Ethnic Homogeneity, Timothy Webster

Faculty Publications

The Japanese state has long promoted a view of itself, and the country, as ethnically homogeneous. Borrowing on critical race theory as developed in the United States, this paper first traces the numerous laws and policies that Japan has implemented to privilege ethnically Japanese people, and prejudice ethnic others. Next, the paper examines the role of international human rights law in challenging various edifices of the ethno-state, including amendments to legislation, and individual lawsuits. I conclude that international law has played a meaningful role in diversifying the protective ambit of Japanese law, but cannot provide all of the solutions that …

From Kosovo To Catalonia: Separatism And Integration In Europe, Christopher J. Borgen

Faculty Publications

In July 2010 the International Court of Justice rendered its Advisory Opinion on the legality of Kosovo's declaration of independence and the Constitutional Court of Spain rendered an opinion concerning the autonomy of Catalonia. Two very different cases, from very different places, decided by very different courts. Nonetheless, they each provide insights on the issue of separatism in the midst of European integration. Does the Kosovo opinion open the door for other separatist groups? Does the process of European integration increase or undercut separatism? In addressing these questions, this article proceeds in three main parts. Part A briefly recaps the …

Elusive Equality: The Armenian Genocide And The Failure Of Ottoman Legal Reform, Mark L. Movsesian

Faculty Publications

I would like to thank the organizers for inviting me to deliver some remarks this morning. By way of background, I am not a historian or genocide scholar, but a law professor with an interest in comparative law and religion. Comparative law and religion is a relatively new field. It explores how different legal regimes reflect, and influence, the relationships that religious communities have with the state and with each other. My recent work compares Islamic and Christian conceptions of law, a subject that has engaged Muslims and Christians since their first encounters in the seventh century.

When I approach …

Cuban Claims: Embargoed Identities And The Cuban-American Oedipal Conflict (El Grito De La Yuma), Jose M. Gabilondo

Faculty Publications

No abstract provided.

International Commercial Arbitration And International Courts, Mark L. Movsesian

Faculty Publications

The editors of this symposium have asked us to address an interesting question. Why hasn't international commercial arbitration’s (ICA's) success been repeated in the context of international courts? In the last few decades, states have created scores of permanent tribunals with jurisdiction to resolve disputes about international law. By and large, though, states have not been as receptive to the rulings of these tribunals. What accounts for this comparative lack of hospitality? Why do states treat ICA and international adjudication so differently?

In this essay, I offer an explanation. States treat ICA and international adjudication differently because they are categorically …

Ashes To Ashes: Comparative Law Regarding Survivors’ Disputes Concerning Cremation And Cremated Remains, Eloisa Rodriguez-Dod

Faculty Publications

One should plan for unassuming post-mortem issues, as most state laws do not provide a complete framework when there is no testamentary instruction by the deceased. Judicial determination is often needed, however reported opinions are scarce. Final disposition issues also arise in foreign law. Spain has no civil code regarding disposition of a deceased but delegates its funerary laws to local governments and autonomous communities, while the French have established an order of priority for funerary decisions and provide for a judicial determination and stay of the funerary process in case of dispute.

The author gives a brief history of …

Sending The Right Signals: Using Rent-Seeking Theory To Analyze The Cuban Central Bank, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Continuing Fictions Of Latin American Law, Jorge L. Esquirol

Faculty Publications

No abstract provided.

Kosovo's War Victims: Civil Compensation Or Criminal Justice For Indentity Elimination?, Irene Scharf

Faculty Publications

This Article is presented in three Parts. The first Part examines the likelihood that the displaced war victims could receive some type of civil compensation for their losses through the local courts in Yugoslavia. Part II scrutinizes the basic international human rights doctrines and systems of enforcement to determine whether they may offer remedies for the victims of identity elimination. Part III explores the likelihood that, through the Yugoslav Tribunal, those responsible for identity elimination may be held criminally responsible for their actions in Kosovo.

Tragedy, Irony, And Protectionism After Bcci: A Three-Act Play Starring Maharajah Bank, Raj Bhala

Faculty Publications

Post-BCCI legal developments regarding the regulation of foreign banks raise serious concerns of protectionism. The Foreign Bank Supervision Enhancement Act of 1991 and revisions to Federal Reserve Regulation K impose significant new legal burdens on foreign banks seeking to establish a physical presence in the U.S. The new legal regime reflects a tragic sacrifice of the principle of free trade in banking services in order to placate a fear of "bad" foreign banks. Ironically, the sacrifice of this principle by Congress and the Federal Reserve is incongruous with efforts of the United States Trade Representative (USTR). The USTR has negotiated …