Comparative and Foreign Law Commons^™

The Slippery Concept Of "Object And Purpose" In International Criminal Law, Patrick J. Keenan

American University International Law Review

In little more than twenty-five years, the field of international criminal law has grown from a small slice of public international law into a functioning system of international justice, complete with multiple juridical bodies and substantial scholarly attention. Building on the legacy of the Nuremberg Tribunals and drawing from international humanitarian law, human rights law, and domestic criminal law principles, international criminal law has become its own discipline. Creating any new field of law is a complicated endeavor; this is especially true when the field affects and is affected by so many politically sensitive issues. Throughout this doctrinal experiment, one …

Sanctions As Virtue-Signaling: Transitioning From Symbolism To Reparation For Rohingya Genocide Victim, Kelsey Peden

American University International Law Review

Kyi sat on the banks of the Inya Lake, saying goodbye to the place they said was no longer her home. The government of Myanmar had given her an option: leave or be arrested. She felt lucky to leave; most activists she knew did not get a warning first. A few kilometers away, her parents’ graves sat cleaned, adorned with fresh flowers. She hoped her sister would keep up the task in her absence, but she hadn’t been able to get ahold of her in quite some time. The feeling of the country was getting more concerned—"frantic" she explained, laughing, …

The Application Of Law As A Key To Understanding Judicial Independence, Tahirih V. Lee

FIU Law Review

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong …

The Dialogic Function Of I.C.J. Provisional Measures Decisions In The U.N. Political Organs: Assessing The Evidence, Michael Ramsden, Jiang Zixin

American University International Law Review

The aim of this article is to consider the degree to which provisional measures ordered by the International Court of Justice (I.C.J.) have influenced United Nations (U.N.) diplomacy and the exercise of functions by its political organs in the areas of international peace, security, and human rights. This article evaluates this influence by examining decisions in which the I.C.J. indicated provisional measures, denoting the remedy available to the Court, on an interim basis, to restrain or instruct the parties to take certain measures to preserve either or both parties’ rights pending the outcome of the case. In doing so, this …

Preserving The Sea In A Radioactive World: How Japan's Plan To Release Treated Nuclear Wastewater Into Pacific Ocean Violates Unclos, Victoria Cruz-De Jesus

American University International Law Review

On December 10, 1982, the 1973–1982 United Nations Convention on the Law of the Sea (UNCLOS III) concluded. Japan became a signatory to the Convention on February 7, 1983 and ratified the Convention on June 20, 1996. Subsequently, Japan became a party to the treaty and committed itself to abide by the United Nations Convention on the Law of the Sea (UNCLOS).

From The Editor-In-Chief, Monica Ratajczak

Hastings International and Comparative Law Review

No abstract provided.

Masthead

Hastings International and Comparative Law Review

No abstract provided.

Court Polarization: A Comparative Perspective, Iddo Porat

Hastings International and Comparative Law Review

Polarization is on the rise around the globe. Political views are driven to the poles, and moderate views are weakened. Many studies have been carried out on the increase in social and political polarization, but far fewer on the effects of polarization on constitutional and supreme courts, and none on a comparative or global scale. This Article attempts to fill this gap. It aims, for the first time, to describe and typologize the effects of political polarization on constitutional and supreme courts in different parts of the world.

The Article identifies three models of such effects: mirror polarization (the U.S.) …

The Certainty-Severity Tradeoff In Antitrust Law And Administration: Where The United States And India Differ, Akhil Sud

Hastings International and Comparative Law Review

In this paper, I use the certainty-severity tradeoff as my analytical lens—a novel move in antitrust—to explain the difference between U.S. and Indian antitrust law. I argue that, in antitrust, India prefers certainty of enforcement while the U.S. prefers severity of enforcement. This difference is not driven by doctrine or economic policy; rather, I locate this difference in six key institutional factors. And using economic theory, I argue that a difference in social attitudes to risk explains and justifies this institutionally-manifested difference in law.

Is A Duty To Pay Tax Inherent In Affirmations Of Human Rights?, Jonathan M. Barrett

Washington and Lee Journal of Civil Rights and Social Justice

The United Nations’ Universal Declaration of Human Rights 1948 (the Universal Declaration), as the preeminent statement of human rights, informs numerous cognate covenants and declarations of rights, and charters of rights included in national constitutions. Unlike the rights declarations of the Enlightenment, the Universal Declaration affirms broad welfare rights, in addition to civil and political rights. No right or set of rights is superior to another; they are indivisible, interdependent and interrelated.

Declarations of rights may also include duties. The Organization of American States’ American Declaration of the Rights and Duties of Man 1948 (“the American Declaration”), for example, includes …

Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong

Research Collection Yong Pung How School Of Law

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This paper argues that under the common law, knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort …

Just Transition Litigation In Latin America: An Initial Categorization Of Climate Litigation Cases Amid The Energy Transition, Maria Antonia Tigre, Lorena Zenteno, Marlies Hesselman, Natalia Urzola, Pedro Cisterna-Gaete, Riccardo Luporini

Sabin Center for Climate Change Law

Just transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Analysis Of Discriminatory Measures From European Union Renewable Energy Directive Ii To Indonesia As A Palm Oil Producer Country, Enrico Denis Sihotang

Indonesia Law Review

On 21 December 2018, the European Union (EU) issued a regulation titled Renewable Energy Directive II (RED II), where the RED II policy introduced the indirect land use change (ILUC) criteria for palm oil. RED II states that palm oil is classified as a commodity with a “ high ILUC risk” type, and as such, the EU will gradually reduce palm oil consumption and no longer use palm oil by 2030. Indonesia brought this issue to WTO in 2020. Indonesia, through its consultation, argued that the RED II is inconsistent with the few provisions of the General Agreement on Tariffs …

Liability Rule Practices Amidst The Property Rule Of Indonesian Capital Market, Adiwarman Adiwarman

Indonesia Law Review

Shareholder protection is the most important legal issue in capital market law. Conflict of interest is one of the corporate actions in the capital market. The property rule requires independent shareholders’ approval for conflicts of interest transactions. The property rule paradigm empowers independent shareholders in the company’s decision-making process. In practice, listed companies violate the property rule and are subject to sanctions, but the rights of shareholders will be reduced due to fines imposed by the capital market authorities. A normative method is used to answer the problem of how does Indonesia enforce the conflict of interest rule in order …

An Analytical Study On The Intervention Of The Legislature To The Constitutional Court In Indonesia Compared To Developed Countries, Mochammad Arief Agus, Andi Muhammad Irvan Alamsyah

Indonesia Law Review

Practical improvements in the national institution context brought numerous changes regarding interactions between The Constitutional Court & The legislature including contemporary polemics. The check and balances framework is important to be noticed related to the Judge’s Independence. Aswanto’s recall as one of the Judges of the Indonesian Constitutional Court encourages us to elaborate more about the essence of independence. At the same time, checks and balances should stand out. What is the legal standing of any actions taken by the parliament to the constitutional court? How do developed countries practice the relationship between the legislature and the judiciary? The answer …

Front Matter And Table Of Contents

University of Miami International and Comparative Law Review

No abstract provided.

Death Sentences In The Great Qing, 1744-1840: Critical Note On Civilization In Comparison With England And Wales, Moulin Xiong, Ren Liu

University of Miami International and Comparative Law Review

Over the last centuries, the view on the death penalty in Qing China has been distorted, presenting a picture of abusive brutality and excessive cruelty, and thus was used as the critical pretext to establish immune extraterritorial jurisdictions. Nevertheless, the existing comments are more literary embellishments without empirical evidence, and few comparative and historical perspectives have been utilized to clarify the truth. In this study, we mined annual death sentence numerical data for the period 1744 to 1840 from official archives and literatures, deciphering the capital crimes in detail and ascertaining the longitudinal trend with population statistics. To reassess the …

Masthead

University of Miami International and Comparative Law Review

No abstract provided.

The Impact Of Covid-19 On Domestic Violence And Digital Abuse: Addressing The Problem Through A National Action Plan, Kayla Bokzam

University of Miami International and Comparative Law Review

This Article discusses the impact of COVID-19 on domestic violence and digital abuse around the world, with a focus on the United States. Violence against women has increased since the start of the pandemic largely due to lockdown restrictions and other measures taken by governments to slow the spread of the virus. Further, with an increase in the use of technology throughout our daily lives, digital abuse has become more prevalent and particularly impacts women and girls. This paper analyzes the national action plans on gender-based violence in Australia and South Africa and explores how the United States can create …