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Full-Text Articles in Law
American Judges And International Law, A. M. Weisburd
American Judges And International Law, A. M. Weisburd
Vanderbilt Journal of Transnational Law
This article addresses an issue with which federal courts have been forced to deal with increasing frequency: How ought a judge go about determining the content of customary international law? The article seeks to demonstrate, using the example of the treatment of the concept of "jus cogens" by the courts of appeals, that federal courts have come to rely on doubtful sources in addressing questions of international law. More specifically, it sets out to show that courts frequently do not rely on the actual practice of governments to determine the content of customary international law, which would seem to be …
How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai
How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai
Vanderbilt Journal of Transnational Law
In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.
This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. …
The Prosecution Of Rape Under International Law: Justice That Is Long Overdue, James R. Mchenry, Iii
The Prosecution Of Rape Under International Law: Justice That Is Long Overdue, James R. Mchenry, Iii
Vanderbilt Journal of Transnational Law
This Note argues that despite theoretical criticisms, the prosecution of rape and sexual enslavement as crimes against humanity, by the International Criminal Tribunal for the former Yugoslavia (ICTY) fits within a larger, emerging picture of international legal jurisprudence. First, the ICTY built upon both its own prior decisions and the decisions of the International Criminal Tribunal for Rwanda (ICTR), especially Prosecutor v. Akayesu, in order to close gaps in the international legal conceptualizations of rape and enslavement, torture, war crimes, genocide and crimes against humanity. Second, building upon the example set by the ICTR, the ICTY broadened international protections of …
International Law And The Problem Of Evil, A. Mark Weisburd
International Law And The Problem Of Evil, A. Mark Weisburd
Vanderbilt Journal of Transnational Law
In response to recent violations of human rights, some within the international legal community have called not only for intervention but for the establishment of an international court with jurisdiction to hear claims against persons alleged to have committed those violations. This Article questions the premise that it is necessary, or even desirable, for the international legal community to mandate intervention in such circumstances.
First, the Article examines the authority for international intervention to forestall massive human rights violations. Using the recent examples including Kosovo and East Timor, the Author compares scholarly responses with respect to both the human rights …
Women And Globalization: The Failure And Postmodern Possibilities Of International Law, Barbara Stark
Women And Globalization: The Failure And Postmodern Possibilities Of International Law, Barbara Stark
Vanderbilt Journal of Transnational Law
This Article examines the role of international law, particularly human rights law, as it relates to the process of globalization and its effects on women. Initially, the Article sets the stage by describing the course of globalization and the dramatic impact it has had on the world economy. The Author next examines the multiple and contradictory consequences of globalization for women.
The Article approaches this analysis from two perspectives. First, from a 'classic perspective," the Author contends that international law is the only legal system with the potential to regulate the principal agents of globalization--multinational corporations, banks and investment firms, …
The Reach Of Icc Jurisdiction Over Non-Signatory Nationals, Jordan J. Paust
The Reach Of Icc Jurisdiction Over Non-Signatory Nationals, Jordan J. Paust
Vanderbilt Journal of Transnational Law
A new International Criminal Court (ICC) was created on July 17, 1998 under the Rome Statute adopted by the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court. Under the Statute, the ICC will have jurisdiction over crimes of genocide, certain crimes against humanity, and certain war crimes, leaving the crime of aggression for further definition.
Nonetheless, there are certain preconditions to the exercise of such jurisdictional competence, as noted especially in Articles 12-14 of the Statute. In general, the Court can exercise jurisdiction if a "situation" or case (1) is referred to the Prosecutor …
Anticipatory Humanitarian Intervention In Kosovo, Jonathan I. Charney
Anticipatory Humanitarian Intervention In Kosovo, Jonathan I. Charney
Vanderbilt Journal of Transnational Law
The intervention by the North Atlantic Treaty Organization (NATO) in Kosovo during the spring of 1999 aroused controversy at the time and still provokes questions about the legality of the action, its precedential effect, and procedures for developing new international law. The participants faced a legal and moral dilemma between international law prohibitions on the use of force and the goal of preventing or stopping widespread grave violations of international human rights. This commentary seeks to chart a course for the future in light of the current legal and moral environment.
Many individuals on all sides of the Kosovo crisis …
The Inevitability Of Nimble Fingers? Law, Development, And Child Labor, Katherine Cox
The Inevitability Of Nimble Fingers? Law, Development, And Child Labor, Katherine Cox
Vanderbilt Journal of Transnational Law
This Article examines development issues that are raised in a legal analysis of international human rights law relating to child labor. In so doing it highlights some of the weaknesses of the present legal approach to the problem. In order to demonstrate better the weaknesses of the system, India is used as an example of a developing country where some of the development issues raised in the legal analysis arise. The second Part of this Article defines the concept of child labor. It undertakes a comprehensive analysis of international legal instruments that deal with the topic of child labor and …
Secrets And Lies? Swiss Banks And International Human Rights, Anita Ramasastry
Secrets And Lies? Swiss Banks And International Human Rights, Anita Ramasastry
Vanderbilt Journal of Transnational Law
This Article explores the relationship of Swiss banks and their tradition of bank secrecy to the activities of a particular group of depositors: war criminals and other human rights violators. The Article focuses on litigation brought in U.S. courts by plaintiffs seeking access to Swiss bank deposits made by the Nazis and Ferdinand Marcos. The Article examines the possibility of holding banks accountable under international law for assisting a customer who has committed a serious breach of international law. Part I introduces the role of bank secrecy in the current litigation. Part II describes the Swiss tradition of bank secrecy. …
The Human Rights To Food, Medicine And Medical Supplies, And Freedom From Arbitrary And Inhumane Detention And Controls In Sri Lanka, Jordan J. Paust
The Human Rights To Food, Medicine And Medical Supplies, And Freedom From Arbitrary And Inhumane Detention And Controls In Sri Lanka, Jordan J. Paust
Vanderbilt Journal of Transnational Law
This Essay identifies the denial of adequate and available food and the denials of adequate medicine and medical supplies in Sri Lanka as serious human rights violations. Additionally, the Author cites customary international law and international agreements to support his conclusion that the government's denial of these necessities in Sri Lanka constitute war crimes. The Author discusses the human rights violations with respect to: (1) the right to adequate food; (2) the right to adequate medicine and medical supplies; and (3) the right to freedom from arbitrary and inhumane detention and controls. The Author concludes by urging that the U.S. …
Hong Kong's Reintegration Into The People's Republic Of China, Anne M. Seibel --Executive Articles Editor, Stacy A. Feld --Editor In Chief
Hong Kong's Reintegration Into The People's Republic Of China, Anne M. Seibel --Executive Articles Editor, Stacy A. Feld --Editor In Chief
Vanderbilt Journal of Transnational Law
Every other year, the Vanderbilt Journal of Transnational Law presents a symposium on a current topic in international law and practice. This year's symposium, "Hong Kong's Reintegration into the People's Republic of China: Constitutional Issues, Policy Approaches & Human Rights Concerns and Economic & Legal Implications, was held at Vanderbilt University School of Law on March 28-29, 1997. Our goal was to provide a forum in which leading authorities on Hong Kong and China could come together and discuss constitutional, human rights, legal, and economic concerns surrounding the reintegration of Hong Kong into China.
The results of this Symposium have …
Will Hong Kong Be Successfully Integrated Into China? A Human Rights Perspective, Yu Ping
Will Hong Kong Be Successfully Integrated Into China? A Human Rights Perspective, Yu Ping
Vanderbilt Journal of Transnational Law
This Article explores the human rights forecast following Hong Kong's reintegration into China. The Article first reviews the British human rights record in Hong Kong, and explains why China was angered by last-ditch British political reform. It then explores the legal framework of Hong Kong, including the Sino-British Joint Declaration and the Basic Law of Hong Kong, and concludes that neither offers significant protection for human rights in Hong Kong. In particular, Chinese state security and state secrets laws are likely to be used to suppress political dissidents, journalists, international organizations, and other "foreign elements" in Hong Kong. The Article …
South Africa's 1996 Choice On Termination Of Pregnancy Act, Audrey E. Haroz
South Africa's 1996 Choice On Termination Of Pregnancy Act, Audrey E. Haroz
Vanderbilt Journal of Transnational Law
South Africa's Bill of Rights is one of the most liberal and elaborate in the world. Consequently, South Africa is at the forefront of defining human rights for individuals, especially women. Concurrently, international law is slowly undergoing a reconceptualization of human rights documents and guarantees to define a more definitive, protective, and pro-active body of rights for women.
By upholding the constitutionality of the 1996 Abortion Act, South Africa can define its own Bill of Rights in liberal terms and ensure that the South African Constitution continues to receive a broad interpretation. A welcome result would be the improvement of …
... And Justice For All: Normative Descriptive Frameworks For The Implementation Of Tribunals To Try Human Rights Violators, Gautam Rana
Vanderbilt Journal of Transnational Law
With the formation of the Bosnian and Rwandan War Crimes Tribunals, the international community has created a mechanism for the enforcement of human rights law for the first time since the Nuremburg and Tokyo War Trials. The efficacy of these tribunals, however, is in doubt. This Note proposes that only a few human rights are truly universal in nature and can be guaranteed by the international community. Furthermore, the political realities of the international system precludes the use of international tribunals against the more powerful nations of the international community. The Note concludes that by focusing on the human rights …
Preface, Laurelyn E. Douglas
Preface, Laurelyn E. Douglas
Vanderbilt Journal of Transnational Law
The symposium, HONG KONG'S REINTEGRATION INTO THE PEOPLE'S REPUBLIC OF CHINA: CONSTITUTIONAL ISSUES, POLICY APPROACHES & HUMAN RIGHTS CONCERNS, AND ECONOMIC & LEGAL IMPLICATIONS, was held at the Vanderbilt University School of Law on March 28-29. 1997. Featuring presentations by diverse speakers from a variety of places and perspectives, the symposium addressed a broad range of issues. Topics ranged from comparative constitutional law to human rights and practical business concerns. While differences emerged, it was clear that fully understanding any one area requires knowledge of the others: the viability of markets may well depend upon the validity of documents proclaiming …
Women's Rights In International Law, Valerle A. Dormady
Women's Rights In International Law, Valerle A. Dormady
Vanderbilt Journal of Transnational Law
This Note contains a detailed review of state responses to the Platform for Action produced at the United Nations' Fourth World Conference on Women. The Author finds that this consensus was reached on most of the proposals outlined in the Platform for Action. Certain proposals, however, regarding reproductive and Inheritance issues, were subject to a great deal of dispute during the drafting of the Platform for Action, and many countries ultimately registered reservations as to these proposals. While the news reports of the Fourth World Conference on Women focused on the lobbying activities of both Islamic countries and Catholic countries, …
Urban Despair And Nietzsche's "Eternal Return:" From The Municipal Rhetoric Of Economic Justice To The International Law Of Economic Rights, Barbara Stark
Vanderbilt Journal of Transnational Law
Urban poverty has had a devastating impact, especially on African Americans in the United States, who have been ill-served by the rhetoric of opportunity. In this Article, the author argues that economic rights must be recognized as rights if the urban poor are even to dream of economic justice. The author uses the writings of German philosopher Friedrich Nietzsche to explain how the past can be reclaimed. Urban poverty must be understood in an historical context. Limiting the inquiry to a domestic historical context not only blinds people to the relationship between domestic and international poverty, and domestic and international …
Patrimonicide: The International Economic Crime Of Indigenous Spoliation, Ndiva Kofele-Kale
Patrimonicide: The International Economic Crime Of Indigenous Spoliation, Ndiva Kofele-Kale
Vanderbilt Journal of Transnational Law
In the past two decades, the organized and systematic theft of a state's wealth and resources by its leaders has reached unprecedented levels in developing and less-developed states. Unlike previous acts of embezzlement by political leaders, this new wave of corruption-referred to as indigenous spoliation--involves billions of dollars and causes widespread social and economic devastation. This Article defines indigenous spoliation and presents some examples of this practice. The author describes the inadequacy of domestic law in dealing with the problem and suggests that international law should provide a remedy. Next, the author proposes a framework for holding persons involved in …
Provisional Measures In The Inter-American Human Rights System: An Innovative Development In International Law, Jo M. Pasqualucci
Provisional Measures In The Inter-American Human Rights System: An Innovative Development In International Law, Jo M. Pasqualucci
Vanderbilt Journal of Transnational Law
In this Article, Professor Pasqualucci examines the developing jurisprudence of provisional measures in the Inter-American human rights system. Through the adoption of provisional measures, a human rights court may order a state to protect persons who are in danger of imminent death or torture. The author first provides an overview of the Inter-American system of human rights. She then describes the historical background of the jurisprudence of provisional measures in the International Court of Justice and the European human rights system, which served as models for provisional measures in the developing Inter-American system. Finally, she analyzes the use of provisional …
Deportation And Transfer Of Civilians In Time Of War, Jean-Marie Henckaerts
Deportation And Transfer Of Civilians In Time Of War, Jean-Marie Henckaerts
Vanderbilt Journal of Transnational Law
In this Article, the Author discusses the international law prohibiting the deportation and transfer of civilians during times of war. The Author first focuses on Article 49 of the Fourth Geneva Convention, describing its genesis and its character as customary international law. The Author examines several specific instances of illegal deportations in Kuwait, the former Yugoslavia, and the Israeli-occupied territories, and discusses the application of Geneva IV to these situations. He concludes that more should be done to enforce international law prohibiting the transfer of civilians during times of war and to punish states for engaging in massive deportation.
Books Received, Law Review Staff
Books Received, Law Review Staff
Vanderbilt Journal of Transnational Law
Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace
By James Michael Zimmerman
New York, New York: Quorum Books, 1992. Pp.206.
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Fact-Finding before International Tribunals
Edited by Richard B. Lillich
Irvington-on-Hudson, New York: Transnational Publishers Inc., 1992, Pp. 338.
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International Human Rights Law in the Commonwealth Caribbean
Edited by Angela D. Byre and Bevereley Y. Byfield
Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991. Pp. 398.
Human Rights In The World Court, Stephen M. Schwebel
Human Rights In The World Court, Stephen M. Schwebel
Vanderbilt Journal of Transnational Law
In this Article, Judge Schwebel reviews the cases of the International Court of Justice and its predecessor, the Permanent Court of International Justice, that have substantial human rights implications. He observes that, while the World Court is not a human rights court in the contemporary sense of that term, since standing in contentious cases is limited to States, it nevertheless has constructively dealt with a number of important issues of human rights, as in its early holding that individuals may be the direct beneficiaries of treaty rights.
The Court has played a notable role in promoting the protection of human …
Books Received, Law Review Staff
Books Received, Law Review Staff
Vanderbilt Journal of Transnational Law
Taxation in the People's Republic of China
By Jinyan Li
New York, New York: Praeger Publishers, 1991. Pp. 208. $49.95.
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Liberating the Law: Creating Popular Justice in Mozambique
By Albie Sachs and Gita Honwana Welch
Atlantic Highlands, New Jersey: Zed Books, 1990. Pp. 132. $55.00.
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International Fugitives: A New Role for the International Court of Justice
By Barbara M. Yarnold
New York, New York: Praeger Publishers, 1991. Pp. 168. $37.95.
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Effective Lobbying in the European Community
By James N. Gardner
Boston, Massachusetts: Kluwer Law and Taxation Publishers,1991. Pp. xix, 162. $45.00.
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European Human Rights Law
By …
International Human Rights Law Concerning Women: Case Notes And Comments, Rebecca J. Cook
International Human Rights Law Concerning Women: Case Notes And Comments, Rebecca J. Cook
Vanderbilt Journal of Transnational Law
This Essay addresses the application of international human rights law to women. Most of the cases addressed in this Essay involve alleged discrimination based on sex or marital status. Professor Cook notes that international, regional, and national courts have applied human rights principles to ensure that women's human rights are upheld, although not always to the full extent originally envisioned under the Universal Declaration of Human Rights. To illustrate this point, Professor Cook reviews cases arising under international, regional, and specialized treaties, including the International Covenant on Civil and Political Rights, and the extent to which such discrimination interferes with …
Books Received, Law Review Staff
Books Received, Law Review Staff
Vanderbilt Journal of Transnational Law
THE JURIDICAL BAY
By Gayl S. Westerman
New York: Oxford University Press, 1987. Pp. xii, 290. $39.95
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HELSINKI, HUMAN RIGHTS AND EUROPEAN SECURITY: ANALYSIS AND DOCUMENTATION
By Vojtech Mastney
Durham, North Carolina: Duke University Press, 1986. Pp. xxxv, 389. $49.50 hard cover, $18.95 soft cover
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NEITHER CONFIRM NOR DENY
By Stuart McMillan
Westport, Connecticut: Greenwood Press, 1987. Pp. viii, 177
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INTERNATIONAL LAW OF TAKEOVERS AND MERGERS: THE EEC, NORTHERN EUROPE, AND SCANDINAVIA
By H. Leigh Ffrench
Westport, Connecticut: Greenwood Press, 1986. Pp. viii, 390
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INTERNATIONAL LAW: PROCESS AND PROSPECT
By Anthony D'Amato
Dobbs Ferry, New York: …
Panel Discussion, Professor Jonathan Charney, Professor Thomas Franck, Professor Jordan Paust, Professor John Murphy, Geoffrey Levitt, Professor Kenneth Abbott, Professor Robert Friedlander, Professor Alberto Coll, Professor Jerome Reichman
Panel Discussion, Professor Jonathan Charney, Professor Thomas Franck, Professor Jordan Paust, Professor John Murphy, Geoffrey Levitt, Professor Kenneth Abbott, Professor Robert Friedlander, Professor Alberto Coll, Professor Jerome Reichman
Vanderbilt Journal of Transnational Law
Kelsen, in his writings, took the position that in law, particularly international law, there are superior and inferior limits to the law; that is, when a norm is articulated and the society behaves in conformance with the norm, and it would do so even in the absence of the norm, the norm is not serving a legal function; it is not serving a normative function of encouraging behavior because the behavior would be in conformance with that norm in any event. There's also the inferior limit to the law; that is, a situation where a rule is articulated but the …
Regional Human Rights Regimes: A Comparison And Appraisal, Burns H. Weston, Robin A. Lukes, Kelly M. Hnatt
Regional Human Rights Regimes: A Comparison And Appraisal, Burns H. Weston, Robin A. Lukes, Kelly M. Hnatt
Vanderbilt Journal of Transnational Law
For Americans at least, active concern for human rights on the international plane is demonstrated perhaps most conspicuously in the promotion and protection of human rights through the United Nations and its allied agencies--apart, that is, from the promotion and protection of human rights through United States foreign policy and the work of such nongovernmental organizations as Amnesty International. Supplementing this globally-oriented human rights activity, however, are international human rights regimes operating regionally in Western Europe, the Americas, Africa and the Middle East. Concededly, Asia is not yet represented, and only the first three of the represented regions have gone …
Books Received, Law Review Staff
Books Received, Law Review Staff
Vanderbilt Journal of Transnational Law
Books Received
The Utilization of Nuclear Energy and International Law By Vanda Lamm Atlantic Highlands, New Jersey: Humanities Press International, Inc. 1984 Pp. 151. $29.95
War, Foreign Affairs, and Constitutional Power By Henry Bartholomew Cox Cambridge, Massachusetts: Ballinger,1984. Pp. xx, 331 $35.00
Guidelines For International Election Observing Prepared by Larry Garber Washington, D.C.: The International Human Rights Law Group, 1984. Pp. iii, 90. $7.95
International Codes and Multinational Business: Setting Guidelines for International Business Operations By John M. Kline Westport, Connecticut: Qurom Books, 1985Pp. vi, 184. $35.00
Public Enterprises in Mixed Economies: Some Macroeconomic Aspects By Robert H. Floyd, Clive …
Political Refugees, Nonrefoulement And State Practice: A Comparative Study, Robert C. Sexton
Political Refugees, Nonrefoulement And State Practice: A Comparative Study, Robert C. Sexton
Vanderbilt Journal of Transnational Law
This Article will survey and assess the attempts of five of the major refugee receiving countries of the West, the United States, Canada, Great Britain, France, and Italy, to comply with the mandates of the Convention and Protocol. Specifically, inquiry will focus on the two issues most applicable to the admission and exclusion of political refugees: (1) domestic interpretation of the Convention definition of "refugee;" and (2) adherence to the principle of nonrefoulement, which is the Convention's proscription on returning persons falling within its refugee definition to countries of alleged persecution.
Section II explores the precise substantive provisions of the …
Books Received, Law Review Staff
Books Received, Law Review Staff
Vanderbilt Journal of Transnational Law
Japan's Reshaping of American Labor Law By William B. Gould Cambridge, Massachusetts: The MIT Press, 1984. Pp.xii, 166. $19.95.
World Economic Outlook By The Staff of the International Monetary Fund Washington, D.C.: International Monetary Fund,1984. Pp. ix, 162. $15.00.
Recent Multilateral Debt Restructurings With Official and Bank Creditors By E. Brau and R.C. Williams Washington, D.C.: International Monetary Fund, 1983. Pp. vii, 28. $5.00.
The Fund, Commercial Banks, and Member Countries By Paul Mentre Washington, D.C.: International Monetary Fund, 1984. Pp. v, 35. $5.00.
International Law and the New States of Africa By Yilma Makonnen New York: Unipub, 1983. Pp. …