Law Commons^™

The Furundzija Judgment And Its Continued Vitality In International Law, Chad G. Marzen

Chad G. Marzen

The Furundzija decision of the International Criminal Tribunal for the Former Yugoslavia stands as a landmark decision in international jurisprudence since it not only affirmed that the norm prohibiting torture has attained jus cogens status under international law, but expanded accountability and liability for violations of commission as well as omission. In this essay, I not only address Furundzija’s holdings and its implications in the international sphere, but specifically analyze the legacy of the Furundzija judgment on U.S. domestic civil cases involving the Alien Tort Statute.

Significantly, the Tribunal’s decision not only properly recognizes faults and crimes of commission, but …

Marbury V. Madison And The Foundation Of Law, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Book Review. Joan Biskupic, An American Original: The Life And Constitution Of Supreme Court Justice Antonin Scalia, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Tribal Land Laws In Andhra Pradesh, Hari Priya

Hari Priya

No abstract provided.

Section 4 Of The Hindu Succession Act Of 1956, Hari Priya

Hari Priya

A brief write up in the form of a comprehensive article aiming to critically evaluate the Section 4 of the Hindu Succession Act of 1956. The law, as it stands amended, has not only brought about changes in the succession laws of Hindus, but has also paved the way for some positive modifications in the law of partition, alienation of property, inheritance and adoption, and the paper is an effort to evaluate this provision of the law.

A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis

Michael W. Lewis

The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …

Statutes Undermine The Progress Made: The Criminalisation Of Positive Women, Aziza Ahmed, Beri Hull, Alice Welbourn, Emma Bell, Heidi Nass

Aziza Ahmed

Criminalisation laws have a specific and nuanced impact on women living with HIV. An understanding of the consequences of such laws will help positive women and other advocates to combat negative uses of such laws, and to frame and advocate for effective alternatives for HIV prevention. This article helps tease out some of the ways that criminalisation can negatively impact the lives of positive women in particular: the explicit sex discrimination in the laws, the gender bias in courtrooms, the impact on marginalised women, and the increase in stigma and discrimination through criminalisation laws.

Three Takes On Global Justice, Frank J. Garcia

Frank J. Garcia

No abstract provided.

Evaluating South Africa's Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan Marshfield

Jonathan Marshfield

Perspectives On International Criminal Justice, M. Bassiouni

M. Cherif Bassiouni

No abstract provided.

Contracting For State Intervention, W. Mark C. Weidemaier

W. Mark C. Weidemaier

Svenskt Rättsligt Skydd Mot Säkerhetsrådets Beslut [Swedish Legal Protection Against Un Security Council Decisions], Vilhelm Persson

Vilhelm Persson

National authorities are sometimes expected to implement acts of the Security Council. This may cause questions concerning applicability of human rights regulation. On a regional level such questions have already been brought to the European Court of Human Rights and the European Court of Justice. On a national level, the Swedish fundamental laws are in principle applicable to all acts of Swedish authorities. Authorities should therefore set aside acts of the Security Council that are incompatible with rights protected by the fundamental laws. This is the case even when authorities act outside of Swedish territory. However, the fundamental laws were …

Officially Immune? A Response To Bradley And Goldsmith, Chimene I. Keitner

Chimene I Keitner

No abstract provided.

The Common Law Of Foreign Official Immunity, Chimene I. Keitner

Chimene I Keitner

No abstract provided.

By Prohibiting Foreign Lawyers From Participating, California Is Missing Out, David D. Caron, Leah D. Harhay

David D. Caron

California Code of Civil Procedure §1282.4 and Local Rule 9.43 govern the ability of attorneys who are not members of the State Bar of California to act as counsel in international arbitrations here. Both allow out-of-state attorneys to participate in these arbitrations, but provide no similar provisions for out-of-country attorneys. However, even out-of-state attorneys are not safe. In 2011, when §1282.4 sunsets, out-of-state attorneys will also be barred from appearing as counsel in California-based international arbitrations.

How China Succeeded In Protecting Olympic Trademarks And Why This Success Will Not Generate Immediate Improvements In Intellectual Property Protection In China, Aileen M. Mcgill

Aileen M McGill

After centuries of stagnant growth and international isolation, China has emerged as the fastest-growing economy in the world and one of the most important parties in international trade. This staggering growth and influx of foreign goods has led to rampant counterfeiting of brand-name goods in a society with little cultural basis for individual intellectual property rights. When Beijing was awarded the 2008 summer Olympics in 2001, the Chinese government moved quickly to prepare for this beloved international event, rallying this massive country for, what many considered to be their grand emergence onto the world stage. One of the reforms enacted …

State Immunity And Jus Cogens Violations: The Alien Tort Statute Against The Backdrop Of The Latest Developments In The ‘Law Of Nations’, Michele Potestà

Michele Potestà

No abstract provided.

A Missing Part In International Investment Law: The Effectiveness Of Investment Protection Of Taiwan's Bits Vis-À-Vis Asean States, Han-Wei Liu

Han-Wei Liu

No abstract provided.

The Relevance Of International Law To The Domestic Decision On Prosecutions For Past Torture, Bartram Brown

Bartram Brown

Impact Of The Australia-Us Free Trade Agreement On Australian Medicines Regulation And Prices, Thomas A. Faunce, James Bai, Duy Nguyen

Thomas A Faunce

The Australia – United States Free Trade Agreement (AUSFTA) came into force on 1 January 2005. Before and subsequently to the AUSFTA being concluded, controversy surrounded the debate over its impact on Australia ’ s health policy, specifically on regulation of pharmaceutical patents and Australia ’ s cost-effectiveness system relating to prescription medicine prices known as the Pharmaceutical Benefits Scheme (PBS). This article examines the expectations of both parties in the pharmaceutical sector with regard to the AUSFTA, as well as how successfully they were achieved. It seeks to analyse important relevant outcomes for regulators, the public and pharmaceutical industry, …

Nanotechnology And The International Law Of Weaponry: Towards International Regulation Of Nano-Weapons., Thomas A. Faunce, Hitoshi Nasu

Thomas A Faunce

The development of nanotechnology for military application is an emerging area of research and development, the pace and extent of which has not been fully anticipated by international legal regulation. Nano-weapons are referred to here as objects and devices using nanotechnology or causing effects in nano-scale that are designed or used for harming humans. Such weapons, despite their controversial human and environmental toxicity, are not comprehensively covered by specific, targeted regulation under international law. This article critically examines current international humanitarian law and arms control law regimes to determine whether significant gaps exist in the regulation of nanotechnology focused on …

Discourse Or Merely Noise? Regarding The Disagreement On Undocumented Migrants, Markus Gunneflo, Niklas Selberg

Markus Gunneflo

How The Eu's Legal System Does And Does Not Work, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Power, Exit Costs, And Renegotiation In International Law, Timothy L. Meyer

Timothy Meyer

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs – which promote the stability of legal rules – have distributional …

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Jonathan Todres

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention - the ultimate goal - and addressing these problems in a comprehensive and systematic manner. Instead, …

Withdrawing From Custom And The Paradox Of Consensualism In International Law, Chin Leng Lim, Olufemi Elias

Chin Leng Lim

In their excellent article, Withdrawing from International Custom, Professors Curtis Bradley and Mitu Gulati call into question the prevailing conception of customary international law, according to which states “never have the legal right to withdraw unilaterally from customary law” (the “Mandatory View”). Bradley and Gulati question the intellectual history and functional desirability of the Mandatory View, and they identify “significant uncertainties about how the Mandatory View would work in practice.” Their observations appear to us to be convincing. If the basis of the Mandatory View is not convincing, then its main tenets, such as the absence of a right of …

The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, Or Judicially-Constructed “Victor’S Impunity”?, C. Peter Erlinder

C. Peter Erlinder

ABSTRACT The U.N. Security Council Ad Hoc Rwanda Tribunal: International Justice, or Juridically-Constructed “Victor’s Impunity”? Prof. Peter Erlinder [1] ________________________ “…if the Japanese had won the war, those of us who planned the fire-bombing of Tokyo would have been the war criminals….” [2] Robert S. McNamara, U.S. Secretary of State “…and so it goes…” [3] Billy Pilgrim (alter ego of an American prisoner of war, held in the cellar of a Dresden abattoir, who survived firebombing by his own troops, author Kurt Vonnegut Jr.) Introduction Unlike the postWW- II Tribunals, the U.N. Security Council tribunals for the former Yugoslavia [10] …

Das Virtudes Cívicas Clássicas Às Virtudes Pós-Modernas - Dos Tempos E Dos Modos, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Ao mesmo tempo que importa recuperar, na nossa memória e na educação, os grandes exemplos dos virtuosos heróis e sábios da Antiguidade Clássica, que a deseducação tem olvidado, não se pode esquecer que o mundo pós-moderno em que vivemos requer de nós aptidões, virtualidades, posicionamentos diferentes. Não para caminharmos no sentido de todos os demais, mas para respondermos com valor aos reptos do presente. Este artigo procura conciliar, pois, o legado clássico das virtudes cívicas, com algumas propostas inspiradas em autores recentes (como Italo Calvino e Alain Finkielkraut) para o séc. XXI

Direito, Utopia E Insularidade, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não é por acaso que tantas utopias literárias se localizam ficcionalmente em ilhas. Não é por acaso que as utopias são uma espécie de descrição constitucional sem as amarras dos artigos de um código de direito político. Não é por acaso que as ilhas, parecendo uma prisão, rodeada de mar por todos os lados, são afinal sonhos de onde se pode sair, voando. Não só em sonhos oníricos, mas em sonhos que se podem tornar realidade. Este artigo desenvolve as ligações entre os aspectos literários, políticos e jurídicos das utopias na sua dimensão insular.

Virtude Da Constituição E Virtudes Republicanas, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

A virtude da Constituição é a sua essência e função. E a Constituição tem sempre uma virtude liberal-democrática, apesar de tudo. Conra tudo e contra todos, apesar por vezes mesmo de si própria e das intenções dos seus autores... Depois do “retorno” dos valores à política e ao Direito Constitucional, é a vez da volta das virtudes à discussão, designadamente pela via da ética constitucional ou republicana, de novo na ordem do dia em muitos países. Quais serão, então, as principais virtudes juspolíticas, constitucionais, ou republicanas? O presente artigo intenta também uma proposta de virtudes republicanas concretas para o nosso …