Law Commons^™

Atrocities, Deterrence, And The Limits Of International Justice, David Wippman

Fordham International Law Journal

Unfortunately, the connection between international prosecutions and the actual deterrence of future atrocities is at best a plausible but largely untested assumption. Actual experience with efforts at deterrence is not encouraging. Before placing too much reliance on deterrence as a basis for supporting international criminal prosecutions, especially over possible alternatives such as truth and reconciliation commissions, we ought at least to consider carefully the obstacles to achieving effective deterrence.

Nato's Actions To Uphold Human Rights And Democratic Values In Kosovo: A Test Case For A New Alliance, Sergio Balanzino

Fordham International Law Journal

On NATO's fiftieth anniversary, we were faced with an unexpected choice: we had to decide whether the notion of common values is only rhetorical flourish or whether it carries real meaning. We made our choice. We decided that values do not only have to be preached, but also upheld. The essay will recount the events leading up to the deteriorating situation in Kosovo and outline the reasons for NATO's decision to take action. Next it will evaluate NATO's success in light of its humanitarian and military goals. Finally it will examine the challenges facing Kosovo and NATO in the future.

Modernization Of Ec Competition Law: Reform Of Regulation No. 17, Alexander Schaub

Fordham International Law Journal

Ladies and Gentlemen, at last year's conference I presented to you a wide variety of ongoing and proposed reforms with which the European Union intends to meet actual and future challenges for its competition policy. Today, one year later, we have made considerable progress in many respects. Most importantly, with our White Paper of 28 April 1999, we have launched the process for a fundamental reform of the rules implementing Articles 81 and 82 of the Treaty establishing the European Community (‘EC Treaty‘), which are currently laid down in Council Regulation No. 17. Anticipating your expectations and my fellow panelists' …

The Republic Of Turkey In Europe: Reconsidering The Luxembourg Exclusion, Patrick R. Hugg

Fordham International Law Journal

The EU's rebuff of Turkey's application for accession represents more than a missed opportunity to strengthen and deepen the relationship between these two related spheres. Indeed, the lack of finesse--the unnecessarily impolitic form of the rejection--propels Turkey in the opposite direction. The old assumption that relations with Europe were of primary importance is “subject to increasingly critical examination.” Acknowledging that Turkey may not be ready for accession in the next wave, the EU should have pursued some less antagonizing route. The premature decision to begin negotiations with Cyprus only intensifies the conflict.

Protecting The Rights Of Pediatric Research Subjects In The International Conference On Harmonisation Of Technical Requirements For Registration Of Pharmaceuticals For Human Use, Ann E. Ryan

Fordham International Law Journal

This Comment argues that the parties to the International Conference on Harmonization of Technical Requirements for Regulation of Pharmaceutical Drugs (ITCH) should adopt more specific guidelines for pediatric research than those included in its Good Clinical Practice Guidelines (ICH GCP), and analyzes their attempt to do so in the Draft Guideline on Pediatric Trials. Part I of this Comment outlines the genesis of the current international guidelines for human research and how they relate to pediatric subjects. Part I also explains the human research guidelines of the three principal members of the ICH. Part II describes the function of the …

Sink Or Swim Together? Developments In European Citizenship, Annette Schrauwen

Fordham International Law Journal

This article raises questions related to the rights connected with European citizenship. Furthermore, it gives rise to the discussion of the basis of European citizenship. Finally, it questions the value of European citizenship to the benefit of raising popular support of European integration.

Humanitarian Intervention: Could The Security Council Kill The United Nations?, Inocencio Arias

Fordham International Law Journal

Will 1999 be an annus horribilis (‘horrible year‘) for the United Nations? Some tend to believe the answer is yes. U.N. Secretary General Kofi Annan's important yet controversial speech awhile ago is a timely warning. Criticism of U.N. inaction, inefficiency, and indolence in the case of Kosovo, and, to a certain extent, and even more surprisingly, in East Timor is widespread. The fact that the organization may only act, however, when the U.N. Member States agree is often overlooked. This Essay explores the U.S. attitude toward the U.N., institutional imbalances within the U.N., and possible solutions to problems that arise …

Some Reflections On The One-China Principle, Su Wei

Fordham International Law Journal

There is but one China in the world. Taiwan is a part of China and the Government of the People's Republic of China is the sole legal government representing the whole of China. This is the basic content of the one-China principle. As one of the world's few time-honored countries, China has fine traditions and a brilliant civilization that can be traced back to ancient times. Such a civilization and traditions have nourished a Chinese culture of national unity as well as a set of values cherishing and defending unity. Deeply rooted in these Chinese cultural and philosophical backgrounds, the …

The Function Of State And Diplomatic Privileges And Immunities In International Cooperation In Criminal Matters: The Position In Switzerland, Paul Gully-Hart

Fordham International Law Journal

In so far as diplomats are concerned, their immunity from legal process arises under customary international law and treaty law (i.e., the Vienna Convention on Diplomatic Relations,' the Vienna Convention on Consular Relations,2 and the New York Convention on Special Missions' (or "New York Convention")). All three conventions state in their preliminaries that diplomatic immunity and privilege arise from international custom and that their function is not to benefit individuals, but to ensure the smooth and efficient performance of their duties in the interest of comity and of friendly relations between sovereign nations.

Some Thoughts On Restoration, Reintegration And Justice In The Transnational Context, Mark Andrew Sherman

Fordham International Law Journal

This Essay argues that all actors – prosecutors, judges, and defense counsel – should care about what happens to foreign offenders following a judgment of conviction or entrance of a guilty plea, and that transnational correctional processes should be constructed and used to facilitate restoration of the victim and victimized community, and rehabilitation and reintegration of the offender. This is critical because, as in the domestic context, decisions about where and how foreign offenders are to be punished have much to do with whether justice is achieved for victims, affected communities, and offenders.

Economic Incentives In Representing Publicly-Funded Criminal Defendants In England's Crown Court, Peter W. Tague

Fordham International Law Journal

The flux now engulfing the way in which the defenders of indigent criminal defendants are compensated in England's Crown Court provides a sober lesson for U.S. lawyers. Once, U.S. lawyers, who themselves are appointed to represent indigent defendants, could have cited English practice to support a hefty increase in the meager compensation they receive in many jurisdictions. Spiraling costs in England, however, have brought dramatic changes, and have occurred in a rush. This essay explores compensatory schemes, incentives to reduce the cost of case resolution, and methods to ensure adequate advocacy.

U.S. Securities Law For International Financial Transactions And Capital Markets, Richard T. Mcdermott

Fordham International Law Journal

This book review assesses Guy P. Lander's two-volume work on U.S. Securities Law for International Financial Transactions and Capital Markets. The review finds Landers’ volumes reliable and complete, believing that they will be utilized in much the same manner and with the degree of regularity with which such established treatises as the Lipton and Steinberger work, Takeovers & Freeze-Outs, are consulted. The present state of U.S. securities laws and their application to international transactions are presented in a logical and instructive fashion. The material is presented with clarity, but without oversimplification.

Book Review: The Rights International Companion To Criminal Law & Procedure: An International Human Rights & Humanitarian Law Supplement, Bruce Zagaris

Fordham International Law Journal

This Book Review provides a compact supplement to teaching criminal law and procedure by providing materials on the sources and application of international human rights and humanitarian law to criminal law. Part One reviews the sources and principles of international law. Part Two contains treaties and statutes setting forth the principles of state liability and individual culpability. Part Three provides excerpts from some of the major international criminal tribunals and some of the applicable treaty law. Part Four discusses criminal procedure. Part Five contains a discussion of principles of punishment for international crimes and the consideration of the death penalty …

Humanitarian And Legal Aspects Of The Crisis In Chechnya, Yuri V. Ushakov

Fordham International Law Journal

Russia's position and intentions regarding the settlement of the situation in the Chechen Republic (or “Republic”) are transparent and based on principle. We have nothing to hide. First, I will cover some points regarding the genesis of the tragic chain of events in and around Chechnya. The essay then discusses the merits of the antiterrorist operation in response to the 1999 mutiny of Chechen terrorists.

Attacking The Tools Of Corruption: The Foreign Money Laundering Deterrence And Anticorruption Act Of 1999, Juli Fendo

Fordham International Law Journal

This Comment discusses the effect that international organized crime and foreign government corruption has upon money laundering and the resultant need for the FMLDA. Part I discusses the basic elements of money laundering and the criminal actors who launder internationally, and anlyzes existing U.S. legislation designed to combat laundering and problems in the current legislation. Part II explains the legislative history, purpose, and proposed provisions of the FMLDA. Part III advocates adoption of this Act, and argues that the United States should no longer be complicit in the corruption and degradation of foreign governments via U.S. financial institutions.

The Rule Of Non-Contradiction In International Extradition Proceedings: A Proposed Apporach To The Admission Of Exculpatory Evidence, Jacques Semmelman

Fordham International Law Journal

The Gonzalez case is the latest in a growing series of cases that chip away at the Rule of Non-Contradiction. The case, for all practical purposes, entailed a trial on the merits before the extradition magistrate. This Article takes issue with Gonzalez and other cases that erode the Rule of Non-Contradiction. Recognizing the fairness concerns that motivate deviation from the Rule, this Article proposes a modification to it. Specifically, this Article proposes that courts adopt an approach similar to that used in civil cases for deciding a motion for summary judgment. If the accused's evidence is such that no reasonable …

The Need For Affirmative Action, Karl M. Meessen

Fordham International Law Journal

This article provides an introduction to the Symposium on the Competition Law of Deregulation. It surveys recent developments in this area and comments briefly on the symposium participants' contributions that are included in the book.

The Concept Of Disclosure Within European Financial Institutions, Peter Nobel

Fordham International Law Journal

I have been asked to make a few remarks regarding Arthur Laby's presentation, but, as everyone knows, it is very hard to discuss anything with the Securities Exchange Commission (“SEC”). As far as I can see, the conceptual interplay of ‘disclosure versus substantive rules,‘ or rather — in its historical order — ‘substantive rules versus disclosure,‘ has not yet been widely discussed in Europe. Let me first set out what I mean by the two approaches as there are probably differences of definition between the United States and Europe, and, indeed, my understanding differs a bit from the one presented …

Price Control And Other Regulatory Issues, Helmut Schadow

Fordham International Law Journal

Germany’s complete overhaul of the telecommunications legislation seeks to ensure easy access to the German market and a level playing field for all, based on regulation that is independent and quick to intervene against any abuse of market power, in other words to ensure a sound and predictable investment climate. Our regulation aims to promote competition in the telecommunications sector and to encourage technological and organizational progress at the same time. This policy stands to benefit all: customers, Deutsche Telekom AG, new entrants, the workforce, Germany as a place to do business, and the prospects of the German economy generally. …

Antitrust Law And Pay-Tv: The Italian Case, Claudio Cocuzza

Fordham International Law Journal

Television (or “TV”) broadcasting today is in the wake of a critical technological revolution. The development of new technologies is becoming increasingly rapid and the legal scenario is changing daily and sometimes disorganically. Regulation in this field is strictly connected with technology and its evolution. For this reason, it is worthwhile to go through a brief outline of the last and most significant television broadcasting techniques. Distribution of TV “signals” has occurred in Europe and especially in Italy — until the beginning of the present decade — almost exclusively through terrestrial networks, i.e. via etere. This situation means that in …

Defense Strategies Of National Carriers, Romina Polley

Fordham International Law Journal

This Essay will examine strategies implemented by national carriers in the European Union (or ‘EU‘) to preserve their longstanding monopolies that were constructed and protected by Member States against new airlines emerging in the framework of the liberalization of European Community (“EC” or “Community”) air transport. This analysis necessitates an assessment of whether liberalization of air transport in Europe has been a success, and if not, or not completely, what remains to be done to allow new entrants to challenge flag carriers, which still benefit from the advantages attributable to former protectionist regulation.

Perspectives On Competition Law: Problems And Solutions, David A.O. Edward

Fordham International Law Journal

This essay suggests that it does not follow that competition between jurisdictions is good merely because competition between economic operators in pursuit of economic goals is a good thing. The result, as the discussion on television indicated, may simply be a jurisdictional mess, as Dr. Markus Wagemann put it. You end up with all sorts of people seeking to pursue their own values: cultural values, regional values, and linguistic values; and the economic operator simply does not know where he or she stands in this jurisdictional competition. This point can perhaps be completed by simply mentioning a remark made to …

A Critical Review Of The White Paper On The Reform Of The Ec Competition Law Enforcement Rules, Mario Siragusa

Fordham International Law Journal

This Essay discusses concerns raised by the core proposal in the Commission of European Communities' (“Commission”) recently published White Paper on Modernisation of the Rules Implementing Articles 85 and 86 of the Treaty establishing the European Community (“White Paper”), namely the ending of the authorization and notification system.

U.S.-Russian Mutual Legal Assistance Treaty: Is There A Way To Control Russian Organized Crime?, Eugene Solomonov

Fordham International Law Journal

This Comment analyzes U.S. and Russian bilateral cooperation in fighting organized crime and the difficulties associated with this fight. Part I of this Comment presents the historical development of Russian organized crime, its domestic effects, and its internationalization, particularly in the United States. Part I also highlights the Russian government's legislative attempts to combat organized crime. Finally, Part I examines examples of international bilateral cooperation, such as that between Israel and the United States, which can be emulated by the Russian and U.S. authorities. Part II analyzes the existing Mutual Legal Assistance Agreement (“MLAA”) between the United States and the …

Prosecution And Punishment Of The Crime Of Genocide, Johan D. Van Der Vyver

Fordham International Law Journal

Part I of this Article scrutinizes the current definition of genocide in view of its theoretical circumscription in the Genocide Convention and with special reference to the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu. Part II considers the validity and the application of the principle of universal jurisdiction to the crime of genocide, and the consequent duty of states to bring perpetrators of genocide to justice. Part III focuses on the jurisdiction ratione materia of the ICC regarding the crime of genocide. Part IV will pay special attention to the prosecution of genocide in the …

The Russian Approach: The Fight Against Genocide, War Crimes, And Crimes Against Humanity, Sergey Lavrov

Fordham International Law Journal

Despite some ambiguous periods in Russia’s history, its record in affirming the foundations

of humanism in international relations is unquestionable. The new democratic Russia, which is

faithful to traditions of humanism and mercy, is making strong efforts to defend victims of genocide,

war crimes, and crimes against humanity. The experience of the international community

in combating genocide, war crimes, and crimes against humanity indicates that the fight against

these evils is bound with efforts to support international peace and security. Post-World War II

history indicates that it is the United Nations that is the central figure in the struggle for …

The Maturation Of Italy's Response To European Community Law: Electric And Telecommunication Sector Institutional Innovations, Patrick Del Duca, Duccio Mortillaro

Fordham International Law Journal

After briefly describing the essential mandates of the relevant EC directives, this Article discusses the novel-for-Italy independent regulatory commissions that are critical to the developing competitive frameworks for electricity and telecommunication. It then reviews applicable substantive law for each of the electricity and telecommunication sectors, and offers examples of how the independent regulatory commissions are working to shape competitive markets. Italy's independent regulatory commissions have resulted in a reorganization of its electric and telecommunication sectors quite different than that contemplated as recently as the early 1990s. Italy's creation of its new independent regulatory commissions, as well as the mixed experience …

The Protection Of Individual Rights And The Court Of First Instance Of The European Communities, Paolo Mengozzi

Fordham International Law Journal

The creation of the Court of First Instance has contributed on the one hand to the improvement of the functioning of the Court of Justice, and on the other hand, better judicial protection of Union citizens. The latter was accomplished through the legal protection within the framework of creating a true European citizenship.

Trips To Thailand: The Act For The Establishment Of And Procedure For Intellectual Property And International Trade Court, Andrea Morgan

Fordham International Law Journal

This Comment examines the extent to which the Intellectual Property and International Trade Court (IPIT) satisfies the intellectual property enforcement provisions of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Part I presents the legal environment of intellectual property in Thailand before TRIPs, the background of TRIPs, and the enforcement requirements of TRIPs. Part II discusses the legislation creating the IPIT Court, and assesses the enforcement procedures as prescribed by the legislation that created the IPIT Court and as employed by the IPIT Court. Part III argues that the IPIT Court is a positive development because it reduces conflict …

Canada's Approach To Jurisdiction Over Cybertorts: Braintech V. Kostiuk, Daniel P. Schafer

Fordham International Law Journal

This comment explores a judgment in Texas against a Canadian defendant and corresponding suit in Canada seeking to enforce the judgment. The ultimate determination was significant, representing the first time that a Canadian appellate court addressed the impact of the Internet on a Court's adjudicatory decision. The comment explores the difficulty that the internet poses to the doctrine of recognition and enforcement of foreign judgments.