Law Commons^™

Balance-Of-Payments Crises In The Developing World: Balancing Trade, Finance And Development In The New Economic Order, Chantal Thomas

Chantal Thomas

No abstract provided.

Poverty Reduction, Trade, And Rights, Chantal Thomas

Chantal Thomas

No abstract provided.

The Club Approach To Multilateral Trade Lawmaking, Nicolas Lamp

Nicolas Lamp

The World Trade Organization (WTO) stands at the center of an emerging world of global economic governance. Its rules affect important aspects of all our lives – how much we pay for the products that we purchase, what types of employment are open to us, and which medicines we can access. And yet, while the WTO was conceived as a “negotiating machine” that would develop rules in sync with an increasingly dynamic global economy, negotiations on a new set of global trade rules have now been deadlocked for over a decade. This impasse is all the more surprising in light …

Impartiality And Independence: Misunderstood Cousins, James E. Moliterno

James E. Moliterno

No abstract provided.

Could The Rwandan And Darfur (Sudan) Genocides Have Been Prevented By The International Community? A Postmortem, Ifem E. Orji

Ifem E Orji

The international law principles of sovereignty and territorial jurisdiction of states preclude external interference in a state’s domestic affairs. Shaped by the old agreements among European states in the Treaties of Westphalia in 1648, and copied and modernized in the Charters of the United Nations and many regional organizations, non-interference, in practice, has not worked in many instances. The great powers have always chosen when to, or not to, interfere. As case studies, this article chronicles the events in the Rwandan and Darfur genocides, and concludes that the international community, particularly the super powers of the UN Security Council, seized …

Islamic Hamas And Secular Fatah: How Does The Governing Process Work?, Sanford R. Silverburg, Shadi Alshdaifat

Sanford R Silverburg

No abstract provided.

Domestic Judicial Defiance In The European Union: A Systemic Threat?, Arthur Dyevre

Arthur Dyevre

In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, recent decisions by national courts may seem to bode ill for the authority of EU law. In January 2012, the Czech Constitutional Court declared the decision of the Court of Justice in the Landtová case ultra vires. This came on the heels of other domestic rulings stressing the constitutional limits of integration. More recently, in February 2014, the German …

Transnational Area-Based Ocean Management: Finding Avenues For Regulatory Harmonization, Xiao Recio-Blanco

Xiao Recio-Blanco

In the last few decades, governments have regulated human activities at sea and their environmental impact through piecemeal, use-by-use prescriptive regulation. These domestic laws have been unable to solve basic problems such as overfishing or marine habitat loss.

Some ocean management experts have argued that managing areas of the sea in order to maximize one or a set of objectives might be more effective than the non-spatial approach. Implementing a comprehensive system of area-based management requires planning and zoning. The process of marine spatial planning (MSP) involves assessing ocean resources as well as current and future uses; identifying compatible and …

Proactive Cybersecurity: A Comparative Industry And Regulatory Analysis, Scott J. Shackelford, Amanda Craig, Janine Hiller

Scott Shackelford

This Article analyzes recent business realities and regulatory trends shaping the proactive cybersecurity industry. To provide a framework for our discussion, we begin by describing the historical development of the industry and how it has been shaped by the applicable law in the United States and other G8 nations. We then catalogue the proactive cybersecurity practices of more than twenty companies, focusing on four case studies that we consider in the context of polycentric “global security assemblages.” Finally, we assess the emergence of proactive cybersecurity norms, both within industry and international law, and consider the implications of this movement on …

Sustainable Cybersecurity: Applying Lessons From The Green Movement To Managing Cyber Attacks, Scott J. Shackelford, Tim Fort

Scott Shackelford

According to Frank Montoya, the U.S. National Counterintelligence Chief, “We’re an information-based society now. Information is everything. That makes . . . company executives, the front line – not the support mechanism, the front line – in [determining] what comes.”[1] Chief Montoya’s remarks underscore the central role played by the private sector in ongoing efforts aimed at enhancing cybersecurity, much like the increasingly vital role firms are playing in fostering sustainability. For example, according to Accenture surveys, the number of managers who consider sustainability to be critical to the future success of their organizations jumped from fifty to more …

State Practice As Metaphor: A Reconciliation Approach, Patrick Kelly

Patrick Kelly

State practice as metaphor is a broader idea than the empirical role of state practice in the formation of custom. State practice as used in this journal is a metaphor for all the methods and processes to increase the democratic legitimacy of international norms including not only the practices of states, but also other forms of representation by which citizens express their views. Increasingly norms are articulated and influenced by non-governmental organizations, private standard setting groups, quasi-public entities such as the Inter-Parliamentary Union and transgovernmental organizations such as the Basle Committee on Banking Supervision. With the advent of the internet, …

Deployment Of Geoengineering By The Private And Public Sector: Can The Risks Of Geoengineering Ever Be Effectively Regulated?, Daniela E. Lai

Daniela E Lai

Geoengineering has been described as any large-scale environmental manipulation designed with the purpose of mitigating the effects of climate change without decreasing greenhouse gas emissions (GHGs). Currently there are no specific rules regulating geoengineering activities particularly if geoengineering is deployed in areas beyond national jurisdiction. This article argues that, in order to mitigate the risks of geoengineering, there needs to be effective regulation of its deployment both in international and domestic law. The risks of geoengineering can only be effectively regulated if there is international cooperation between all levels of governments and private individuals involved in the research and development …

Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic

Scott Shackelford

There is a growing consensus that nations bear increasing responsibility for enhancing cybersecurity. A related recent trend has been the adoption of long-term strategic plans to help deter, protect, and defend against cyber threats. These national cybersecurity strategies outline a nation’s core values and goals in the realm of cybersecurity law and policy, from mitigating cybercrime and espionage to preparing for cyber warfare. This Article assesses the notion that nations bear the primary responsibility for managing cyber attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies as a vehicle to discover governance trends that could give rise to customary …

The Death Penalty Between International Guarantees And Moroccan Law, Fatima Zahra El Hajraoui

Fatima Zahra El hajraoui

Abstract:

For as long as the human right to life was the main goal of international community, a number of global conventions and regional and international resolutions were aimed at reducing the death penalty. However, this does not mean that the death penalty and retribution in the Arab countries (Islamic Countries) were abolished; they were and still are a black point that stands in front of this right.

In many parts of the world, the death penalty is now understood to be a human rights violation. This understanding has led to progress in the abolition of the death penalty in …

Duty To Revolt, Katherine Crabtree

Katherine Crabtree

The Universal Declaration of Human Rights not only prescribes universal rights but also individual duties, stating “everyone has duties to the community in which alone the free and full development of his personality is possible.” This paper examines the nature of the right to revolution and considers whether an individual’s duty to uphold human rights includes a moral duty to revolt when the current social structure permits or requires intolerable systematic human rights violations. Four subsections discuss (1) the development and nature of disciplinary power that a government imposes on citizens in order to force conformity to the laws, (2) …

The Freedom Of Navigation Program: Assessing 35 Years Of Effort, Joshua L. Root

Joshua L. Root

The US challenges excessive maritime claims - claims that do not comport with UNCLOS or customary international law - of other countries by sailing war ships into areas of the ocean subject to such claims. The US has challenged claims in this manner under the Freedom of Navigation Program for 35 years. No comprehensive assessment has been conducted on whether the program "works." This article looks at four countries that have been the subject of FON operations and tracks any changes in their law over time to see if there is correlation between the FON program and any roll back …

A Gateway Question Of Arbitrability: The Ambiguity Of Article Ii Of The New York Convention On The Recognition And Enforcement Of Foreign Arbitral Awards Of 1958, John Ja Burke

John JA Burke

This article addresses, a well established but unsettled, gateway question of International Commercial Arbitration: who, national courts or arbitral tribunals, has primary competence to decide whether parties have entered into an internationally cognizable arbitration agreement. The flip side of this question implicates the doctrine of Kompetenz/Kompetenz. The uncertainty, for both issues, stems from the legal status accorded to Article (2)(3) of the New York Convention on the recognition and enforcement of foreign arbitral awards of 1958 [1958 NYC or Convention]. Article (2)(3) obliges Courts of a Contracting State to refer parties to arbitration provided two conditions precedent are met thereby …

The Principles Of International Law: Interpretivism And Its Judicial Consequences, Gianluigi Palombella

Gianluigi Palombella

Principles are part of international law as much as of other legal orders. Nonetheless, beyond principles referred to the functioning of IL, or the sector related discipline in discrete fields, those fundamental principles identifying the raison d’etre, purpose and value of the legal international order, as a whole, remain much disputed, to say the least. In addressing such a problem, one that deeply affects interpretation and legal adjudication, this article acknowledges the limits and weakness of legal positivism in making sense of the inter- and supra-national legal order(s). It appraises also the novel from the late Ronald Dworkin, concerning …

The Inter-American Court On Human Rights’ Judgment In Artavia Murillo V. Costa Rica And Its Implications For The Creation Of Abortion Rights In The Inter-American System Of Human Rights, Ligia M. De Jesus

Ligia M. De Jesus

In Artavia, the Inter-American Court on Human Rights addressed the meaning of article 4(1) the American Convention on Human Rights, which recognizes a person’s right to life beginning at conception. The court handed a restrictive interpretation of this provision, holding that, before implantation, the human embryo is not a person entitled to human rights protection under the American Convention, while redefining the term “conception” as implantation, not fertilization. The court also redefined article 4(1)’s terms “in general, from the moment of conception” to mean that only gradual or incremental protection should be given to prenatal life, depending on the unborn …

Redefining Terrorism: The Danger Of Misunderstanding The Modern World's Gravest Threat, Jennifer Breedon

Jennifer Breedon

No abstract provided.

The African Origins Of International Law: Myth Or Reality?, Jeremy I. Levitt Dr.

Jeremy I. Levitt Dr.

This Article reconsiders the prevalent ahistorical assumption that international law began with the Treaty of Westphalia. It gathers together considerable historical evidence to conclude that the ancient world, particularly the New Kingdom period in Egypt or Kemet from 1570-1070 BCE, deployed all three of what today we would call sources of international law. African states predating the modern European nation state by nearly 6000 years engaged in treaty relations (the Treaty of Kadesh), and applied rules of custom (the MA'AT) and general principles of law (as enumerated in the Egyptian Bill of Rights). While Egyptologists and a few international lawyers …

The African Origins Of International Law: Myth Or Reality?, Jeremy I. Levitt Dr.

Jeremy I. Levitt Dr.

No abstract provided.

Can The Center Hold? The Vulnerabilities Of The Official Legal Regimen For Intercountry Adoption, David M. Smolin

David M. Smolin

Amidst controversy, a legal regimen for intercountry adoption (ICA) has been developed over the past twenty-five years. The primary constituent parts are the 1989 UN-based Convention on the Rights of the Child (“CRC”) and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). Since the creation of those conventions, international and national legal efforts have focused on delineation and implementation of a set of standards based on their principles in the attempt to create a stable and reliable intercountry adoption system. This project of the creation of a stable and reliable intercountry …

Legal Education As A Rule Of Law Strategy: Problems And Opportunities With U.S.-Based Programs, David Pimentel

David Pimentel

Education can be powerful force in building the rule of law in developing countries and transitional states—especially in light of its power to influence culture and its ability to sustain meaningful change. Building a more effective system of legal education is a long term project, however, and a difficult sell given the way rule of law reform gets funded. Shorter term impacts are possible, however, through U.S.-based educational opportunities, which therefore present a compelling opportunity for rule of law promotion. Addressing short-term legal education deficiencies with U.S.-based education can contribute to a vision for the future of legal education in …

Studying Is Dangerous? Possible Federal Remedies For Study Abroad Liability, Robert J. Aalberts, Chad G. Marzen, Darren A. Prum

Chad G. Marzen

Every year, thousands of U.S. students study abroad for academic credit. Study abroad programs have traditionally garnered strong congressional support, and proponents of the programs emphasize the educational, cultural, and diplomatic benefits from study abroad experiences.

Despite the many benefits of study abroad programs, risks are incurred overseas. In the past several years, a number of incidents have resulted in which students studying abroad have not only incurred physical harm, but in some instances have died while enrolled in a study abroad program. The current liability standards governing study abroad programs are murky. This article not only discusses the various …

Demanding Individual Rights And Civil Liberties: An Iranian Approach, Zahra Takhshid

Zahra Takhshid

Iran has a long history of social movements and revolutions. The 1906 Constitutional Revolution led to the recognition of individual rights as part of Iran’s first Constitution. With the Islamic Revolution of 1979, a new constitution was enacted, which devoted one chapter to “the Rights of the Nation.”

The Constitution has introduced several methods to protect the recognized rights: the Guardian Council, the Tribunal of Administrative Justice, and the Commission of Article 90.

In addition to the institutions introduced in the Constitution, the Legislature and the Executive branch proposed new safeguarding procedures and adopted new statutes, which recognized broader range …

Global Economic Inequality And The Potential For Global Democracy: A Functionalist Analysis, Andrew Strauss

Andrew L. Strauss

No abstract provided.

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …

The Process Of International Law-Making: The Relationship Between The International Court Of Justice And The International Law Commission, Marija Dordeska

Dr Marija Dordeska

Political Community In Carl Schmitt's International Legal Thinking, Markus Gunneflo

Markus Gunneflo