Law Commons^™

The Roles Of Precaution And Political Accountability In The Regulation Of Polybrominated Diphenyl Ethers, Danielle Brim

Vanderbilt Journal of Transnational Law

The differing approaches used in the United States and the European Union to regulate toxic chemicals have been highlighted by debates about a group of chemicals called polybrominated diphenyl ethers, or PBDEs. PBDEs act as flame-retardants and are added to consumer products to increase their safety. Questions about the continued use of PBDEs have been raised, however, because of concerns that PBDEs may be dangerous to human health and the environment. The European Union has decided to ban two types of PBDEs, while the United States has not issued similar restrictions. In this Note, the Author argues that neither decision …

Historical And Social Perspectives On The Regulation Of The International Trade In Archaeological Objects: The Examples Of Greece And India, Neil Brodie

Vanderbilt Journal of Transnational Law

Two empirical studies of the trade in cultural material have shown that strong export controls work. Between 1820 and 1870, pre-unification Italian states with strong export controls in place retained more of their cultural heritage (measured in terms of paintings and antique books) than states with weak or no controls. Thefts from cultural institutions in the Czech Republic rose sharply after 1989, the year the "Iron Curtain" was raised; though this example also highlights the curtailment of civil liberties that might be necessary for strong export controls to work and that are probably unacceptable in a liberal society. '

This …

Examining South Africa's National Rape Crisis And Its Legislative Attempt To Protect Its Most Vulnerable Citizens, Ashley J. Moore

Vanderbilt Journal of Transnational Law

With the demise of apartheid, South Africans eagerly anticipated the freedom from bondage that liberation brings. More than ten years later, however, remnants of the inhumane system still remain throughout South Africa, with the epidemic rape crisis that currently grips the African nation providing dramatic evidence of the continued hold of apartheid. Scores of South Africa's women and young children must contend with the pervasive sexual violence that permeates the country. These would-be victims live in constant fear of physical attack, while advocates await the South African government's response to this national crisis. Unfortunately, legislation that would dramatically change South …

Interim Measures In International Human Rights: Evolution And Harmonization, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

In this Article, the Author undertakes a comprehensive study of interim measures ordered in human rights cases before six international enforcement bodies--the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. An order of interim measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying …

Free Trade And Illegal Drugs: Will Nafta Transform The United States Into The Netherlands?, Taylor W. French

Vanderbilt Journal of Transnational Law

In the postwar era, the United States typically has taken an approach to dealing with illegal drugs different from Europe. Americans have favored prohibitionist measures to combat drug use, while Europeans have gradually relaxed many of their illicit substance laws. Recently, however, there has been a growing movement within the United States to decriminalize and legalize marijuana. Numerous states have already reformed their laws to allow doctors to prescribe marijuana to patients. Moreover, many states are dramatically decriminalizing personal use of cannabis.

A review of postwar Europe's experience with drugs provides a useful paradigm to explain the U.S.'s shifting attitude. …

Subjects Of International Law: A Power-Based Analysis, Guido Acquaviva

Vanderbilt Journal of Transnational Law

In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of …

Rethinking Multinational Corporate Governance In Extractive Industries, Matthew Nick

Vanderbilt Journal of Transnational Law

The oil and natural gas reserves under the Caspian Sea have sparked the interest of international investors and oil firms. The political, economic, and social turmoil in the five countries bordering the Caspian Sea, however, pose significant challenges for effective regulation of multinational interaction with the five Caspian states. A joint-effort approach to regulation involving the World Bank, multinational enterprises, and the individual Caspian states' governments poses the most functional and efficient means of instituting international oversight. Such a tripartite structure connects the fortunes of all the parties and provides safeguards against default by any single entity. A mutually beneficial …

Globalization In Art Law: Clash Of Interests And International Tendencies, Erik Jayme

Vanderbilt Journal of Transnational Law

In my view, it is important to articulate the different interests involved in international art cases. Globalization has added the interests of the global civil society to the traditional claims and counter claims of private parties and of states or nations. Thus, public access to art works has been fostered by anti-seizure statutes protecting international exhibitions. And, it is this line of tendencies and arguments which conceives of famous art works as treasures of mankind and which should prevail in the future.

Globalization And National Culture: Recent Trends Toward A Liberal Exchange Of Cultural Objects, Kurt G. Siehr

Vanderbilt Journal of Transnational Law

In discussing trends toward liberal exchange of cultural objects, it must be stressed that the exchange should be a legal exchange. This, however, is not easy to define because legal systems differ with respect to the qualifications of legality of art trade. Since United States v. Schultz, there is less of a disparity between Europe and the United States as to the characterization of illegal excavations as a kind of theft in countries claiming that archaeological finds are state property. Also, with respect to export prohibitions, there is not much disagreement so far: in all countries, foreign export prohibitions are …

From The Ali To The Ili: The Efforts To Export An American Legal Institution, Jayanth K. Krishnan

Vanderbilt Journal of Transnational Law

In this Article, the Author argues that those who believe that Americans can successfully export their visions of law and legal research to other countries need to consider--in addition to Japan and Germany, two countries that are often touted as exemplars--the case of India. India gained its independence from the British in 1947, and soon thereafter many U.S. experts traveled to India in an effort to foster a culture of Western legal intellectualism. As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of a national Indian …

Preventing Repeat Offenders: North Korea's Withdrawal And The Need For Revisions To The Nuclear Non-Proliferation Treaty, Raven Winters

Vanderbilt Journal of Transnational Law

The Nuclear Non-Proliferation Treaty (NPT) took effect on March 5, 1970, with the following purposes: to prevent the proliferation of nuclear arms, promote nuclear disarmament, and encourage the peaceful use of nuclear energy. Even though the NPT was initially intended as a temporary solution to the threat of nuclear weapons, in 1995 the parties to the NPT voted to extend it indefinitely. For the most part, the NPT has been successful in achieving its goals. Recent challenges to the NPT, however--namely North Korea's withdrawal from the NPT in January 2003--have revealed several weaknesses inherent in the NPT. To strengthen the …

Communication Breakdown?: The Future Of Global Connectivity After The Privatization Of Intelsat, Kenneth Katkin

Vanderbilt Journal of Transnational Law

In 1971, eighty-five nations (including the United States) formed the International Telecommunications Satellite Organization (INTELSAT), a public intergovernmental treaty organization. INTELSAT was charged with operating the world's first global telecommunications satellite system, to guarantee the interconnectedness of the world's communications systems and the availability of international telecommunications service to every nation on earth. By the late 1980s, however, INTELSAT's operations began to experience substantial competition from the private sector. In 2000, the proliferation of privately-owned telecommunications satellites and transoceanic fiber-optic cables led the U.S. Congress to mandate the privatization of INTELSAT. That privatization process began in 2001, and was substantially …

The Choice Between Civil And Criminal Remedies In Stolen Art Litigation, Jennifer A. Kreder

Vanderbilt Journal of Transnational Law

This Article analyzes the patchwork of legal remedies available to persons claiming ownership of Nazi-looted art. This Article demonstrates that the use of the NSPA via criminal prosecutions or civil forfeiture proceedings provides a claimant with great advantages over the present-day possessors of the art. Part II analyzes the criminal remedies used to punish thieves and restore the art to its original owners or their heirs. Part III analyzes the use of the civil forfeiture mechanism--a hybrid of criminal and civil remedies--in pursuit of restoring art to claimants.

Part IV concludes that criminal prosecutions or civil forfeiture proceedings premised on …

Reflections On Litigating Holocaust Stolen Art Cases, Donald S. Burris, E. R. Schoenberg

Vanderbilt Journal of Transnational Law

In this Article we have attempted to provide an overview of the Nazi-looted art cases in their historical context. We have based the discussion on our knowledge and experience in litigating art law cases, particularly cases involving Nazi art looting, post-war restitution, and recent developments in art law.

Any discussion of the legal implications of crimes committed by Nazi authorities during the Holocaust must begin with an obvious disclaimer. While bringing cases to recover artwork stolen by Nazi authorities is self-evidently a worthy pursuit, and while our firm is very proud to be intensively involved in this effort, we cannot …

A Choice-Of-Law Rule For Conflicts Involving Stolen Cultural Property, Symeon C. Symeonides

Vanderbilt Journal of Transnational Law

Combating illicit trade in stolen cultural property is and will continue to be a serious problem. Of all the measures that various states can take in combating this trade, the adoption of a choice-of-law rule would rank very low in importance and effectiveness. Even if one thinks only in terms of legal rules, there is little question that international conventions and agreements, criminal and other public-law statutes, and uniform substantive rules would be far more direct and effective than choice-of-law rules. At the same time, these other rules are much more difficult to adopt precisely because they presuppose a degree …

Human Rights And Bioethics: Formulating A Universal Right To Health, Health Care, Or Health Protection?, George P. Smith, Ii

Vanderbilt Journal of Transnational Law

Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks--foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization.

Although advanced--and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics--attainment of such a universal right to …

Tort Au Canadien: A Proposal For Canadian Tort Legislation On Gross Violations Of International Human Rights And Humanitarian Law, Caroline Davidson

Vanderbilt Journal of Transnational Law

Despite Canada's strong rhetoric on the protection of human rights, Canada lacks a meaningful tort scheme for gross human rights violations akin to that of the United States. This Article argues that legislation to facilitate tort suits for gross violations of international human rights and humanitarian law can be consistent with, and in fact supports, Canada's commitments to human rights, the rule of law and multilateralism. In particular, provincial tort legislation should be one of a panoply of mechanisms in place to punish and deter violations of international humanitarian and human rights law. This Article proposes the shape of the …

A New Approach To Corporate Choice Of Law, Jens Dammann

Vanderbilt Journal of Transnational Law

The state of incorporation doctrine, which now applies both in the United States and in the European Community, allows corporations to choose the state law governing their internal affairs by incorporating in the appropriate state. Most scholars believe that this freedom to choose benefits both shareholders and society as a whole. Against this background, an obvious question is whether the state of incorporation doctrine is really the most efficient way of granting corporations the right to choose. In this Article, the Author argues that while there are sound reasons for retaining the state of incorporation doctrine as one mechanism for …

Improving The Appellate Process Worldwide Through Maximizing Judicial Resources, Honorable J. Clifford Wallace

Vanderbilt Journal of Transnational Law

As the number of cases filed each year has surged, U.S. federal appellate courts have evolved in order to fulfill their core functions of deciding appeals and setting guiding precedent. Many of the challenges created by overwhelming caseloads are also being tackled in foreign judicial systems. In this Article, Judge Wallace offers the approach of the United States Court of Appeals for the Ninth Circuit as a possible model of reform, although he also points out that each judiciary will need to tailor reform efforts to its particular circumstances. In Part II, Judge Wallace details several of the case management …

Law And Development As Democratic Practice, Thomas F. Mcinerney

Vanderbilt Journal of Transnational Law

The importance of law and institutions to development is now widely recognized. Significant amounts of development assistance now target legal and institutional reform. These efforts have generally viewed legal and institutional reform as technical matters. Designing laws and institutions appropriate to local circumstances has been seen as primarily requiring the application of competent expertise. Yet practitioners in this field may gain a different perspective. Reforms that on paper seem wise may not get implemented, and those that are implemented may not achieve their intended aims. In this Article, the Author contends that one reason for this outcome is the failure …

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I, Rachel Vorspan

Vanderbilt Journal of Transnational Law

In this-Article Professor Vorspan examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on detention, deportation, conscription, and confiscation of property, the Author revises the conventional depiction of the English judiciary during World War I as passive and peripheral. She argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal freedom. Second, they …

The Importation Of Sexism: A Cost-Benefit Approach To The U.S.-South Korea Friendship, Commerce And Navigation Treaty, Jennifer D. Fease

Vanderbilt Journal of Transnational Law

The U.S.-South Korea Friendship, Commerce and Navigation Treaty was entered into by the signatory countries following World War II and governs the actions of corporations operating in a foreign country. One provision of the Treaty allows foreign corporations in the United States to choose executives "of their choice," arguably without regard to the statutory protections that the United States affords in the hiring process. In this Note, the Author contends that the U.S.-South Korea Friendship, Commerce and Navigation Treaty results in discrimination against women in the United States because South Korean employers tend to choose South Korean men to fill …

Enlisting The U.S. Courts In A New Front, Debra M. Strauss

Vanderbilt Journal of Transnational Law

The time has come to extend the national approach that has been used successfully to dismantle the infrastructure of hate groups to the international realm against terrorist groups. The foundation of this approach is a private right to a cause of action apart from any military or diplomatic efforts by the government. In this Article, Professor Strauss analyzes case precedents under several federal statutes--the Antiterrorism Act of 1991, the Antiterrorism and Effective Death Penalty Act of 1996, the Torture Victim Protection Act, the Alien Tort Claim Act--as well as state common-law tort claims, including aiding and abetting liability. Professor Strauss …

Banned And Enforced: The Immediate Answer To A Problem Without An Immediate Solution, Alison W. Manhoff

Vanderbilt Journal of Transnational Law

India has banned the use of ultrasound technology to determine the sex of a fetus for more than a decade. Despite this ban, India's 2001 census showed that for every one thousand boys under the age of six there are only 927 girls. There is speculation that this striking gender imbalance is largely the result of the abortion of fetuses discovered to be female after a sex determination ultrasound or amniocentesis procedure. Traditionally, the desire not to have a female child is viewed as a consequence of the dowry system that is prevalent in India. Commentators often propose efforts to …

Immunity For Artworks On Loan? A Review Of International Customary Law And Municipal Anti-Seizure Statutes In Light Of The "Liechtenstein" Litigation, Matthias Weller

Vanderbilt Journal of Transnational Law

Are we witnessing the emergence of a legal principle of immunity for artworks on loan from abroad? This Article analyzes to what extent such a principle exists or is about to come into being and what its legal potential might be. To this end, Part II examines one of the leading cases about artworks on loan, the Liechtenstein case, and compares it to other controversies about loaned artworks to identify possible signs of a development in court practice towards a principle of immunity for artworks on loan. Against the background of the legal weaknesses of a yet inchoate concept of …

Imaginatively Public: The English Experience Of Art As Heritage Property, Joseph L. Sax

Vanderbilt Journal of Transnational Law

England was once hugely prosperous and possessed an extraordinary share of the world's great art. In the years following the French Revolution, political turmoil in Europe brought a number of superb works of art on the market, and English collectors avidly bought them. Even earlier, young aristocrats returned to England from their grand tours with a keen appreciation of the aesthetic achievements of the continent and the means to acquire any works that pleased them.

With few exceptions, these treasures entered the collections of individuals as their private property. In its scope, this was a unique experience in privatization, unlike …

Implementing The U.N. Convention On The Rights Of The Child, Lauren M. Spitz

Vanderbilt Journal of Transnational Law

The United Nations Convention on the Rights of the Child, adopted by the General Assembly on November 20, 1989, articulates a comprehensive scheme of rights specifically tailored to children. International recognition of children's rights is only the first step, however. The effectiveness of the Convention on the Rights of the Child depends on the signatories' efforts to comply with its provisions and to incorporate children's rights into existing schemes of established rights. The 1996 Constitution of the Republic of South Africa includes specific rights for children resembling those articulated in the Convention on the Rights of the Child. Although South …

International Legal Dimensions Of Art And Cultural Property, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

The market for art and cultural property is international.' Demand is intense and not particularly local in terms of consumer preference. Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there...

The symposium's contributors have sought to address the complex legal and policy issues raised by an explosive global market in art and cultural property. These articles will prove invaluable in the shaping of the international legal response to …

The International Law Of Environmental Warfare: Active And Passive Damage During Armed Conflict, Eric T. Jensen

Vanderbilt Journal of Transnational Law

One of the constant elements of warfare is its degrading effects on the environment. Many writers blame this destruction of the environment on inadequate standards in the international law of environmental warfare. To remedy this shortfall, the international law of environmental warfare should be categorized as either passive or active environmental warfare. Active environmental warfare requires the intentional "use" of the environment as a weapon of waging armed conflict. Passive environmental warfare includes acts not specifically designed to "use" the environment for a particular military purpose but that have a degrading effect on the environment. Passive environmental warfare violates international …

Why Environmental Liability Regimes In The United States, The European Community, And Japan Have Grown Synonymous With The Polluter Pays Principle, Eric T. Larson

Vanderbilt Journal of Transnational Law

Significant concern about the harm to the environment caused by the disposal of hazardous wastes and detrimental materials abounds. In response, regulators around the globe have struggled to develop environmental liability regimes that effectively remediate contaminated sites. Regulators in the United States, the European Community, and Japan have addressed environmental contamination concerns by adopting the polluter pays principle as a core component of their domestic environmental liability regimes. The polluter pays principle demands that the polluter bear the burden of remediating the waste it generates. The impetus for adoption of the polluter pays principle in the United States, the European …