Law Commons^™

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …

Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the …

Conditions In U.S. Treaty Practice: New Data And Insights Into A Growing Phenomenon, Cindy G. Buys

Cindy G. Buys

The U.S. Senate often adds various types of conditions, also known as reservations, understandings, and declarations, to its advice and consent to multilateral treaties. The ability to add conditions to a treaty likely increases the number of States willing to join a treaty because it allows States to modify their treaty obligations to address domestic concerns. However, the use of conditions also has the potential to undermine the integrity of the treaty by allowing States to opt out of important legal obligations and to create legal uncertainty regarding treaty obligations and relationships. This article examines U.S. treaty practice with respect …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Tpp And Trans-Pacific Perplexities, Peter K. Yu

Peter K. Yu

No abstract provided.

Women's Reproductive Rights Advanced At Conference, Gabriel Eckstein

Gabriel Eckstein

No abstract provided.

Gender-Based Criteria For Asylum, Gabriel Eckstein, Gregg Epstein

Gabriel Eckstein

No abstract provided.

Protected Speech Or Unlawful Incitement: An Israeli Perspective, Gabriel Eckstein

Gabriel Eckstein

No abstract provided.

Commission Special Rapporteur Grossman Investigates Women's Rights, Gabriel Eckstein

Gabriel Eckstein

No abstract provided.

The Quandary Of Economic Sanctions, Gabriel Eckstein

Gabriel Eckstein

No abstract provided.

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Gabriel Eckstein

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …

A Hydrogeological Approach To The Status Of Transboundary Ground Water Resources Under International Law [Abstract], Gabriel Eckstein, Yoram Eckstein

Gabriel Eckstein

2 pages. Contains footnotes.

Human Rights Environmentalism: Forging Common Ground, Gabriel Eckstein, Miriam Gitlin

Gabriel Eckstein

Since the early 1970s, the international community has widely acknowledged the nexus between human rights and environmental protection. References to this association and even to a human right to some minimal quality of environment, can be found in numerous international instruments. The Stockholm Declaration on the Human Environment, for example, proclaims that human beings have the "fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being." Similarly, the Additional Protocol to the American Convention on Human Rights states that "everyone shall have the right to live …

Water Scarcity, Conflict, And Security In A Climate Change World: Challenges And Opportunities For International Law And Policy, Gabriel Eckstein

Gabriel Eckstein

Although climate change is expected to have major consequences that affect the global environment in its broadest sense, one of the earliest and most direct impacts will be on Earth’s fresh water systems. While some regions will experience increased precipitation, others will suffer serious scarcity. Among others, consequences are likely to include severe flooding, extreme droughts, and meandering border-rivers. This, in turn, will affect human migration patterns, population growths, agricultural activities, economic development, and the environment. This article explores the impact that climate change will have on regional and global freshwater resources and the resulting legal and policy implications that …

Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein

Gabriel Eckstein

Despite more than forty years of promises to the contrary, neither Mexico nor the United States have shown any inclination to pursue a border-wide pact to coordinate management of the border region’s transboundary ground water resources. As a result, these critical resources – which serve as the sole or primary source of fresh water for most border communities on both sides – are being overexploited and polluted, leaving the local population with little recourse. Imminently unsustainable, the situation portends a grim future for the region. In the absence of national governmental interests and involvement on either side of the frontier, …

Application Of International Water Law To Transboundary Groundwater Resources, And The Slovak-Hungarian Dispute Over Gabcikovo-Nagymaros, Gabriel Eckstein

Gabriel Eckstein

The growth in global population and economic development has resulted in tremendous pressures on existing sources of fresh water. Human water use over the past three centuries increased by a factor of thirty-five and is growing by four to eight percent annually. Coupled with recurring international disputes over water resources, poor water management, and the realization that water is an indispensable but finite resource, these trends have propelled the use and management of transboundary groundwater resources to the forefront of legal debate.

Until recently, matters relating to groundwater resources were relatively ignored in the context of international law applicable to …

Protecting A Hidden Treasure: The U.N. International Law Commission And The International Law Of Transboundary Ground Water Resources, Gabriel E. Eckstein

Gabriel Eckstein

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Given the world's considerable reliance on this precious resource, it is reasonable to assume that international attention to, and especially legal consideration of, ground water would be substantial. Nothing is further from the truth. Despite the growing dependence, legal and regulatory attention to ground water resources have long been secondary to surface water, especially among legislatures and policymakers and above all in the international …

A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein

Gabriel Eckstein

When the U.N. General Assembly adopted the Convention on the Non-Navigational Uses of International Watercourses in 1997, it took a decisive step in recognizing the important role that transboundary ground water resources play in human progress and development. In so doing, it also acknowledged the need to establish principles of law governing this "invisible" but valuable natural resource. Transboundary ground water historically has been neglected in treaties, ignored in projects with international implications, and cursorily misunderstood in much of legal discourse. While the Convention provides substantial clarification on the status of ground water under international law, it also leaves considerable …

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Gabriel Eckstein

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

A Hydrogeological Approach To Transboundary Ground Water Resources And International Law, Gabriel Eckstein, Yoram Eckstein

Gabriel Eckstein

Ground water resources have long been the neglected stepchild of water law. While agreements focusing on transboundary rivers and lakes have been relatively common, there is a paucity of treaties and international norms squarely addressing shared ground water resources. As a result, the rules governing the use, management, and conservation of transboundary ground waters is unclear at best.

This dearth is, in large part, the result of a deficit of scientific understanding among legislators, policymakers, and the judiciary. This is evidenced in many international and domestic laws and policies that have little or no scientific underpinning. Accordingly, there is a …

Examples Of The Political Character Of International Water Law, Gabriel E. Eckstein

Gabriel Eckstein

It is widely known that over a billion people lack access to potable water, and well over twice that number are without adequate sanitation'-the latter situation often being related to the former. It has been calculated that every eight seconds a child dies of water-related causes-a stunning statistic and an absolutely unacceptable state of affairs.

While much has been made of the prospect of global water shortages, what is perhaps not so well known is that most of the world's fresh water is shared by two or more states. There are more than 260 international drainage basins, which account for …

The Impact Of Interior Immigration Enforcement On Mixed-Citizenship Families, Michael J. Sullivan, Roger Enriquez Sr.

Roger Enriquez Sr.

In this article, we trace the expansion of interior immigration enforcement measures since the 1990s, focusing on the period after the creation of the U.S. Department of Homeland Security (DHS) in 2003. We consider the rationale for escalation of enforcement and its expansion to include local and state law enforcement agencies during this period. We will examine who benefits economically and politically, detailing the role of local jails, private corrections corporations, and the communities that are financially dependent on the prisons industry. Throughout, we consider how the expansion of immigration enforcement has affected U.S. citizen children and spouses of unauthorized …

Taking Stock Of The Responsibility To Protect, Saira Mohamed

Saira Mohamed

The article presents information on the role of the organs of the United Nations, the civil society groups and the head of the states in the responsibility to protect under the international law and the protection of the human rights. The international community steps in of the state fails in the responsibility to protect the citizens. Information on the decision of the Security Council of the United Nations regarding the issue in Libya is also presented.

Restructuring The Debate On Unauthorized Humanitarian Intervention, Saira Mohamed

Saira Mohamed

No abstract provided.

Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros

N. Micheli Quadros

The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.

Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …

Impaled On Morton's Fork: Kosovo, Crimea, And The Sui Generis Circumstance, Christopher Rossi

christopher robert rossi

Abstract: This Article investigates the problematic invocation of unique circumstances as a justification for circumventing the international law relating to use of force and state secession. Borrowing from the teachings of critical sociology, this Article addresses the lessons of NATO’s 1999 intervention in Kosovo and Kosovo’s 2008 declaration of independence from Serbia; it adapts those teachings to Russia’s 2014 annexation of Crimea. Doctrinal, state-sponsored, and international juridical attempts to conform the Kosovo events to the international rule of law mask internal and unreconciled tensions within the Charter system. These tensions, which threaten to further weaken the system and expose it …

Kashmir, India, Pakistan And The United Sttes: A Clarification Of Legal-Policy Interests Of Concerned States, Winston Nagan

Winston P Nagan

This article covers the relevant legal history of Kashmir before asssession to India. It covers in detail the specific issue of transfer of Kashmir to India and its legality in colonial law and the importance of colonial boundary legality for modern international law. The article then explores the emergence of sectarian conflict in the context of the global nation state system and the importance of the Uti Possidetis doctrine relating to the stability of boundaries in international law. The article further explores issues of international security relating to Kashmir as well as U.S. policy relating to India, Pakistan and Kashmir. …

Globalization And Structure, Julian Ku, John Yoo

John C Yoo

No abstract provided.

Against Foreign Law, Robert J. Delahunty, John Yoo

John C Yoo

The article looks at the practice of several U.S. Supreme Court justices who have considered the decisions of foreign and international courts for guidance in interpreting the U.S. constitution. This practice has occurred in several controversial, high profile cases. There are two main reasons to think that use of foreign or international decisions extends beyond mere ornamentation.

The Status Of Soldiers And Terrorists Under The Geneva Conventions, John C. Yoo

John C Yoo

Outlines the legal case for denying Geneva Convention protection to Taliban and al Qaeda detainees in the U.S. Difference between U.S. policy towards Iraq detainees and the policy towards Taliban and al Qaeda; Impact of the Geneva Convention on the U.S. goal of effective acquisition of intelligence from the interrogation of detainees; Incentives and disincentives of the enforcement of international law; Comparison of the legal rights of members of al Qaeda and the Taliban militias from professional soldiers; Customary laws governing war combatants and civilians.