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The Contribution Of The International Court Of Justice To The Development Of International Environmental Law: A Contemporary Assessment, Dr. Jorge E. Viñuales
The Contribution Of The International Court Of Justice To The Development Of International Environmental Law: A Contemporary Assessment, Dr. Jorge E. Viñuales
Fordham International Law Journal
The article provides a detailed and up-to-date assessment of the contribution of the International Court of Justice (ICJ) to the development of International Environmental Law (IEL), including the potential in this respect of the cases currently pending before the Court. The author argues that the ICJ's contribution to IEL can be organized in two main waves of cases. The legacy of the first wave, which covered essentially the Corfu Channel and the Nuclear Tests cases, as well as an important obiter dictum made in the Barcelona Traction case, was the confirmation of previous case-law on transboundary damages as well as …
Soft Law As Delegation, Timothy Meyer
Soft Law As Delegation, Timothy Meyer
Fordham International Law Journal
This article examines one of the most important trends in international legal governance since the end of the Cold War: the rise of “soft law,” or legally non-binding instruments that are given legal effect through domestic law or internationally binding agreements such as treaties. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as …
The Nexus Of Public And Private In Foreign Direct Investment: An Analysis Of Ifc, Miga, And Opic, Adam L. Masser
The Nexus Of Public And Private In Foreign Direct Investment: An Analysis Of Ifc, Miga, And Opic, Adam L. Masser
Fordham International Law Journal
This Report will provide an exposition of the most recent activities of three of the most important public supporters of foreign direct investment ("FDI"): the International Finance Corporation ("IFC"), the Multilateral Investment Guarantee Agency ("MIGA"), and the Overseas Private Investment Corporation ("OPIC"), with a focus on their regional and sectoral investment patterns. While not a panacea to the incredible challenges in achieving reductions in poverty, FDI is an essential element in the overall strategy to ensure successful, sustainable development. It is also an element that, especially in the least developed countries ("LDCs"), has suffered from consistent underperformance. Part I will …
The Distinct Cases Of Kosovo And South Ossetia: Deciding The Question Of Independence On The Merits And International Law, Ronald Thomas
The Distinct Cases Of Kosovo And South Ossetia: Deciding The Question Of Independence On The Merits And International Law, Ronald Thomas
Fordham International Law Journal
The cases of Kosovo and South Ossetia provide two opportunities for the community of nations to reconcile the rights of Serbia and Georgia with the rights of the peoples within their borders. Instead of doing so, other countries used these cases for ideological and political posturing and continued to do so as of the end of 2008. This Note will review Kosovo and South Ossetia and attempt to take the politics out of an inherently political decision-whether or not to recognize them as independent states. Part I of this Note will review how the United Nations has approached the issues …
Taking Shots At Private Military Firms: International Law Misses Its Mark (Again), Kevin H. Govern, Eric C. Bales
Taking Shots At Private Military Firms: International Law Misses Its Mark (Again), Kevin H. Govern, Eric C. Bales
Fordham International Law Journal
Part I of this Article takes a brief tour through military history on the consistent use of mercenaries through the ages, which Peter Singer illuminates masterfully in Corporate Warriors. Next, a brief overview on the binding nature (or not) of international custom and treaty is explored in Part II and then the codifications of international law are taken up in Part III, beginning with the Hague and Geneva Conventions. Several United Nations (“U.N.”) instruments are analyzed for their efficacy in changing the long-standing customary international law on the use of mercenaries and whether or not each is applicable to PMF …
"More Adversarial, But Not Completely Adversarial": Reformasi Of The Indonesian Criminal Procedure Code, Robert R. Strang
"More Adversarial, But Not Completely Adversarial": Reformasi Of The Indonesian Criminal Procedure Code, Robert R. Strang
Fordham International Law Journal
This Article provides a perspective not normally available to U.S. legal scholars in the area of comparative law -- it is a firsthand account of criminal procedure reform in the Republic of Indonesia. Indonesia, the world’s fourth largest country by population and the largest civil law jurisdiction, has embarked on sweeping legal, political, and institutional reform in the ten years since the collapse of authoritarian rule. Half way around the world from the U.S., Indonesia is virtually unknown to Western legal scholars, yet the changes being made in Indonesian criminal procedure are fundamental: establishing a suspect’s right to remain silent; …
Silencing The Ethiopian Courts: Non-Judicial Constitutional Review And Its Impact On Human Rights, Chi Mgbako, Sarah Braasch, Aron Degol, Melisa Morgan, Felice Segura, Teramed Tezera
Silencing The Ethiopian Courts: Non-Judicial Constitutional Review And Its Impact On Human Rights, Chi Mgbako, Sarah Braasch, Aron Degol, Melisa Morgan, Felice Segura, Teramed Tezera
Fordham International Law Journal
Part I traces the evolution of Ethiopia's constitutional human rights guarantees in each of the country's constitutional manifestations from the period of Emperor Haile Selassie's reign to the present. Part II explores the status of fundamental rights and freedoms in Ethiopia's 1995 FDRE Constitution. Part III describes the players and processes of Ethiopia's complex system of non-judicial constitutional review, including the dominant role played by the HOF and Council of Constitutional Inquiry and the marginalized role of the courts. Part IV presents a comparative analysis of countries engaged in non-judicial constitutional review, including China, the former Soviet Union, and Finland. …
The European Union And New Leading Powers: Towards Partnership In Strategic Trade Policy Areas, Dr. Rafael Leal-Arcas
The European Union And New Leading Powers: Towards Partnership In Strategic Trade Policy Areas, Dr. Rafael Leal-Arcas
Fordham International Law Journal
This Article aims at understanding the potential of partnerships of the European Union (‘EU‘) with emergent global actors (the so-called new leading powers (‘NLPs‘) or ‘BRIC countries‘), focusing on international trade law and policy. Although the power base of these actors (Brazil, Russia, India, and China--the BRIC countries) is their respective region (South America for the case of Brazil, Eastern Europe for Russia, the Subcontinent for India, and the Far East for China), there may be specific policy areas in which their influence might be global. With this in mind, the Article raises interesting questions: Is the EU an attractive …
The Limitation Of Intellectual Property In The Name Of Competition, Paul Nihoul
The Limitation Of Intellectual Property In The Name Of Competition, Paul Nihoul
Fordham International Law Journal
Intellectual property (“IP”) is often credited with providing an incentive for inventors to develop their creativity. Through IP protection, inventors can recoup their investment and make a profit. That idea, which has inspired legislators worldwide, is currently challenged in the European case law on competition. In the last twenty years, five cases have limited, in the name of competition, the possibility for firms to use IP rights acquired in conformity with applicable laws. These cases are examined in this article. I analyze the scope of the emerging jurisprudence and investigate the arguments articulated, in support of their position, by the …
Gendercide And The Cultural Context Of Sex Trafficking In China, Susan Tiefenbrun, Christie J, Edwards
Gendercide And The Cultural Context Of Sex Trafficking In China, Susan Tiefenbrun, Christie J, Edwards
Fordham International Law Journal
This paper discusses the interconnection of historic, legal, and cultural contexts that result in the perpetuation of discrimination against women in Chinese society. The contextual analysis attempts to explain the causes for an increase in trafficking of women and the deplorable human rights violations perpetrated upon women in China today. The remedies to eliminate trafficking proposed in this paper are not easily implemented. The OCP must be revised to provide more incentives to rational family planning rather than harsh punishments and coercion. China needs to reverse a long-standing cultural tradition of male son preference and discrimination against women. We know …
Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks
Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks
Fordham International Law Journal
This Article examines treaty body compliance discourse through an examination of the CEDAW Committee's jurisprudence related to sub-Saharan Africa. Drawing on the constructivist literature and the sociological framing literature, Part I of this article introduces adoption and adaptation as key features for domestically enforcing treaty obligations. Part I also introduces the CEDAW Committee compliance discourse framework. Through the issue of married women's property rights in Rwanda and Uganda, Part II demonstrates the challenges of implementing the adoption and adaptation process with a circumscribed collaboration approach. Drawing on the constructivist and sociological insights regarding the adoption and adaptation process Part III …
Russia's Labor Pains: The Slow Creation Of A Culture Of Enforcement, Katerina P. Lewinbuk
Russia's Labor Pains: The Slow Creation Of A Culture Of Enforcement, Katerina P. Lewinbuk
Fordham International Law Journal
This Article offers a general examination and analysis of Russian labor law, including its historic origin and current status, and it also examines the existing enforcement mechanisms for its provisions. It also provides a comparison of Russian labor law and enforcement to the labor regulations and enforcement in four other countries: the United States of America, the United Kingdom, Australia, and Mexico. The Article concludes that Russia's failure to comply with and enforce its labor regulations is deeply rooted in the culture's historic distrust and disrespect for the law that was typical during Soviet times and continues into the current …
Regulation Of Civil Society In China: Necessary Changes After The Olympic Games And The Sichuan Earthquake, Karla W. Simon
Regulation Of Civil Society In China: Necessary Changes After The Olympic Games And The Sichuan Earthquake, Karla W. Simon
Fordham International Law Journal
This Article will address the following topics with regard to the regulation of civil society in China: (1)Making the existing regulations for social organizations (shehui tuanti, “SOs”), nonprofit non-commercial entities (minban fei qiye danwe, “NCEs”),and foundations (jijin hui) more user-friendly, including making it possible for de facto networks that provide and coordinate disaster relief to be recognized, perhaps as semi-legal entities for a short period of time. The liberalization of the SO regulations should permit mutual benefit organizations to be established in order to fully implement the freedom of association guaranteed by Article 35 of the Chinese Constitution. (2) Making …
China's New Labor Contract Law And Protection Of Workers, Li Jing
China's New Labor Contract Law And Protection Of Workers, Li Jing
Fordham International Law Journal
This Comment will discuss the labor conditions in China that prompted many provisions in the recently enacted Labor Contract Law, and how the new law responds to deficiencies of China's Labor Law to address various labor problems. Part I of this Comment contains a brief presentation of the historical and economic background of the emergence of migrant workers. Part I also examines the causes of the main problems faced by migrant workers, in particular the insufficiencies of China's Labor Law in protecting migrant workers. Part II looks into the legislation's background and specific provisions of China's new Labor Contract Law …
Ethics In The Multijurisdictional Practice Of Admiralty Lawyers, Michael Marks Cohen
Ethics In The Multijurisdictional Practice Of Admiralty Lawyers, Michael Marks Cohen
Fordham International Law Journal
In June 2002 the Commission on Multijurisdictional Practice of the American Bar Association (“ABA”) issued a report which covered a wide range of subjects including state judicial regulation and discipline of lawyers, the special problems of large firms moving lawyers around to work in branch offices, the use of in-house counsel not licensed in the state where they work, the particular problems of federal government and military lawyers practicing as part of their official duties in states where they are not licensed, as well as model rules for admission to practice on motion, for licensing of foreign legal consultants, and …
Surrendering The Rule Of Law In Foreign Relations, Martin S. Flaherty
Surrendering The Rule Of Law In Foreign Relations, Martin S. Flaherty
Fordham International Law Journal
Foreign relations specialists for the most part agree on this much: Medellin v. Texas may prove to be the most important case in the field in recent memory—more than even the recent line of Guantanamo decisions, significant as the general public assumes these to be. Agreement fades, however, concerning exactly what Medellin’s importance will be. Does it signal a reversal of the doctrine that treaties are presumptively self-executing? Or does it (merely) suggest hostility toward domestic application of multi-lateral agreements, especially when they confer individual rights? Is the Court’s opinion driven by a salutary commitment to domestic democratic process in …
Ocean Carriers' Duty Of Care To Cargo In Port: The Rotterdam Rules Of 2009, Prof. Dr. David Morán Bovio
Ocean Carriers' Duty Of Care To Cargo In Port: The Rotterdam Rules Of 2009, Prof. Dr. David Morán Bovio
Fordham International Law Journal
On December 11, 2008, the General Assembly of the United Nations adopted General Assembly (“G.A.”) Resolution 10798, accepting a Convention prepared by the United Nations Commission on International Trade Law on “Contracts for the International Carriage of Goods Wholly or Partly by Sea,” in lieu of a diplomatic conference, and scheduled the convention to be signed, subject to subsequent ratification, on September 23,2009 at Rotterdam.10 The new Convention is designed to replace two earlier international conventions, popularly known as the Hague Rules of 1924 (“HR”), with the Visby Amendments of 1968, and the Hamburg Rules of 1978 (“HamR”), thus the …
Filling Some Of The Gaps: The International Law Association (American Branch) Law Of The Sea Definitions Project, George K. Walker
Filling Some Of The Gaps: The International Law Association (American Branch) Law Of The Sea Definitions Project, George K. Walker
Fordham International Law Journal
The Law of the Sea Committee (“LOS Committee” or “Committee”) of the International Law Association's American Branch (“ABILA”) will complete its project, Terms in the 1982 U.N. Convention on the Law of the Sea or in Convention Analysis that the Convention Does Not Define (“Report”), in 2009. If the U.S. Senate gives advice and consent, and President Barack Obama exchanges ratifications, the U.N. Convention on the Law of the Sea (“UNCLOS” or “Convention”) and its 1994 protocol will, belatedly in the view of many, become law for the United States, as they already are for much of the world. It …
An African Marshall Plan: Changing U.S. Policy To Promote The Rule Of Law And Prevent Mass Atrocity In The Democratic Republic Of The Congo, Gregory S. Gordon
An African Marshall Plan: Changing U.S. Policy To Promote The Rule Of Law And Prevent Mass Atrocity In The Democratic Republic Of The Congo, Gregory S. Gordon
Fordham International Law Journal
This Article discusses what the United States can do to promote the rule of law and human rights in DR Congo. This Article contends that U.S.-DR Congo policy has been formulated in dribs and drabs, limited in quantity relative to the enormity of the crisis, and without an overarching plan for promoting legal coherence and yielding long-term, systemic change. To be effective, U.S.-Congolese policy must be crafted and executed with a holistic approach-security, disarmament, infrastructure, food assistance, and health care must all undergird greater efforts to establish the rule of law. In effect, the United States must initiate an "African …
Gravity And The Legitimacy Of The International Criminal Court, Margaret M. Deguzman
Gravity And The Legitimacy Of The International Criminal Court, Margaret M. Deguzman
Fordham International Law Journal
References to gravity are threaded throughout the Rome Statute's provisions relating to jurisdiction and its exercise. These references reflect the drafters' philosophical vision for the Court, but fail to provide the institution with clear legal guidance. Part II begins by examining the relevant statutory provisions, exploring ambiguities in the text and suggesting how it should be interpreted. It then canvases the legislative history for indications of the drafters' intent and evaluates the approaches to gravity adopted thus far by the Court's judges and Prosecutor. The analysis in this Part demonstrates that gravity plays two essential and distinct roles for the …
"For These Reasons, The Chamber: Denies The Prosecutor's Request For Referral": The False Hope Of Rule 11 Bis, Amelia S. Canter
"For These Reasons, The Chamber: Denies The Prosecutor's Request For Referral": The False Hope Of Rule 11 Bis, Amelia S. Canter
Fordham International Law Journal
This Note will examine decisions from two of the potential transfer cases, Prosecutor v. Gaspard Kanyarukiga and Prosecutor v.YussufMunyakazi, and discuss their implications for the ICTR." Part I addresses the early history of the ICTR, including the initial criticisms leveled against it and its rocky relationship with Rwanda. It also examines the introduction of 11 bis and the changes made by Rwanda to come into compliance with the Rule's requirements. Part II discusses the referral decisions themselves. Finally, Part III assesses the different approaches taken by the two chambers within their respective denials. Through an examination of the reasons given …
"Back To The Future" - Reflections On The Beginning Of The Beginning: International Criminal Law In The Twenty-First Century, David M. Crane
"Back To The Future" - Reflections On The Beginning Of The Beginning: International Criminal Law In The Twenty-First Century, David M. Crane
Fordham International Law Journal
Part I begins by stating that though there has been atrocity throughout our history, certainly the last century has earned the title "the bloody century." The author then discusses the past conflicts that have earned that title for the last century. Next, the author acknowledges that in just ten years, the international community created the justice mechanisms to show that the rule of law is more powerful than the rule of the gun. In Part II, the author cites examples of what justice mechanisms have been implemented. Part III focuses on the challenges ahead for the international justice mechanisms. In …
Learning From Others: Sustaining The Internationalization And Globization Of U.S. Law School Curriculums, James R. Maxeiner
Learning From Others: Sustaining The Internationalization And Globization Of U.S. Law School Curriculums, James R. Maxeiner
Fordham International Law Journal
In 2007 Harvard Law School made "the most ambitions changes to the school's curriculum since Langdell." That change was the internationalization and globalization of its curriculum. Other law schools, such as Michigan, McGeorge and Georgetown, had already done that. But what is to assure that the recent trend toward internationalization will not be just another fad? This address, after summarizing current developments, provides an answer: learning from foreign law.
Indigenous Land Rights And The Declaration On The Rights Of Indigenous Peoples: Implications For Maori Land Claims In New Zealand, Sarah M. Stevenson
Indigenous Land Rights And The Declaration On The Rights Of Indigenous Peoples: Implications For Maori Land Claims In New Zealand, Sarah M. Stevenson
Fordham International Law Journal
This Comment argues that Maori land claims will be bolstered through the use of existing and emerging customary international law, including principles in the Declaration. Part I discusses land issues in New Zealand, beginning by providing an overview of developments since the signing of the Treaty of Waitangi (“Treaty”), the founding document of New Zealand. It then discusses Maori customary title, the foreshore and seabed controversy, and the first settlement under the F.S.A., and concludes with the reasons for New Zealand's vote against the Declaration. Part II reviews indigenous rights in international law and the role of international law in …
Fundamental Rights In The European Community Legal Order, John L. Murray
Fundamental Rights In The European Community Legal Order, John L. Murray
Fordham International Law Journal
The role of the courts in the protection of human rights in any legal system is a constitutionally sensitive one. The observance and protection of such rights articulate with many aspects of the exercise of governmental and legislative power. The value nature of human rights accentuates these sensibilities. Some have viewed sovereign law as an essential ingredient in the make-up of national identity, a perception which tends to confirm a presumption that legal systems, while responsive to new pressures, are nonetheless holistic, coherent, and state-bound. National law is a rampart against outside corruption of the national ethos. Inevitably all of …
Rule Of Law In Central And Eastern Europe, Frank Emmert
Rule Of Law In Central And Eastern Europe, Frank Emmert
Fordham International Law Journal
Pursuant to the same logic that prevailed when Jean Monnet and Robert Schuman reached out to Germany after the end of World War II, and in keeping with the promise made in the Preamble of the founding treaty, the EU now reached out to Central and Eastern Europe after the end of the Cold War and offered integration. In recognition of the difficulties for the EU on the one side of absorbing a large number of countries without jeopardizing the functioning of the institutions, and the difficulties for the Central and Eastern European Countries ("CEECs") on the other side of …
The European Union’S Shareholder Voting Rights Directive From An American Perspective: Some Comparisons And Observations, Arthur R. Pinto
The European Union’S Shareholder Voting Rights Directive From An American Perspective: Some Comparisons And Observations, Arthur R. Pinto
Fordham International Law Journal
The European Union (“EU”) has recently celebrated its 50th anniversary. This Article is based upon my presentation in the Symposium celebrating the anniversary held at Fordham Law School and sponsored by the Fordham International Law Journal. The Article will look at how the European Union has recently approached company law issues (usually referred to as corporate law in the United States) and particularly shareholder voting rights through the recent EU directive on the exercise of certain rights of shareholders in listed companies (“Voting Rights Directive” or “Directive”). My focus is on company law with regard to the corporate governance of …
Eu Law, International Law, And Economic Sanctions Against Terrorism: The Judiciary In Distress?, Takis Tridimas, Jose A. Gutierrez-Fons
Eu Law, International Law, And Economic Sanctions Against Terrorism: The Judiciary In Distress?, Takis Tridimas, Jose A. Gutierrez-Fons
Fordham International Law Journal
This Article seeks to examine the relationship between European Union (“EU”) law, international law, and the protection of fundamental rights in light of recent case law of the European Court of Justice (“ECJ”) and the Court of First Instance (“CFI”) relating to economic sanctions against individuals. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question of whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the UNSC, whether the ECJ has jurisdiction to review Community measures …
When Chinese Criminal Defense Lawyers Become The Criminals, Yanfei Ran
When Chinese Criminal Defense Lawyers Become The Criminals, Yanfei Ran
Fordham International Law Journal
This Article tries to find some practical resolutions for the problematic situation of Chinese defense lawyers. Part I introduces how Chinese laws and regulations provide legal protection for criminal defendants and their defense lawyers, and compares Chinese laws with well-established international standards. Part II focuses on examples of the problems and difficulties faced by Chinese lawyers in their defense work. Part III specifically discusses criminal charges that lawyers face in their practice. Part IV argues that the long-awaited new Chinese Lawyers Law cannot solve all of the problems or wipe away all obstacles they face. Rather, solving those problems requires …
Congress, The Supremacy Clause, And The Implementation Of Treaties, John T. Parry
Congress, The Supremacy Clause, And The Implementation Of Treaties, John T. Parry
Fordham International Law Journal
This Article intervenes in the self-execution debate by revisiting the early American understandings of treaty implementation in the decades before Foster. I first assess the significant materials from the founding era, some of which have never before been discussed in this context. I also critique the interpretations of other commentators who have been too quick to find support for a broad notion of self-execution in the historical materials. Although I conclude the founding generation generally assumed treaties would be law without congressional intervention, I emphasize that the ordinary story of consensus on these issues is inaccurate. Second, I analyze post-ratification …