Law Commons^™

Extraterritorial Application And Customary Norm Assessment Of Non-Refoulement: The Legality Of Australia's 'Turn-Back' Policy, James Mansfield

The University of Notre Dame Australia Law Review

This article considers whether the Commonwealth Government’s border protection policy of turning back asylum seeker boats breaches its international obligation not to refoule refugees, as imposed under the Refugee Convention art 33(1). In addressing this issue the article examines whether art 33(1) applies extraterritorially, and whether a similar obligation has become embedded in customary international law. The conclusions reached are applied to specific situations where Australia has returned refugees.

From Cause To Responsibility: R2p As A Modern Just War, Zamaris Saxon, Lara Pratt

The University of Notre Dame Australia Law Review

This article examines the relationship between just war theory and the modern principle of responsibility to protect (R2P). In the absence of the principle’s clear use as a justification for the use of force, this article considers two situations which prompted debate about the applicability of the principle - the UN Security Council authorised no-fly-zone in Libya in 2011 and the decision not to use force in Syria in 2012. The article’s core message is that the debates about R2P suggest that rather than view R2P as a ‘new’ principle of international law, it should be viewed as a modern …

Bringing In A New Scale: Proposing A Global Metric Of Internet Censorship, Philip Chwee

Fordham International Law Journal

Part I of this Note provides an overview of Internet censorship and international law, including the different approaches and theories behind Internet censorship. Part I.A discusses the development of the ICCPR and its application to the Internet. Next, Part I.B-D provides an in-depth overview of the Internet censorship models of three different countries: the United States, the United Kingdom, and China. Part II examines each country’s Internet censorship model under Article 19 of the ICCPR, considering Article 19(3)’s three-part test and requirements established by recent UN reports interpreting them. The analysis will also examine each country’s copyright laws under Article …

The Effect Of The United Nations Convention Against Torture On The Scope Of Habeas Review In The Context Of International Extradition, Evan King

Fordham International Law Journal

This Note considers the law underlying the question addressed in Trinidad: can habeas courts review an extraditee’s Article Three claims? In turn, this Note considers how courts should interpret the CAT in the extradition context. Part I explores the important conceptual components of the question posed in Trinidad,including US extradition practice, habeas petitions in extradition proceedings, and the CAT’s implementation in the United States. Building on this, Part II examines competing interpretations of Article Three claims in US courts, highlighting how these claims touch on much deeper issues that remain unsettled by several hundred years of habeas corpus jurisprudence. Finally, …

Worst Decision Of The Eu Court Of Justice: The Alrosa Judgment In Context And The Future Of Commitment Decisions, Frederic Jenny

Fordham International Law Journal

This Article details the evolution of the commitment decisions, analyzes the logic and the consequences of the Alrosa Court judgment, and offers some suggestions on how to establish a better equilibrium between the legitimate objective of promoting the effectiveness of the Commission by allowing it enough flexibility to end cases when competition could be restored rapidly and without major expense thanks to the cooperation of investigated firms, while respecting the necessity to ensure that the effectiveness of enforcement remains compatible with three goals: developing a robust competition law jurisprudence to ensure legal predictability, particularly in abuse of dominance cases; ensuring …

Ending Female Genital Mutilation & Child Marriage In Tanzania, Lisa Avalos, Naima Farrell, Rebecca Stellato, Marc Werner

Fordham International Law Journal

This Article analyzes the current practices of FGM and child marriage in Tanzania and makes a number of recommendations for eliminating these severe human rights violations. Part I identifies the relevant forms of gender-based violence and discusses how they are practiced and related. Part II addresses applicable international and domestic legal authority, identifying potential gaps in domestic legal protection for young girls. Part III proposes several promising legal and policy strategies, both international and domestic, to reduce the practices of child marriage and FGM in Tanzania. Ultimately, some or all of these measures must be implemented to help bring an …

Rising To China's Challenge In The Pacific Rim: Reforming The Foreign Corrupt Practices Act To Further The Trans-Pacific Partnership, Michael B. Runnels

Seattle University Law Review

It is a commonly held myth that the rise of U.S. global economic hegemony rests upon a free trade philosophy. On the contrary, protectionist trade policies were central to galvanizing American industrialization. This misconception lies at the heart of why the trade liberalization policies enforced under the U.S.-led Bretton Woods institutions, the World Bank and the International Monetary Fund (IMF), brought ruinous results to many poor countries. The subsequent decline in credibility of these institutions challenges their continued relevance and opens a space for powerful nations to fashion alternative rules of trade. China is a member of the IMF but …

Corporate Complicity In Human Rights Violations Under International Criminal Law, Danielle Olson

International Human Rights Law Journal

This paper examines the main legal elements of corporate criminal responsibility for involvement in serious human rights violations, focusing specifically on the mens rea, or mental element requirement of a crime. It analyzes in detail what it means for a business to be complicit, the degree of knowledge corporations and their officials must have to be implicated in accomplice liability, and a case study demonstrating the consequences of such liability on corporations.

Caultron Of Unwisdom: The Legislative Offensive On Insidious Foreign Influence In The Third Term Of President Vladimir V. Putin, And Iccpr Recourse For Affect Civil Advocates, Thomas M. Callahan

Fordham International Law Journal

Part I discusses Russian and international statutory law. It briefly outlines the structure of the government of the Russian Federation and discusses relevant articles of its Constitution. It then illustrates the legislative trend in question by discussing select legislation passed and proposed during President Putin’s third term that seeks to restrict non-Russian influence in Russian society. Part I closes with a discussion of Russia’s international human rights obligations, and the international redress available to Russian nationals affected by the laws in question. Part II considers the practical application of the laws discussed in Part I. This includes an examination of …

Eu External Relations: Exclusive Competence Revisited, Allan Rosas

Fordham International Law Journal

This Article will focus on the question of exclusive competence in the field of EU external relations, especially in the light of recent developments. After a brief discussion on the origins and development of exclusive competence, a distinction will be made between common commercial policy, which has traditionally been the most important area of an explicit “a priori” exclusive competence, and what is often called an implicit exclusive competence, which, as it is today based on some general criteria enshrined in TFEU Article 3(2), may be called “supervening” exclusive competence. With regard to both categories, the main focus will be …

"One Exam Determines One's Life": The 2014 Reforms To The Chinese National College Entrance Exam, Amy Burkhoff

Fordham International Law Journal

This Note first outlines the history of the hukou system in China before and after the major economic reform of 1978. Second, this Note outlines the specific institutional barriers that migrant children face when accessing compulsory, secondary, and tertiary education, with a specific focus on the hukou system. Third, this Note analyzes the goals and content of China’s State Council’s opinion released on September 4, 2014 suggesting a reform to the gaokao system intended to alleviate the institutional barriers to education. Finally, this Note argues that first, the State Council’s suggested reform directly addresses only one of the multiple institutional …

When Is Cross-Border Insolvency Recognition Manifestly Contrary To Public Policy, Michael A. Garza

Fordham International Law Journal

This Comment argues that the Public Policy Exception of Chapter 15 should be invoked only as a last resort and that, going forward, courts should engage in an analysis of § 1506 only when no other provision in Chapter 15 supports a decision to deny relief. To promulgate this argument and to clarify the public policy exception under the Model Law and Chapter 15, this Comment proceeds in three parts. First, Part I examines various public policy exceptions found in the law, including Article 6 of UNCITRAL’s Model Law on Cross-Border Insolvency, nations adopting Article 6 of the Model Law …

Civil Society Contributions To Inclusive Climate Cooperation, Elizabeth Burleson

Fordham International Law Journal

Engagement among States and decentralized, creative problem solvers can enhance the requisite cooperation to pick up the pace of solution implementation to match the rate of climate change. Global organizing capability, information sharing and innovation have enmeshed governments and civil society into new governance relationships. Technology has facilitated this process for many, but the hardware and software that has led to social networking is only a fraction of the story of dynamic, inclusive cooperation. Citizen sector actors hold both destructive and constructive capacity exceeding that of any previous era. While many remain overwhelmed by the scope of climate instability, members …

Filling The Gaps In Canada's Climate Change Strategy: "All Litigation, All The Time…"?, Cameron Jefferies

Fordham International Law Journal

This Article is organized into five parts. Part I situates Canada’s climate change experience. In Part II, Canada’s regulatory response to climate change and its gaps are positioned within a troubling ongoing federal retreat from the environmental arena that seems to favor resource extraction and export. Parts III to V discuss the possibility for increased human rights-based climate litigation in the Canadian context—even in light of past failures—and consider an emerging public law approach. The Article concludes by commenting on the prospect of the climate change problem playing out in Canadian courts.

The (Inter)Natioanl Strategy: An Ivory Trade Ban In The United States And China, Morgan V. Manley

Fordham International Law Journal

This Note argues that a near-complete ban in ivory trade not only raises difficult domestic legal issues, but also does little to stop elephant poaching in Africa. Further, enacting a similar ban in China is not only unrealistic, but also would increase the illegal trade and, therefore, the slaughter of elephants in Africa. Part I explains the history of illegal ivory trade and describes the current legal environments in the United States and China. Part II presents the domestic legal and policy implications of an ivory ban, and analyzes the potential difficulties with implementing a similar ban in China. Part …

An International Legal Framework For Se4all: Human Rights And Sustainable Development Law Imperatives, Thoko Kaime, Robert L. Glicksman

Fordham International Law Journal

This Article examines the genesis and context of SE4All, placing the effort within both its historical and international policy contexts. It highlights the voluntary nature of the initiative and argues that its effective implementation and the achievement of its goals require the articulation of an applicable international legal framework that aids the transformation of SE4All’s policy actions into binding international legal commitments. The article contends that such a transformation does not depend on the creation of entirely new legal rules or institutions. Instead, an effective framework for successful implementation of SE4All can be derived from existing rules of international human …

"Europe Isn't Working In Europe": Reform And Modernisation Of The European Welfare State In The Wake Of The Economic Crisis, Erika Szyszczak

Fordham International Law Journal

The first section analyses the European commitment to a welfare state in the light of the creation of an Internal Market and the economic crisis. The second section addresses how the EU has set about the reform and modernisation of public finances in response to the economic crisis. The third part analyses how the EU is balancing a modernisation agenda of reforming public services with a tougher agenda on reforming public finances. This section is followed by a specific case study of the modernisation of the procurement and financing of public services.

The Pacific Alliance And Its Effect On Latin America: Must A Continental Divide Be The Cost Of A Pacific Alliance Success?, Christine Daniels

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Dynamic Allocation Of Burden Doctrine As A Mitigation Of The Undesirable Effects Of Iqbal’S Pleading Standard, Nicolás J. Frías Ossandón

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Hedge Fund Regulation Dilemma: Direct Vs. Indirect Regulation, Hossein Nabilou, Alessio M. Pacces

William & Mary Business Law Review

This Article studies regulatory strategies to address the potential systemic risk of hedge fund operation in financial markets. Due to the implications of the choice of regulatory strategies and instruments in terms of mitigating systemic risk, the Article focuses on one critical aspect of hedge fund regulation, namely the choice between direct regulation and indirect regulation. This Article defines the distinction between direct and indirect regulation, maps this distinction’s implications in terms of regulatory techniques and instruments, and analyzes the arguments for and against direct and indirect regulation of hedge funds. This Article argues that the indirect regulation of hedge …

Unilateral Non-Colonial Secession And The Criteria For Statehood In International Law, Glen Anderson

Brooklyn Journal of International Law

The following article examines the interactions between the right of peoples to unilateral non-colonial (“UNC”) secession and the criteria for statehood in international law. In this respect a three-point thesis is developed. First, it is argued that the law of self-determination has resulted in a less strict application of the criteria for statehood based on effectiveness, particularly the effective government criterion. This means that a state created by UNC secession pursuant to the law of self-determination will not have its statehood called into question if lacks an effective government. Second, it is argued that the declaratory approach to recognition is …

The Right To No: The Crime Of Marital Rape, Women's Human Rights, And International Law, Melanie Randall, Vasanthi Venkatesh

Brooklyn Journal of International Law

More than half of the world’s countries do not explicitly criminalize sexual assault in marriage. While sexual assault in general is criminalized in these countries, sexual assault perpetrated by a spouse is entirely legal. The human rights violations inhere in acts of violence against women are now well recognized. Yet somehow marital rape is a particular form of gendered violence that has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

This silence in the law creates legal impunity for men who sexually assault or rape the women who are their wives …

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

The Crisis Response In Europe's Economic And Monetary Union: Overview Of Legal Developments, René Smits

Fordham International Law Journal

Writing about developments in Europe’s Economic and Monetary Union (“EMU”) at this juncture in time is a bold endeavour and a hazardous undertaking. ‘Bold’ because the developments are manifold, highly technical in nature and deeply contested among the players and the public—between Greeks and Germans, between mainstream political parties and (emerging) parties taking a different view, and between politicians and the electorate. ‘Hazardous’ as developments go so fast that these lines shall be partially outdated the moment they appear in published form. And yet, there is a need to explore and explain. That’s what this contribution seeks to do: to …

Beyond Self-Judgment: Exceptions Clauses In Us Bits, Catherine

Fordham International Law Journal

No abstract provided.

On The Public-Law Character Of Competition Law: A Lesson From Asian Capitalism, Michael W. Dowdle

Fordham International Law Journal

No abstract provided.

The Living-Dead, Rivka Weill

Fordham International Law Journal

No abstract provided.

Making The Case For Antiestablishmentarianism: The Church And State In Norway, Julia L. Ernst

Fordham International Law Journal

No abstract provided.

How Domestic Courts Use International Law, Wayne Sandholtz

Fordham International Law Journal

No abstract provided.

How Italian Colors Guts Private Antitrust Enforcement By Replacing It With Ineffective Forms Of Arbitration, Einer Elhauge

Fordham International Law Journal

The United States is becoming more like Europe, and not in a good way. For a long time, the central difference between antitrust enforcement in the United States and Europe has been that the United States features not only public enforcement, but a vigorous system of private antitrust enforcement, while in Europe, public agencies have had an effective monopoly on antitrust enforcement. But that difference is on the verge of collapsing. We are achieving a form of convergence; but contrary to expectations, this convergence is not coming from recent European efforts to facilitate private enforcement, which have not yet overcome …