Law Commons^™

Influenza A(H1n1) And Pandemic Preparedness Under The Rule Of International Law, Lawrence O. Gostin

O'Neill Institute Papers

A novel strain of Influenza A (H1N1) spread rapidly through Mexico in April 2009 and now spans the globe. By the time WHO was notified and responded, geographical containment was not feasible, leading the agency to call for mitigation. The international outbreak of SARS in 2003 and the more recent Influenza A (H5N1) among birds with limited transmission to humans helped prepare the world for the current pandemic threat. SARS galvanized the WHO to revise the antiquated International Health Regulations (IHR) in 2005, which took effect June 15, 2007. Governments instituted preparedness plans in response to avian influenza.

Despite increased …

The Most Litigious People In The World, Jeff Rasley

Scholarship and Professional Work - LAS

Article for The Phi Beta Kappa Key Reporter about the contentious distribution of land in post-colonial Palau.

Joint Criminal Confusion, Jens David Ohlin

Cornell Law Faculty Publications

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 …

Book Review: The Iraq War And International Law, Maxwell O. Chibundu

Faculty Scholarship

A review of The Iraq War and International Law edited by Phil Shiner and Andrew Williams. Oxford, Hart Publishing, 2008.

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Faculty Publications

This article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the article is applicable to both domestic class arbitrations …

A Fiduciary Theory Of Jus Cogens, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

A Missing Part In International Investment Law: The Effectiveness Of Investment Protection Of Taiwan's Bits Vis-À-Vis Asean States, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Taiwan, classified as an “unrecognized state” or an “entity sui generis” by most international law scholars, has been excluded from most major international organizations and agreements for decades. This diplomatic isolation has had a negative influence on the protection of Taiwan’s overseas investments. This Article explores the six bilateral investment treaties (“BITs”) that the Taiwanese government has reached with the Association of Southeast Asian Nations (“ASEAN”) States and compares the weaknesses of the Taiwanese agreements with the investment frameworks established within ASEAN States. This Article concludes that Taiwan’s BITs with six ASEAN Member States fail to serve the very aim …

Transnational Legal Practice 2008, Laurel S. Terry, Carole Silver, Ellyn Rosen, Carol A. Needham, Jennifer Haworth Mccandless, Robert E. Lutz, Peter D. Ehrenhaft

All Faculty Scholarship

The current financial turmoil shaking the world illustrates the connectedness of national markets and economies. Legal practice is no exception: lawyers and their firms are experiencing the upheaval along with their clients.1 This has resulted in new opportunities for lawyers and firms–in bankruptcy and restructuring and, likely in the future, in regulatory advising as well–and, at the same time, in substantial challenges. The promise of benefits from a diversified practice–in terms of both substance and geography–is being tested as lawyers and law firms follow their clients through the uncertainties of the current economic conditions.

As law firms cut the size …

Ecj Review Of Member State Measures For Compliance With Fundamental Rights, John J. Barceló Iii

Cornell Law Faculty Working Papers

This essay explores the avenues through which a European-level system of fundamental rights might be effectively enforced against EU Member State measures. The parallel concept in the U.S. occurred when, starting in 1938, the U.S. Supreme Court began ruling that different distinct guarantees in the Federal Bill of Rights of the U.S. Constitution controlled State government measures. In the EU, the European Court of Justice (ECJ) could conceivably follow a similar line of development within the EU system, or, on the other hand, the European Court for Human Rights (ECtHR) could play that role. This essay explores these options and …

International Investment Arbitration: Winning Losing And Why, Susan D. Franck

Scholarly Articles

None available.

Targeted Killing In U.S. Counterterrorism Strategy And Law, Kenneth Anderson

Working Papers

Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for …

Development And Outcomes Of Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status …

Massachusetts Zappers - Collecting The Sales Tax That Has Already Been Paid, Richard Thompson Ainsworth

Faculty Scholarship

No other New England state is as vulnerable to Zappers as is the State of Massachusetts. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs).

Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in Massachusetts. A global perspective says: it is highly unlikely that Zappers are not in the Commonwealth – we just need to find them. In fact, using a Quebec template, tax losses from Zappers and related frauds in …

Israel's Transboundary Water Disputes, Philip A. Baumgarten

Elisabeth Haub School of Law Student Publications

As water is necessary to the function of life, it is imperative to understand the role of water in the politically turbulent Middle East. This paper will focus on Israel’s water disputes with her neighbors and how such disputes have either led to military confrontation, have been partially resolved, and otherwise continue to exist. As populations in the region are expected to increase, the need for water, already in short supply, will be magnified. Thus negotiations to settle water disputes and provide for equitable distribution of the water resources will become more contentious. This legal analysis of Israel’s water disputes …

Use And Enjoyment Of Intangible Services: The German, Austrian, Danish And Estonian Vat Derogations, Richard Thompson Ainsworth

Faculty Scholarship

When the Czech Republic elected (effective January 1, 2009) to derogate from the standard rules for determining the place of supply for intangible services, pursuant to Article 58 of the Recast VAT Directive (RVD), it was following the lead of ten other Member States. This paper considers four of those other jurisdictions - Germany, Austria, Estonia, and Denmark - and compares their derogations with that of the Czech Republic.

In each instance a use and enjoyment standard determines the place of supply for certain intangible services. The affected transactions are (potentially) wide ranging. In each instance non-EU countries are on …

Steps To Flow Restoration: Lessons From The Northwest, Reed D. Benson

Publications

No abstract provided.

Ecological Flows In New Mexico - It Has Been Done, Adrian Oglesby

Publications

No abstract provided.

The Pragmatics Of Allocating Water For Stream Flows, Steve Harris

Publications

No abstract provided.

New Mexico Wildlife Conservation Act: Cooperative Action For Native Species Recovery, Stephanie Carman, David Propst

Publications

No abstract provided.

The Effective Reach Of In Personam Reasoning In Private International Law, Tiong Min Yeo

2009 Yong Pung How Professorship of Law Lecture

Within the equitable jurisdiction, the phrase in personam has been used to describe the means of enforcement of the equitable decree, the justification for equitable jurisdiction generally, and the mechanism by which chancery rulings effectively override the common law. In the context of curial proceedings, the phrase is also used to describe the nature of jurisdiction assumed over a person, as well as the effect of a decree against a person, as opposed to a thing. In the discourse on rights, it is used to distinguish personal from property rights. In personam reasoning in the equitable sense has been used …

Schisms In Humanitarianism: The Khmer Rouge Tribunal's First Hearing, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Mass atrocity invokes humanitarian impulses in all of us. But when a genocidaire casts himself as a victim, the right response is less straightforward. This article analyzes a recent hearing of one of Cambodia's most feared Khmer Rouge cadres who stands trial before a newly established hybrid tribunal and suggests the consequences of responding to war crime trials with polemics rather than principle.

Constitutional Law And International Law: National Exceptionalism And The Democratic Deficit?, Michael Kirby

Philip A. Hart Memorial Lecture

On April 16 2009, Former Justice of the High Court of Australia, the Honorable Michael Kiryby delivered the Georgetown Law Center’s twenty-ninth annual Philip A. Hart Lecture: “ Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?”

When he retired from the High Court of Australia on February 2, 2009, Michael Kirby was Australia’s longest serving judge.

He was first appointed in 1975 as a Deputy President of the Australian Conciliation & Arbitration Commission. Soon after, he was seconded as inaugural Chairman of the Australian Law Reform Commission (1975-84). Later, he was appointed a judge of the Federal …

In The Name Of Sovereignty? The Battle Over In Dubio Mitius Inside And Outside The Courts, Christophe J. Larouer

Cornell Law School Inter-University Graduate Student Conference Papers

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and …

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

Does One Size Fit All? A Comparative Study To Determine An Alternative To International Patent Harmonization, Rohan K. George

Cornell Law School Inter-University Graduate Student Conference Papers

The Agreement for Trade Related Aspects of Intellectual Property Rights (TRIPS) was ratified by a majority of the countries of the world in 1994 as a precondition to membership in the World Trade Organization. Today, 153 of the countries of the world are parties to the TRIPS Agreement. The effect of the TRIPS Agreement was to create the first international substantive standards of patent harmonization, and to cause many countries to adopt intellectual property laws far stronger than they had in existence at the time. Today, the process of patent harmonization initiated with the TRIPS Agreement moves forward, through a …

The United Nations Declaration On The Rights Of Indigenous Peoples: A New Dawn For Indigenous Peoples Rights?, Ronald Kakungulu

Cornell Law School Inter-University Graduate Student Conference Papers

Governments in many countries of the world struggle with how to accommodate properly the needs and claims [rights] of native/indigenous peoples within their jurisdictions whose presence long predates European conquest and occupation. In this paper, a comparison and contrast of the approaches of the African and other jurisdictions whose jurisprudence is informative to the protection of the rights of African indigenous peoples, like the Inter-American Court of Human Rights compared with the US, Canada, New Zealand and Australia ‘the big four’ who voted against the UN Declaration on the Rights of Indigenous on September 13, 2007 at the UN General …

Bloodstains On A "Code Of Honor": The Murderous Marginalization Of Women In The Islamic World, Kenneth Lasson

All Faculty Scholarship

In the real world of the Twenty-first Century, deep biases against women are prevalent in much of Muslim society. Although there is no explicit approval of honor killing in Islamic law (Sharia), its culture remains fundamentally patriarchal. As unfathomable as it is to Western minds, "honor killing" is a facet of traditional patriarchy, and its condonation can be traced largely to ancient tribal practices. Justifications for it can be found in the codes of Hammurabi and in the family law of the Roman Empire. Unfortunately, honor killings in the Twenty-first Century are not isolated incidents, nor can they be regarded …

Bilateral Investment Treaties And Fdi Flows, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Given that one of the principal purposes of bilateral investment treaties (BITs) is to help countries attract investment flows (by protecting investments), it is only natural that the question has been raised whether they do, in fact, lead to higher investment flows. The main studies on this topic from the past decade are collected in The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows (Oxford University Press, 2009), a volume I edited with Karl P. Sauvant.

Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish

Journal Articles

This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty law.

The Detainees' Dilemma: The Virtues And Vices Of Advocacy Strategies In The War On Terror, Peter Margulies

Law Faculty Scholarship

No abstract provided.