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1995

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International Law

Fordham International Law Journal

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The Challenge Of Asian Law, Whitmore Gray Jan 1995

The Challenge Of Asian Law, Whitmore Gray

Fordham International Law Journal

Several years ago, when U.S. trade across the Pacific finally surpassed that across the Atlantic, a small group of U.S. lawyers were already responding to the challenge of representing clients in transactions in Asia. While few had had the opportunity to take courses dealing with Asian law during their law school years, many entered the field because of undergraduate language and area studies courses. The challenges seem clear: improve the quantity, and especially the variety, of courses on Asian law; bring Asia into the mainstream of American teaching wherever possible - hopefully as a result of having involved American non-specialist …


The Law Of The Non-Navigational Uses Of International Watercourses: Dilemma For Lower Riparians, Reaz Rahman Jan 1995

The Law Of The Non-Navigational Uses Of International Watercourses: Dilemma For Lower Riparians, Reaz Rahman

Fordham International Law Journal

Today, three factors relating to fresh water sources are universally recognized: first, fresh water is a finite and shrinking resource, essential to sustain life, development, and the environment; second, the effective development and management of fresh water resources requires the participation and cooperation of all users, planners, and policy makers; and third, fresh water has an economic value in all its compelling uses and should, therefore, be recognized as an economic good. More than two decades ago, recognizing that many nations share international watercourses, members of the international community felt that an agreement was needed to codify the rules regulating …


The Emergence Of Diversity: Differences In Human Rights Jurisprudence, Fionnuala Ni Aolain Jan 1995

The Emergence Of Diversity: Differences In Human Rights Jurisprudence, Fionnuala Ni Aolain

Fordham International Law Journal

This Article documents the patterns of judicial divergence in the area of non-derogable rights. It examines the increased conservatism of the European Court of Human Rights relative to other international bodies in one specific area; the interpretation and protection of human rights violations in situations of emergency. This Article explores the responses of international courts and tribunals to situations where states have limited the exercise of their citizens' rights as a result of political crisis. These limitations are examined in relation to the agreed obligations of states to protect rights when they sign human rights treaties. Part I looks …


The Destruction Of Yugoslavia, Svetozar Stojanovic Jan 1995

The Destruction Of Yugoslavia, Svetozar Stojanovic

Fordham International Law Journal

If my statement about the first Yugoslavia being in many ways a non-synchronized and contradictory state is correct, what then can be said about the second Yugoslavia that endeavored, by keeping silent, to fill in the fatal fissure opened in Jasenovac and other places of annihilation of Serbs in the so-called Independent State of Croatia during the Second World War? For that reason, the former intermediator of the "international community" in Yugoslav conflicts, Lord Carrington, has repeatedly stated that with its new Constitution, Croatia rekindled the conflict with the Serbs.


The Quest For A Bosnian Constitution: Legal Aspects Of Constitutional Proposals Relating To Bosnia, Paul C. Szasz Jan 1995

The Quest For A Bosnian Constitution: Legal Aspects Of Constitutional Proposals Relating To Bosnia, Paul C. Szasz

Fordham International Law Journal

The analogue in international politics is the three-party conflict in Bosnia-Herzegovina, a quagmire in which first Europe and then the entire world have become stuck. The complexity of the problem reflects not only the intensity of the hatreds that have been fanned between the parties and must now be accounted for in any solution, but that two of the primary parties have immediate support in neighboring countries that also have their own bilateral problems to resolve; furthermore, each of these actors has, for historical or other motives, its own important patrons among the leading powers of the world.


Foreign Private Investment In Palestine: An Analysis Of The Law On The Encouragement Of Investment In Palestine, David P. Fidler Jan 1995

Foreign Private Investment In Palestine: An Analysis Of The Law On The Encouragement Of Investment In Palestine, David P. Fidler

Fordham International Law Journal

This Article analyzes the Investment Law and its prospects for encouraging foreign businesses to invest in Gaza and the West Bank (collectively, "Palestinian Territories").


The Use Of Force In A United Nations Peace-Keeping Operation: Lessons Learnt From The Safe Areas Mandate, Yasushi Akashi Jan 1995

The Use Of Force In A United Nations Peace-Keeping Operation: Lessons Learnt From The Safe Areas Mandate, Yasushi Akashi

Fordham International Law Journal

The United Nations Protection Force for the former Yugoslavia ("UNPROFOR" or "Force") was established to deter attacks on the safe areas with the use of force, to promote the withdrawal of non-Government forces from the area, and to safeguard the delivery of humanitarian aid. UNPROFOR's experience in Bosnia, particularly in the safe areas, provides a cautionary lesson on the limits of the use of force when sustained political will to back such force, and a willingness to accept the responsibilities and consequences arising from such action, do not exist. Since its inception, UNPROFOR has faced an extraordinary amount of international …


Reconciliation: Applying Historical Lessons To Modern Conflicts, Lord David Owen Jan 1995

Reconciliation: Applying Historical Lessons To Modern Conflicts, Lord David Owen

Fordham International Law Journal

Some argue that the need for reconciliation to override justice particularly applies in civil wars. Within the ICFY, all draft peace settlements and countless bilateral and trilateral statements signed by the parties have included a condemnation of ethnic cleansing and a declaration that any documentation signed under duress is null and void. This author believes that demonstrating to the world again that there are international laws governing individual conduct during war will contribute to the process of reconciliation in the former Yugoslavia and send a wider message to the world as a whole. This piece will examine the reconciliation process …


Lost Sovereignty? The Implications Of The Uruguay Round Agreements, William J. Aceves Jan 1995

Lost Sovereignty? The Implications Of The Uruguay Round Agreements, William J. Aceves

Fordham International Law Journal

This Article reviews the Uruguay Round Agreements and examines the implications of this new multilateral trading system on U.S. sovereignty. Specifically, this Article reviews the new dispute settlement process and the relevant U.S. legislation. Part I provides an overview of the Uruguay Round Agreements. It reviews the Agreement Establishing the WTO and the Understanding on Rules and Procedures Governing the Settlement of Disputes. Part II provides an overview of the U.S. implementing legislation. Part III reviews the proposed Dispute Settlement Review Commission. Part IV examines the implications of the Uruguay Round Agreements on U.S. sovereignty. Specifically, it analyzes the impact …


Aron Broches, Selected Essays: World Bank, Icsid And Other Subjects Of Public And Private International Law, Victor Essien Jan 1995

Aron Broches, Selected Essays: World Bank, Icsid And Other Subjects Of Public And Private International Law, Victor Essien

Fordham International Law Journal

With the possible exception of international peace and security, global economic development has been the dominant theme in international law and international relations since the end of the Second World War. The tenor and intensity has varied over the decades, but the objectives, centering on institutional arrangements and programs to promote the global economy, have remained the same. Broches' collection of essays, originally written between 1957 and 1992, attests to his intimate knowledge of the workings of the IBRD and its related agencies. In addition to providing both the history and the jurisprudential analysis of these institutions, these essays constitute …


Geraldine Van Bueren, The International Law On The Rights Of The Child, Roger J.R. Levesque Jan 1995

Geraldine Van Bueren, The International Law On The Rights Of The Child, Roger J.R. Levesque

Fordham International Law Journal

Simply stated, the international children's rights movement asks individual governments to take children's interests seriously when enacting laws for them. In order to enact policies that take children's interests seriously, all laws must be evaluated and examined from the child's point of view. An examination of the current international children's rights movement from the child's point of view, however, reveals considerable schisms between international principles and the state of the world's children. Professor Van Bueren directly examines the complex issues involved in defining and understanding children's rights. Her analysis of formal international law relating to the rights of the child …


Dedication To Ole Due, Gil Carlos Rodríguez Iglesias Jan 1995

Dedication To Ole Due, Gil Carlos Rodríguez Iglesias

Fordham International Law Journal

It is a great pleasure for me to write a few words in tribute to my former colleague and friend Ole Due. Over the past three decades, as a civil servant, a teacher, a judge, and President of the EC Court of Justice, Ole Due has strived and succeeded in making a substantial and valuable contribution to the development and understanding of European Community law.


The Preliminary Ruling Procedure And The United Kingdom, Carl Otto Lenz, Gerhard Grill Jan 1995

The Preliminary Ruling Procedure And The United Kingdom, Carl Otto Lenz, Gerhard Grill

Fordham International Law Journal

The agenda I propose for tonight's talk is both more specific and limited. I intend to look at the preliminary ruling procedure under Article 177 of the EC Treaty and how it is used by the legal community in the United Kingdom. In so doing, I shall draw comparisons to the practice in other major Member States in the Community. My views are of course based on the experience I have gained in my function as a member of the Court in Luxembourg. I would, therefore, be very much interested to learn whether they are shared by the legal community …


Two Years After Keck, Laurence W. Gormley Jan 1995

Two Years After Keck, Laurence W. Gormley

Fordham International Law Journal

This Essay begins by rejecting the reasoning of the joined cases Keck & Mithouard. After discussing what passes for reasoning in this case, this Essay examines the case law before and after Keck in order to attempt to draw some conclusions about the consequences of Keck for the earlier case law and about the application of Article 30 since Keck. In part through a comparison with recent case law on EC Treaty Article 59, the conclusion is that the case law on Article 30 has developed in an extremely unfortunate and unsystematic direction, but also that the unity of the …


Eu Cross-Border Securities Offerings: An Overview, Giovanni Nardulli, Antonio Segni Jan 1995

Eu Cross-Border Securities Offerings: An Overview, Giovanni Nardulli, Antonio Segni

Fordham International Law Journal

This Essay gives a general overview of the EC securities regulations and their influence on the offerings of securities involving several EU markets, with a particular focus on the disclosure requirements and the registration of prospectuses. This Essay will also discuss some regulatory concerns regarding the use of licensed intermediaries and their role in organizing a multi-jurisdictional securities offering. Lastly, this Essay will examine the debate on the reconciliation of various accounting principles and disclosure standards, an issue that is presently regarded as a priority on regulators' agenda, and one which will certainly affect the accounting practices adopted by global …


Judicial Protection Of The Individual By The European Court Of Justice, David O'Keefe Jan 1995

Judicial Protection Of The Individual By The European Court Of Justice, David O'Keefe

Fordham International Law Journal

This Essay focuses on one aspect of the work of the European Court, that of judicial protection of the individual, an area where it appears that the Court has taken steps towards the creation of a common law for Europe, or ius commune.


Oligopolies And Antitrust Law, Enrico Adriano Raffaelli Jan 1995

Oligopolies And Antitrust Law, Enrico Adriano Raffaelli

Fordham International Law Journal

This Essay aims to examine the application of antitrust law to the conscious parallelism characteristic of oligopolistic markets, with special emphasis on European Community and Italian laws.


The Notion Of Ancillary Restraints Under Ec Competition Law, F. Enrique González Díaz Jan 1995

The Notion Of Ancillary Restraints Under Ec Competition Law, F. Enrique González Díaz

Fordham International Law Journal

This Article examines the scope of the so-called ancillary restraints doctrine under European Community (“EC”) competition law and the legal consequences of its implementation in light of the administrative practice of the European Commission and the case-law of the European Court of Justice (“Court of Justice” or “Court”).


Ideal Standard V. Iht: In The European Union, Must A Company Surrender Its National Trademark Rights When It Assings Its Trademark?, Gregory W. Hotaling Jan 1995

Ideal Standard V. Iht: In The European Union, Must A Company Surrender Its National Trademark Rights When It Assings Its Trademark?, Gregory W. Hotaling

Fordham International Law Journal

This Comment argues that, given the consumer dependence on trademarks to distinguish between goods of varying quality, the ECJ made the correct holding in Ideal Standard. This Comment also argues, however, that the Court should have expressly limited its holding to trademarks, distinguishing them from other forms of intellectual property. Part I presents the historical background that underlies the conflict between national trademark rights and the Free Movement of Goods principle within the European Union. Part II discusses the ECJ's doctrines before Ideal Standard, which attempted to reconcile this conflict, and examines the Ideal Standard modification of the consent doctrine …


Policy And Principles: The Clinton Administration's Approach, James B. Steinberg Jan 1995

Policy And Principles: The Clinton Administration's Approach, James B. Steinberg

Fordham International Law Journal

In last night's State of the Union message, President Clinton challenged the United States to sustain our role as the leader in the fight for freedom and peace. Three years of American leadership by President Clinton have already produced great benefits for the American people and for the world community. Through determination and the exercise of American leadership, we have repeatedly turned challenges into real gains for Americans. In the Office of Policy Planning, we often are torn between helping to coordinate day-to-day policy and longer-term planning. In our fast-forward world, long-term sometimes means next Monday, and history is what …


Developing A Documentary Credit Dispute Resolution System: An Icc Perspective, S. Isabella Chung Jan 1995

Developing A Documentary Credit Dispute Resolution System: An Icc Perspective, S. Isabella Chung

Fordham International Law Journal

Spurred by the expansion of world trade and the increasing number of disputes involving documentary credits -- a global market now estimated at a staggering US$500 billion in letters of credit outstanding -- the International Chamber of Commerce's (“ICC”) is currently developing rules for the resolution of disputes arising from letters of credit issued under the Uniform Customs and Practices for Documentary Credits (“UCP”). The ICC's ongoing work in this area raises a host of issues related to the sufficiency of existing dispute resolving mechanisms. The ICC's initiative also provides a useful platform for evaluating the benefits and problems of …


Palestinian Economic Progress Under The Oslo Agreements, Mel Levine Jan 1995

Palestinian Economic Progress Under The Oslo Agreements, Mel Levine

Fordham International Law Journal

The Palestinian Authority and the Government of Israel have appointed official liaisons to Builders for Peace both to symbolize their endorsement and to facilitate the process where possible. The U.S. Government has provided modest operating funds in support of the effort out of its foreign assistance budget. The World Bank, the Departments of State and Commerce, the U.S. Trade Representative, the U.S. Trade and Development Agency (“TDA”), the U.N. Development Project (“UNDP”), the U.S. Ambassadors and Consuls General in the region and the U.S. Congress have all been consistent supporters of the mission. Individually and collectively, each has endorsed the …


Reaffirming Faith In The Dignity Of Each Human Being: The United Nations, Ngos, And Apartheid, Ibrahim J. Gassama Jan 1995

Reaffirming Faith In The Dignity Of Each Human Being: The United Nations, Ngos, And Apartheid, Ibrahim J. Gassama

Fordham International Law Journal

This Article explores serious questions that remain about the U.N. role in human rights struggles following the South African elections. Are there structural barriers that prevent the United Nations from acting more rapidly and decisively on human rights matters? What role does the United Nations have in the human rights struggle beyond the mechanics of electoralism and attainment of formal political equality? How can human rights non-governmental organizations (“NGOs”) help the United Nations become more effective in its human rights work? The fifty-year global campaign against state-directed racial oppression in South Africa provides lessons that help answer such questions. This …


The New Turkish Trademark Law, Ergun Özsunay Jan 1995

The New Turkish Trademark Law, Ergun Özsunay

Fordham International Law Journal

Since 1980, the Turkish economy has gradually gained a liberal character through the elimination of government intervention in the economy and the removal of exchange restrictions and customs barriers. These changes in economic policy are related to Turkey's desire to foster closer economic links with the European Union (“EU” or “Community”). Relations between Turkey and the European Union take place within the framework of an Association Agreement (“Ankara Agreement”). The Ankara Agreement was signed on September 12, 1963, and became effective on January 1, 1973. The Ankara Agreement provides the possibility of Turkey's eventual membership in the European Union. Undoubtedly, …


Now That The Fog Has Lifted: The Impact Of Japan's Administrative Procedures Law On The Regulation Of Industry And Market Governance, Ken Duck Jan 1995

Now That The Fog Has Lifted: The Impact Of Japan's Administrative Procedures Law On The Regulation Of Industry And Market Governance, Ken Duck

Fordham International Law Journal

This Comment argues that the APL will help transform Japan's informal regulatory style into a market-based regulatory structure that will foster improved efficiency and other benefits associated with market-based regulations. Part I discusses the development of informal administrative decision-making methods within Japan, analyzes the lack of judicial review of administrative guidance, and examines the process of administrative guidance. Part I also examines the factors that contributed to the enactment of the APL, to both limit and refine the administrative guidance process. Part II discusses the APL in light of the previous procedural inadequacies of the administrative guidance process, highlights new …


U.S. Shoe Corp. V. United States: A Victory For U.S.-Canada Maritime Trade, Howard Schragin Jan 1995

U.S. Shoe Corp. V. United States: A Victory For U.S.-Canada Maritime Trade, Howard Schragin

Fordham International Law Journal

This Comment argues that the recently decided case of U.S. Shoe should be upheld by the Federal Circuit upon review because allowing the continued imposition of the HMT would adversely affect the U.S. export industry and subject the Government to possible North American Free Trade Agreement (“NAFTA”) violations. Part I provides background information regarding Congress' commerce and taxation powers. Part I also analyzes the constitutional restrictions on taxation and presents the judicial interpretations of the Export Clause and Import-Export Clause. Part I then describes the CIT and how it functions. Next, Part I presents a review of NAFTA and U.S.-Canada …


Partners Against Crime: Joint Prosecutions Of Israeli Organized Crime Figures By U.S. And Israeli Authorities, Abraham Abramovsky Jan 1995

Partners Against Crime: Joint Prosecutions Of Israeli Organized Crime Figures By U.S. And Israeli Authorities, Abraham Abramovsky

Fordham International Law Journal

This article discusses the criminal case of Israel v. Mizrahi and Reisch, which is the largest joint prosecution—between U.S. and Israeli law enforcement authorities—ever undertaken against Israeli organized crime figures for acts committed outside Israel’s borders.


The Enhancement Of Political And Military Stability In The Former Yugoslavia Through The Use Of International Law: Annex 1-B Of The General Framework Agreement, Bonnie Jenkins Jan 1995

The Enhancement Of Political And Military Stability In The Former Yugoslavia Through The Use Of International Law: Annex 1-B Of The General Framework Agreement, Bonnie Jenkins

Fordham International Law Journal

This Essay examines how Annex 1-B on Regional Stabilization of the General Framework Agreement for Peace in Bosnia and Herzegovina (“GFA”) can achieve a political solution to conflicts in the former Yugoslavia through the limitation and transparency of the military forces and conventional weapons of the Parties.


Something Is Rotten In The State Of Affairs Between Nations: The Difficulties Of Establishing The Rule Of International Criminal Law Because Of Public Corruption, Charles S. Saphos Jan 1995

Something Is Rotten In The State Of Affairs Between Nations: The Difficulties Of Establishing The Rule Of International Criminal Law Because Of Public Corruption, Charles S. Saphos

Fordham International Law Journal

This Essay is written to outline the difficulties in establishing mechanisms for addressing multi-national criminal activities when those efforts continue to be frustrated by rampant public corruption. This Essay argues that the problems of public corruption are purposefully not addressed in the instruments which are intended to combat criminal activity. The Essay concludes that international efforts will continue to be frustrated until nations determine that they will not permit public corruption to void their efforts to better the lives of their populations and establish within the four corners of their agreements mechanisms for identifying, investigating, and sanctioning the corruption that …


The Nuclear Non-Proliferation Treaty's Obligation To Transfer Peaceful Nuclear Energy Technology: One Proposal Of A Technology, Seth Grae Jan 1995

The Nuclear Non-Proliferation Treaty's Obligation To Transfer Peaceful Nuclear Energy Technology: One Proposal Of A Technology, Seth Grae

Fordham International Law Journal

This Essay discusses the technology transfer provisions of the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) and describes the Radkowsky Thorium Reactor, which is being developed as a peaceful nuclear energy technology.