Law Commons^™

Editors' Introduction, Journal Editor

Vanderbilt Journal of Transnational Law

The following symposium contains articles based on papers presented at the Annual Meeting of the Association of American Law Schools, Section on Conflict of Laws, in New Orleans, Louisiana, January 6, 1995. The Section's program, Conflict of Laws in the Global Village: International Conflicts Issues for the General Course in Conflict of Laws, was organized by Professor Harold G. Maier of Vanderbilt University Law School, who was Chair of the Conflicts Section. The program was designed to identify and discuss current international conflict of laws issues that might fruitfully be explored in the general course on Conflict of Laws.

Charting The Law Of Maritime Boundaries, W. P. Gormley

Vanderbilt Journal of Transnational Law

When faced with disputes concerning maritime boundaries, one must analyze an array of materials, including: unilateral state practices, bilateral boundary agreements, multilateral regional conventions, the major international conventions--particularly the Law of the Sea Conventions of 1958 and the 1982 United Nations Law of the Sea Convention -- and customary international law. Beyond question, this huge corpus of material appears overwhelming to most practitioners and scholars when they attempt to resolve maritime disputes. Faced with such a daunting task, scholars, practitioners, and judges may want to consult International Maritime Boundaries, a brilliantly executed research project that analyzes 134 maritime boundaries. The …

Issues In The Measurement Of Biological Diversity, Andrew R. Solow, James M. Broadus

Vanderbilt Journal of Transnational Law

There are many national and international efforts to conserve biological diversity. However, since conservation resources are scarce, they must be used as effectively as possible. This Article examines recent developments in the definition and measurement of biological diversity . The authors explore the advantages and disadvantages of various measures of biological diversity, and the sensitivity of the optimal allocation of conservation resources to alternative measures. This Article demonstrates the importance of the choice of a biological diversity measure while simultaneously indicating that this choice is only one part of the ultimate goal of conservation.

The Meaning Of Terrorism--Jurisprudential And Definitional Clarifications, Louis R. Beres

Vanderbilt Journal of Transnational Law

This Article examines contemporary definitions of terrorism and determines that they are inadequate. The author describes five specific types of problems with current definitions and offers an appropriate scholarly remedy. This Article concludes, inter alia, that the United States should reject narrow, geopolitical definitions of terrorism. Instead, it should articulate and apply a single unambiguous standard that incorporates the requirements of just cause and just means. Absent evidence of these two elements, the insurgent use of force should be regarded as terrorism. This clearer and more objective definition will enable the United States to approach and address adversarial uses of …

Hazardous Waste Exportation: The Global Manifestation Of Environmental Racism, Hugh J. Marbury

Vanderbilt Journal of Transnational Law

During the last decade, the United Nations and other international organizations have been struggling with the issue of hazardous waste exportation to developing countries. At the same time, the United States has been grappling with environmental racism. However, critics of both hazardous waste exportation and environmental racism have overlooked their similarities, namely, that hazardous waste exportation and environmental racism place a disproportionate burden on the same classes of people, the poor and minorities. The exportation of hazardous waste to developing countries is essentially environmental racism on an international scale.

This Note briefly explains the history and economic motivations behind hazardous …

Biodiversity: Opportunities And Obligations, Jonathan I. Charney

Vanderbilt Journal of Transnational Law

This issue of the Vanderbilt Journal of Transnational Law is devoted to the Symposium on Biological Diversity that was convened by the Journal at the Vanderbilt University School of Law on January 20-21, 1995. The focus of the Symposium was the United Nations Convention on Biological Diversity. Biological diversity is a relatively new term in international law and relations. The Biological Diversity Convention was one of the products of the United Nations Conference on Environment and Development (UNCED) that was held in Rio de Janeiro, Brazil in June of 1992. Since the Convention was a product of UNCED, its substance …

Biodiversity In The Marine Environment: Resource Implications For The Law Of The Sea, Christopher C. Joyner

Vanderbilt Journal of Transnational Law

Professor Joyner begins by explaining what biodiversity is and how it is currently being threatened. He then describes the existing international prescriptions that relate to the preservation of biodiversity, including the Convention on Biodiversity, the Convention on the Law of the Sea, the Convention on the Prevention of Marine Pollution by Dumping and Other Matter, and the International Convention for the Prevention of Pollution from Ships. Professor Joyner examines how these prescriptions protect or fail to protect biodiversity in the marine environment, both independently and in conjunction with related international environmental law. Finally, he assesses how international organizations, regional protection …

The Biodiversity Convention: How To Make It Work, Lee A. Kimball

Vanderbilt Journal of Transnational Law

The Symposium convenors posed the following question: "Is a United Nations convention the most appropriate means to pursue the goal of biodiversity?" In response, the author notes that the Biodiversity Convention does not entail many binding obligations; rather, it provides a management framework from which further detailed action programs may develop. In the context of nonbinding international "soft law," the author advocates the adoption of a series of best practice "menus" for individual industries and sectors of activity, based on a review of existing technical criteria and guidelines. The author recognizes that specialized initiatives pursuant to the regional seas agreements …

Responsibility For Biological Diversity Conservation Under International Law, Catherine Tinker

Vanderbilt Journal of Transnational Law

Professor Tinker begins with a general discussion of biodiversity law within the context of existing international environmental issues and traditional international lawmaking. The article analyzes the legal issues that attend the fulfillment of the objectives of the Biodiversity Convention. The article examines the work of the International Law Commission on state responsibility and liability for environmental harm. The article then explores the precautionary principle and argues that it should be more aggressively applied in order to fulfill the mandate of the Biodiversity Convention.

Economic Coercion And The General Assembly: A Post-Cold War Assessment Of The Legality And Utility Of The Thirty-Five-Year Old Embargo Against Cuba, Richard D. Porotsky

Vanderbilt Journal of Transnational Law

The nature of the conflict between the United States and Cuba has clearly been changing since the fall of Communism in Eastern Europe. Deprived of foreign communist subsidies, Cuba has been forced to begin economic reform. Yet, the United States has retained its embargo against Cuba. Does the long-standing embargo violate international law? In an attempt to answer that question, this Note examines the status of a norm prohibiting the unilateral use of economic coercion and whether there has been any post-Cold War movement toward such a norm.

Over the past thirty years, despite several notable United Nations resolutions, developing …

On Demilitarizing A Palestinian "Entity" And The Golan Heights: An International Law Perspective, Louis R. Beres, Zalman Shoval

Vanderbilt Journal of Transnational Law

With the signing of the Oslo II Accord at the White House on September 28, 1995, Israel and the Palestine Liberation Organization codified the expansion of Palestinian self-rule in Judea and Samaria. Authors of this Accord argue that the security risks to Israel from the nascent Palestinian state could be reduced through appropriate forms of demilitarization. Similar arguments are being offered in relation to the Golan Heights, a strategic plateau currently in dispute between Israel and Syria. In this very timely and important Article, Professor Beres and Ambassador Shoval examine demilitarization in both contexts. They conclude, jurisprudential assurances notwithstanding, that …

A Draft Labor Code For Minsk: From Byelorussia With Love?, Lucas G. Paglia

Vanderbilt Journal of Transnational Law

Belarus, a former Eastern bloc country located between Russia and Poland, has drafted a comprehensive labor code to govern employment relations. This Note presents the historical underpinnings of the legislation, its major provisions, and its prospects for successfully handling labor disputes as well as encouraging foreign investment. The author first explores the current labor environment in Belarus, especially focusing on the recent privatization of industry, and its amenability to such regulation. The Note then analyzes specific provisions of the labor code and compares them to the National Labor Relations Act in the United States, as well as the conditions under …

An Interpretive Theory Of International Law: The Distinction Between Treaty And Customary Law, Hiram E. Chodosh

Vanderbilt Journal of Transnational Law

The author begins with an explanation of the importance of the distinction between treaty and customary law. The author then presents six alternative principles currently used to inform that distinction (dichotomy, overlap, relativity, interdependence, equivalence, and indeterminacy) and evaluates the application of these principles according to their theoretical coherence, practicability, reconcilability, and resolving power. The author concludes that each of the alternative principles is unsatisfactory in at least one respect and proposes a superior interpretive approach that does not define customary law in terms of treaty, but rather according to its own independently defining attributes. Finally, the author suggests that …

Economic Globalization: The Challenge For Arbitrators, Ranee K.L. Panjabi

Vanderbilt Journal of Transnational Law

CHOICE OF LAW IN INTERNATIONAL COMMERCIAL ARBITRATION

By Okezie Chukwumerije

Westport, Connecticut: Quorum Books, 1994. Pp. 219.

Arbitration at the municipal level is becoming more frequently used because it is regarded as a more expeditious process for resolving disputes. In the realm of labor relations, for instance, arbitration is often the dispute resolution method of choice and is incorporated in numerous collective agreements. In an arbitration the two parties usually select an arbitrator and jointly pay the costs of the process. In the collective agreement or contract, the parties stipulate the terms of the procedure that generally bind the arbitrator, …

The Incorporation Of International Law And The Impact On Constitutional Structures And Rights In Hungary, Duc V. Trang

Vanderbilt Journal of Transnational Law

In 1993, the Hungarian Constitutional Court upheld a draft law that would allow the prosecution of crimes committed during the 1956 uprising, despite the expiration of statutes of limitations. In reaching this result, the Court raised international law to the level of a constitutional standard by which Hungary's domestic laws would be judged. In this Article, the author examines the impact of the Court's decision to transform international law into domestic law. The author explores the implications of adopting international law on the relationship between the Court and other branches of the government, the development of domestic law, the growth …

International Issues In Common Law Choice Of Law, Harold G. Maier

Vanderbilt Journal of Transnational Law

In the year 1274, Sir Hugh LaPape, knight, vassal, and retainer of his liege lord, Edward the First of England, stood on a hill outside the city of Florence, Italy, and wept. Four years before, Sir Hugh had set off for the Holy Land at the call of his king, leaving behind him a beautiful palace with tall towers, shining in the morning sun. Now he surveyed the remains of that palace, a pile of rubble, in growing anger. Although a vassal of the English king, Sir Hugh had some years before removed himself from England to Florence, Italy, where …

Professor Lowenfeld Responds, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.

This brief response is addressed only to …

The 1994 Inter-American Convention On The Law Applicable To International Contracts, And Trends For The 1990s, Harold S. Burman

Vanderbilt Journal of Transnational Law

This Article emphasizes the importance of teaching transnational materials in the conflict of laws class. The rapid development of the "global village" has increased the importance and need for law students to understand how conflicts issues are resolved throughout the world. A failure to address transnational issues will leave students unprepared for the world, especially the legal marketplace, that they will enter after law school.

The author suggests that the traditional study of public international law, regarding the law governing relations between states, as well as the law between states and intergovernmental and nongovernmental organizations, is insufficient for contemporary law …

The Yugoslav War Crimes Tribunal: The Compatibility Of Peace, Politics, And International Law, Karl A. Hochkammer

Vanderbilt Journal of Transnational Law

Since 1991, a brutal war has raged among ethnic groups of the former Yugoslavia. Outraged by the atrocities that have pervaded the war, the United Nations established an international tribunal in 1993 to adjudicate violations of international humanitarian law committed in the Yugoslav conflict. Although well-intentioned, the Yugoslav Tribunal nevertheless may fail to accomplish its goals. A number of practical and legal obstacles may impede its success. In particular, the United Nations lack of physical control over the combatants in the Yugoslav conflict may frustrate the Tribunal's ability to bring accused war criminals to justice. This Note surveys the problems …

Why Teach International Family Law In Conflicts?, William L. Reynolds

Vanderbilt Journal of Transnational Law

Professor Reynolds sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignoring international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

Moreover, this Article suggests several additional reasons for including international family law in the general conflicts course. First, litigants entangled in divorce and custody proceedings with international complications face high financial and emotional costs; …

The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers

Vanderbilt Journal of Transnational Law

Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.

These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once …

Urban Despair And Nietzsche's "Eternal Return:" From The Municipal Rhetoric Of Economic Justice To The International Law Of Economic Rights, Barbara Stark

Vanderbilt Journal of Transnational Law

Urban poverty has had a devastating impact, especially on African Americans in the United States, who have been ill-served by the rhetoric of opportunity. In this Article, the author argues that economic rights must be recognized as rights if the urban poor are even to dream of economic justice. The author uses the writings of German philosopher Friedrich Nietzsche to explain how the past can be reclaimed. Urban poverty must be understood in an historical context. Limiting the inquiry to a domestic historical context not only blinds people to the relationship between domestic and international poverty, and domestic and international …

International Law And The Protection Of Biological Diversity, Daniel M. Bodansky

Vanderbilt Journal of Transnational Law

This article provides a general overview of international environmental law and biodiversity. First, the article argues that biodiversity is an international issue because international cooperation is necessary to implement national preservation policies effectively and because the benefits of biodiversity accrue in part to the international community. Second, the article discusses existing international law relevant to biodiversity, including wildlife and habitat protection treaties, the 1992 Convention on Biological Diversity, and general principles of international environmental law such as the precautionary principle, the principle of intergenerational equity, and the principle of differentiated responsibilities. Finally, the article recommends that the international community use …

Patrimonicide: The International Economic Crime Of Indigenous Spoliation, Ndiva Kofele-Kale

Vanderbilt Journal of Transnational Law

In the past two decades, the organized and systematic theft of a state's wealth and resources by its leaders has reached unprecedented levels in developing and less-developed states. Unlike previous acts of embezzlement by political leaders, this new wave of corruption-referred to as indigenous spoliation--involves billions of dollars and causes widespread social and economic devastation. This Article defines indigenous spoliation and presents some examples of this practice. The author describes the inadequacy of domestic law in dealing with the problem and suggests that international law should provide a remedy. Next, the author proposes a framework for holding persons involved in …

Changing The Approach To Ending Child Labor: An International Solution To An International Problem, Timothy A. Glut

Vanderbilt Journal of Transnational Law

A recent study by the United States Department of Labor has revealed that oppressive child labor is a serious problem in many countries. This Note begins by examining the international scope of the child labor problem, including the underlying reasons for its continued existence. The Note then discusses measures, both unilateral and multilateral, for curtailing child labor. The author determines that these measures are insufficient to end the child labor problem and discusses potential solutions to the problem. The author concludes that the most effective measure to end child labor would be a multilateral agreement with clear standards and an …