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 …

The Age Of Criminal Responsibility In An Era Of Violence: Has Great Britain Set A New International Standard?, Stephanie J. Millet

Vanderbilt Journal of Transnational Law

With the alarming rise of juvenile crime and violence during the past decade, policymakers across the international community have struggled to develop effective juvenile criminal justice systems apart from the existing systems tailored to adults. The wide variations in methods and philosophies utilized in different states indicate that there is no consensus on the proper treatment of young offenders. Using the recent Bulger case as a focus, this Note examines two competing paradigms of juvenile justice found within the British juvenile justice system, with particular emphasis on the age of criminal responsibility. After discussing recent developments in Great Britain's juvenile …

Biodiversity: Opportunities And Obligations, Jeffrey P. Kushan

Vanderbilt Journal of Transnational Law

Mr. Kushan discusses the technology transfer provisions of the Convention on Biological Diversity, and outlines three themes found in the Convention related to technology transfer: benefit sharing, sovereign rights, and intellectual property rights protection. After briefly explaining the first two themes, the Article focuses on the third theme, the protection (or lack thereof) of intellectual property rights in the Convention. Mr. Kushan explains how the ideological split on intellectual property rights protection between the North and South found its way into the Convention and created ambiguous messages on intellectual property rights. Southern countries, who fear that strong intellectual property rights …

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 …

Two Propositions About Biodiversity, Clifford S. Russell

Vanderbilt Journal of Transnational Law

In his opening statement, Professor Russell gives two reasons why humankind should worry about the diversity of life on earth: (1) diversity is thought to make ecological systems more resilient to natural and man-made shocks; and (2) diversity provides a library of genetic information upon which society may draw. Professor Russell nevertheless warns against the notion that a 'safety-first" or safe minimum standard approach to environmental preservation is the correct response to these concerns. First, 'safety" is impossible to define. And, second, preserving all systems at all costs demands that society forego significant current economic rewards that result from altering …

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 …

Man Or Beast: The Convention On Biological Diversity And The Emerging Law Of Sustainable Development, W. Robert Ward

Vanderbilt Journal of Transnational Law

Mr. Ward explores the legal nature of the Convention on Biological Diversity by examining patterns in the development of international law. He considers two categories of global agreements: (1) novel issues agreements and (2) general principles agreements. The article defines these two types of agreements and then considers whether the Convention addresses a novel issue in conservation law. Mr. Ward argues that the Convention is instead a general principles agreement that marks a new development in international law. The article concludes by exploring how the Convention may influence the further evolution of the law of sustainable development.

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 …

Roundtable Discussion, Edgar J. Asebey, Jonathan I. Charney, Christopher C. Joyner, Lee A. Kimball, Catherine Tinker

Vanderbilt Journal of Transnational Law

Mr. Asebey: I agree with Professor Tinker absolutely about indigenous rights. But one thing we did not focus on very much, and I think is one of the most important aspects of conservation, is not how many species are or are not lost, and what the satisfactorily verifiable data establishes. If you go to Latin American and other developing countries, the people closest to biodiversity are the people who are most impacted by deforestation and some other destructive uses. These people who depend on the forest or the biosystems for their living, for their survival, they are being displaced all …

Biodiversity Prospecting: Fulfilling The Mandate Of The Biodiversity Convention, Edgar J. Asebey, Jill D. Kempenaa

Vanderbilt Journal of Transnational Law

After a brief overview of biodiversity prospecting, the authors review the historical context of biodiversity prospecting, including the common heritage doctrine, international patent law, and the Biodiversity Convention. The authors analyze the four major United States prospecting initiatives to date and identify their strengths and shortcomings. The authors then investigate two possible alternatives: (1) biological resource cartelization and (2) the development of a new type of biodiversity enterprise. The authors advocate the latter as a means of complying with the Biodiversity Convention.

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 …

Models For Parenthood In Adoption Law: The French Conception, Laura J. Schwartz

Vanderbilt Journal of Transnational Law

According to Ms. Schwartz, adoption in the United States is currently in a state of disarray and confusion because it has not achieved a satisfactory balance between biological and psychological parent-child relationships. U.S. adoption law has never adequately evaluated the relative importance of both types of relationships to the process of family formation. In contrast, although French adoption faces many of the same challenges as U.S. adoption, the French adoption process is not riddled with the same inconsistency and indeterminacy. Instead, French adoption law and government family policy reflect a societal consensus on the central and intrinsic importance of biological …

The United Nations International Conference On Population And Development: Religion, Tradition, And Law In Latin America, Gregory M. Saylin

Vanderbilt Journal of Transnational Law

At the 1994 United Nations International Conference on Population and Development, the Vatican, along with several Latin American and Muslim nations, fought against First World nations that sought to include provisions relating to abortion, contraception, sexual education, and women's issues in the Conference's Program of Action. Universal agreement was not reached and several nations, including the Vatican, refused to completely join the Program of Action.

This Note examines the history and theory behind the United Nations population conferences. Against this background, the author examines the 1994 Conference and considers its effect on Latin America by discussing the religion, tradition, and …

The O.J. Inquisition: A United States Encounter With Continental Criminal Justice, Myron Moskovitz

Vanderbilt Journal of Transnational Law

October 3, 1995 marked the end of the O.J. Simpson double murder trial, which lasted 474 days and was billed "the trial of the century." After less than four hours of deliberation, the jury acquitted Mr. Simpson of all charges. The following article is a dramatization of how a case similar to the Simpson trial might be handled by a civil-law European criminal justice system.

Utilizing an unusual format, Professor Myron Moskovitz examines and illustrates the differences between the United States and civil-law European criminal justice systems. The author uses a play script inspired by the events in the trial …

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 …

American Conflicts Scholarship And The New Law Merchant, Friedrich K. Juenger

Vanderbilt Journal of Transnational Law

Professor Juenger argues that both the unilateralist and the multilateralist schools of thought share a fixation on the idea that law must emanate from the power of a sovereign state. The author points out that such a view of law is a historic; that, in the past, merchants relied on a substantive body of supranational rules that transcended national borders. This Article discusses the contemporary significance of the law merchant for law professors, law students, and practitioners.

The author explains how the practices of contemporary transnational commercial enterprises, as well as the opinions of contemporary scholars , support the idea …

The Future Of Europe Lies In Waste, Daniel W. Simcox

Vanderbilt Journal of Transnational Law

This Note suggests that waste issues provide valuable insight into the European Community. As the Community has developed more fully into a common market, the movement of waste across national borders has caused concern in some member states. Waste has flowed from states with more restrictive environmental standards to those with less restrictive standards. In some states, the perceived increase in waste importation gave rise to public outcry for laws that banned any further waste importation.

After illustrating the problems by discussing a waste crisis in Belgium, this Note examines the European Community's response to such problems. This study reveals …