Law Commons^™

International Marine Environment Law: A Case Study In The Wider Caribbean Region, Benedict C. Sheehy

ExpressO

Abstract: This study examines the effectiveness of international marine environment law in controlling and abating contamination of the marine environment in the Wider Caribbean Region. The main international agreement covering the region is the Cartagena Convention which came into force in 1983. This convention, initiated by the UNEP under its Regional Seas Program, is considered one of the most successful of the programs. The study examines that claim in light of events since the adoption of the Cartagena Convention by the majority of nations bordering on the region. Mexico, because of its stature as a leading Latin American nation, is …

Arthritic Flexibilities: Analysis Of Wto Action Regarding Paragraph 6 Of The Doha Declaration On The Trips Agreement And Public Health, Brook K. Baker

ExpressO

This paper explores the tortured history of developing countries’ pursuit of access to affordable generic medicines that they are unable to produce efficiently on their own. Having lost rights to treat medicines as essential commodities and as generalized exceptions to patent protections in the WTO TRIPS Agreement, developing countries and public health activists temporarily reasserted the primacy of health over profits in the Doha Declaration on the TRIPS Agreement and Public Health in November of 2001. However, since most developing countries lack meaningful pharmaceutical capacity to manufacture medicines efficiently on their own, they needed flexibility to import medicines from countries …

Book Review: The Many Faces Of Power: An International Law Response To Robert Kagan’S “Of Paradise And Power”, Jason G. Morgan-Foster

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After summarizing the main points of Kagan’s book, the review responds to Kagan’s perception of power using the assumptions of international law, contrasting his definition of power to that of several international legal scholars. It then places Kagan’s realist approach in a broader context of international relations and international legal theory, beginning with a discussion of challenges to realism, and concluding with an examination of the growing body of “integrationist” literature which posits that the fields of international law and international relations are merging. The review then returns to the question of power, examining ways in which Kagan’s book challenges …

Developing Internationally Uniform Liability Principles For Harms From Genetically Modified Organisms , Ryan C. Hansen

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This paper analyzes the current legal principles regarding liabillity for harms from genetically modified organisms (GMOs) in the U.S. and E.U., as well as the various international policies and mechanisms affecting GMOs

Benin’S Constitutional Court: An Institutional Model For Enforcing Human Rights, Anna Rotman

ExpressO

This piece is based on field research the author conducted in Benin, West Africa during January 2003. The paper explores how the Court operates as a hybrid institution, by combining the competences traditionally associated with a constitutional court with the mandate of a national human rights commission. The paper argues that the Beninese Constitutional Court could provide an institutional model for guaranteeing human rights through a state-sponsored institution.

Wto Plus: Creating Liberal Investment Through Regulating Tax Incentives, Jeremiah Johnson

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The World Trade Organization’s (WTO) narrow reading of the Agreement on Trade Related Investment Measures (TRIMs) should be expanded to prohibit specific and targeted tax incentives aimed at attracting foreign investment. These tax incentives restrict investment and trade liberalization. This paper proposes that trade and investment are intrinsically linked, and as such, the WTO is the proper forum to regulate investment measures. This paper argues the case against specific foreign investment attracting tax incentives. These incentives do little to actually attract investment, and are harmful to development. Individual tax incentives also limit the collective global benefits of investment. This paper …

Who Holds The Real Veto: Use Of Force And The Trusteeship Analogy, Paul Tan

ExpressO

It is a well-known fact that except when a country is defending herself from an armed attack, all recourse to force must be authorized by the Security Council. In early 2003, when President Bush became frustrated at the reluctance of the UN Security Council to authorize the use of force against Iraq for stalling on the weapons inspections regime, he told the world in no uncertain terms that America would attack Iraq alone if necessary. What I want to explore in this article is the question of whether countries retain a residual right to act outside of such authorization on …

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

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No abstract provided.

A Gradual Shift In U.S. Privacy Laws Towards A Comprehensive Regime , Kamaal R. Zaidi

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This paper examines the current trends in a predominantly sectoral U.S. privacy regime that appears to be becoming more comprehensive in nature with respect to data privacy protection. This trend has been greatly attributed to the European Union's comprehensive position on data privacy protection. This paper investigates the growth in U.S. data privacy protection in relation to federal and state legislative history, federal administrative procedures, and private industry efforts. This shift from sectoral to comprehensive regimes is significant in the backdrop of U.S-EU trade relations.

The Israeli Lust For Peace: Illusion, Tragedy And Prospect, Lloyd R. Cohen

ExpressO

The wishful thinking of Israelis and Americans has led to a pursuit of peace through negotiation and concilliation. This process has led more nearly to war, terrorism and great human suffering than to peace.

A Broader View Of Corporate Inversions: The Interplay Of Tax, Corporate And Economic Implications, Orsolya Kun

ExpressO

Multinational corporations have, in substantial numbers, moved their corporate residence from the U.S. to Bermuda, for the purpuse of minimizing U.S. taxation on their worldwide income. This study reviews the forms of these "corporate inversion transactions," and explores their tax implications, as well as their corporate governance implications and motivations. It is the first scholarly study to examine the corporate governance implications of inversions, and it concludes that previously unexplored aspects of the change of corporate domicile result in substantial reduction of accountability of directors and officers and significant impediments to enforcement of shareholder rights.

Atca, Doe V. Unocal: A Paquete Habana Approach To The Rescue, John Haberstroh

ExpressO

The article's centerpiece is the Ninth Circuit litigation (Doe v. Unocal) charging Unocal Corp. with complicity in the Burma’s government’s use of forced labor. The article first examines the Alien Tort Claims Act, under which the action is brought, through an exploration of that statute’s original purpose and historical context. The article then looks at the modern revival of ATCA in international human rights claims, and finally closely considers the Unocal litigation, in particular the September 18, 2002 decision favoring the plaintiffs. (The 2002 decision is undergoing review by an en banc panel of the Ninth Circuit, with the panel’s …

The Immunity Of Foreign Subsidiaries Under The Foreign Sovereign Immunities Act, Melissa M. Lang

ExpressO

No abstract provided.

In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith

ExpressO

No abstract provided.

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

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Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

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My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War. The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

The Guise Of Justice: Jurisdiction & Extradition Of Osama Bin Laden & Al Qaeda Terrorists, Matthew Greenwell

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No abstract provided.

The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack

ExpressO

In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in …

Democracy's Global Quest: A Noble Crusade Wrapped In Dirty Reality?, Andrew K. Coleman, Jackson Nil Maogoto

ExpressO

The end of the Cold War and the apparent "victory" of democracy witnessed a dramatic increase in the number, diversity and proportion of states formally committed to democratic principles. Prominent international law scholars argued vigorously that representative government was now an international legal entitlement.

It is debatable that a right to pro-democratic action, that is intervention to promote democracy exist. The determined reaction of the United Nations and the Organization of American States to the September 1991 overthrow of popularly-elected Haitian President Jean-Bertrand Aristide, and the attendant discussion within the Organization of American States about the possible use of force …

The Last Line Of Defense: The Doctrine Of Command Responsibility, Gender Crimes In Armed Conflict, And The Kahan Report (Sabra & Shatilla), Sherrie L. Russell-Brown

ExpressO

“THE LAST LINE OF DEFENSE” addresses using the doctrine of command responsibility - the doctrine according to which military and non-military leaders can be held individually criminally responsible for the crimes committed by their subordinates - before the International Criminal Court (ICC) as a way to prevent gender crimes in armed conflict. The prevention of gender crimes in armed conflict is an important issue for a variety of reasons. One extremely important reason is the connection that the United Nations has cited between the AIDS pandemic in Sub-Saharan Africa and rape in armed conflict. In addition, in the August 25, …

Multilateral Environmental Agreements And The Compliance Continuum, Teall E. Crossen

ExpressO

This paper responds to the observation that despite the high number of multilateral environment agreements (“MEAs”), and relatively high compliance rate, the global commons are continuing to deteriorate. I review the contemporary literature addressing the question: "why nations comply with international law," focusing specifically on MEAs. The competing schools of thought are organized along a "compliance continuum," – bordered at one end by the Chayesian approach advocating managing compliance, and the Downsian view at the other, arguing for enforcement when there are high incentives to defect.

In sum, my conclusions are (1) adequately responding to global environmental problems requires increasing …

Ecocide And Genocide In Iraq: International Law, The Marsh Arabs And Environmental Damage In Non-International Conflicts, Aaron Schwabach

ExpressO

In 1991, after the first Gulf War, the Marsh Arabs of southern Iraq rose up against the Hussein government, with U.S. encouragement. The rebellion failed; in retaliation the government embarked on a massive water diversion project to drain the wetlands. In 1970 the wetlands covered nearly 11,000 square kilometers; today they cover fewer than a thousand. The Marsh Arabs whose ancestors had lived in the wetlands for five thousand years were forced to flee; many died. The drainage of the wetlands was a deliberate and calculated act of genocide and ecocide. At the time, Iraq was a party to several …

Bridging The “Divide” Between Feminism And Child Protection Using The Discourse Of International Human Rights , Sherrie L. Russell-Brown

ExpressO

“Bridging the Divide” is an essay that addresses the perceived tension or “divide” between feminism and child protection. While, in theory, women’s and children’s rights are not necessarily antithetical, the policies that have been devised (allegedly to preserve and promote those rights) are, at times, at odds. For example, the policy of social services to remove a child from the home of the mother, rather than assist both mother and child by the creation of a better home environment, is certainly at odds with rights of the mother. To simplify the issue greatly, the right of women to have and …

The Cambodian Amnesties: Beneficiaries And The Temporal Reach Of Amnesties For Gross Violation Of Human Rights , Ronald C. Slye

ExpressO

This article uses the two amnesties granted by the Cambodian government in 1994 and 1996 to explore two important legal issues raised by amnesties generally: 1) to whom is the amnesty granted; and 2) for how long will the amnesty last.

The first issue addresses the beneficiary question – who is able to take advantage of an amnesty. The most interesting issue raised by the beneficiary question is whether an amnesty should be restricted to either superiors or subordinates. The article discusses this choice in the context of the Cambodian amnesties, other amnesties, and international law, and highlight the moral, …

Http://Www.Companynamesucks.Com: The Horizontal Effect Of Fundamental Rights On Private Parties Within Autonomous Internet Law, Vaios Karavas, Gunther Teubner

ExpressO

Much critique has recently been raised over the role played by ICANN Panels, when they adjudicate disputes over domain names. This article deals with the highly contentious question, whether or not ICANN Panels should or may enforce fundamental rights (e.g. free speech rights) against private parties within the legal order of ICANN, understood by us as semi-autonomous. Our thesis in this regard is that ICANN Panels in fact concretise fundamental rights within Cyberspace on the basis of a fiction. They draw upon the fiction of a "common core" of globally applicable principles of law, which include even human rights. Building …

Institutional And Substantive Reform Of The Anti-Dumping And Subsidy Agreements – Lessons From The Israeli Experience, Arie Reich

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This article proposes several amendments to the Anti-Dumping (AD) Agreement and the chapter on Countervailing Duties (CVD) of the Subsidies Agreement, drawing from the experience of the State of Israel in AD and CVD administration over more than a decade. In particular, the Article argues for the need for international regulation of the institutional settings of such administration within Member States. To this end, provisions should be added to the relevant WTO agreements that relate to the nature and composition of the national administering authorities, with the guiding principle being to ensure independence of the authorities and objectivity, fairness and …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

International Poverty Law: A Response To Economic Globalization, Timothy K. Kuhner

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This paper is directed at poverty lawyers and, more generally, anyone with an interest in the relationship between poverty and globalization. In this paper, I argue that poverty law needs to expand its scope in order to encompass the international dimensions of poverty, and to thereby become responsive to the current nature of poverty. This need is evident, because wealth and poverty have been globalized, domestic issues have become international issues, and international issues have become domestic issues and produced domestic changes. After establishing these premises, I describe five areas of research and advocacy, each of which is located within …