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2004

International Law

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Full-Text Articles in Law

A Stag Hunt Account And Defense Of Transnational Labour Standards---A Preliminary Look At The Problem, Alan Hyde Dec 2004

A Stag Hunt Account And Defense Of Transnational Labour Standards---A Preliminary Look At The Problem, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Transnational labor standards are modeled as cooperative solutions to the class of strategic dilemmas known as Stag Hunts, in which all actors would gain from a cooperative solution, but only if all cooperate. If you think a partner will defect, your best strategy is also to defect. Intuitively, India, Pakistan, and Bangladesh will all be better off if none of their children work and all go to school; however if one defects from this agreement it will capture a stream of foreign investment linked to child labor. Understanding Stag Hunts explains why transnational labor standards are found both in genuinely …


Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell Dec 2004

Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell

The Ohio State University Moritz College of Law Working Paper Series

US Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, “stuff happens.” In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result, …


Justice In The Palestine-Israel Conflict, John B. Quigley Dec 2004

Justice In The Palestine-Israel Conflict, John B. Quigley

The Ohio State University Moritz College of Law Working Paper Series

Military-territorial conflicts are typically addressed by the international community on the basis of considerations of justice, meaning relevant standards accepted by the community of states for conduct among states and peoples. If such standards are followed, resulting agreements stand a greater chance of providing for a lasting peace. In the conflict over historic Palestine, considerations of justice have had to compete with considerations of major-power policy, from early twentieth century to the present. When negotiations re-commence, the international community should ensure that they be conducted with considerations of justice at the forefront. If that approach is taken, in particular regarding …


The New Canon: Using Or Misusing Foreign Law To Decide Domestic Intellectual Property Claims , Edward S. Lee Dec 2004

The New Canon: Using Or Misusing Foreign Law To Decide Domestic Intellectual Property Claims , Edward S. Lee

The Ohio State University Moritz College of Law Working Paper Series

This Article provides the first in-depth analysis of the use of foreign authorities to resolve issues related to domestic statutes, particularly focusing on intellectual property (IP) statutes. The study of IP statutes provides a fertile area of research because of the increased pressures for international protection of IP. The Article criticizes the current approach U.S. courts have taken to using foreign authorities in this area, which can best be described as ad hoc. The Article then sets forth a framework by which U.S. courts can decide, more systematically, when to rely on foreign authorities in IP cases. The Article fills …


The End Of The Ecsc, Benedetta Carla Angela Ubertazzi Dec 2004

The End Of The Ecsc, Benedetta Carla Angela Ubertazzi

Benedetta Carla Angela Ubertazzi

No abstract provided.


Uberregulation Without Economics: The World Trade Organization's Decision In The U.S.-Mexico Arbitration On Telecommunications Services, General Agreement On Trade In Services, Gats, J. Gregory Sidak, Hal J. Singer Dec 2004

Uberregulation Without Economics: The World Trade Organization's Decision In The U.S.-Mexico Arbitration On Telecommunications Services, General Agreement On Trade In Services, Gats, J. Gregory Sidak, Hal J. Singer

Federal Communications Law Journal

In April 2004, a World Trade Organization ("WTO") arbitration panel found that Mexico had violated its commitments under the Annex on Telecommunications to the General Agreement on Trade in Services ("GATS") by failing to ensure that Telmex, Mexico's largest supplier of basic telecommunications services, provide interconnection to U.S. telecommunications carriers at international settlement rates that were costoriented. The WTO panel deemed long run average incremental cost ("LRAIC") to be the appropriate cost standard for setting settlement rates. Mexico thus became obliged to change its domestic telecommunications regulations or face trade sanctions. The decision is the first WTO arbitration to deal …


Recognition And Enforcement Of International Commercial Arbitration Awards, Shouhua Yu Dec 2004

Recognition And Enforcement Of International Commercial Arbitration Awards, Shouhua Yu

LLM Theses and Essays

Arbitration is an effective way to solve disputes, through which parties from different countries can be partially free from anyone’s local jurisdiction. However, the recognition and enforcement of international arbitration awards still rely on the national court system. Since China opened its door to the world, more and more commercial disputes have been settled through arbitration. However, many foreign investors and writers have complained about the defects in the recognition and enforcement of arbitration awards in China. This paper will look into the causes of these defects in, and try to find ways to resolve the defects.


Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh Dec 2004

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …


“Judicial Nationalism” In International Law: National Identity And Judicial Autonomy At The Icj, Adam M. Smith Nov 2004

“Judicial Nationalism” In International Law: National Identity And Judicial Autonomy At The Icj, Adam M. Smith

ExpressO

To many, the International Court of Justice’s allowance for a State to have a co-national on the bench when the Court hears its case is an affront to “justice.” The unstated assumption—under which both the critics of the practice and the States who demand it operate—is that national judges will view co-nationals with greater sympathy than they do foreigners. Despite its intuitive appeal, it is troubling that States, critics and academics alike have accepted this assumption with little questioning. In fact, nothing on “judicial nationalism” in the ICJ has appeared in the academic literature since the 1960s. Given the ICJ’s …


Balancing Representation: Special Representation Mechanisms Addressing The Imbalance Of Marginalized Voices In African Legislatures, Stephanie L. Kodish Nov 2004

Balancing Representation: Special Representation Mechanisms Addressing The Imbalance Of Marginalized Voices In African Legislatures, Stephanie L. Kodish

ExpressO

This report focuses on four different mechanisms designed to provide marginalized groups in Africa with improved legislative representation at the national level. These special representation mechanisms include: proportional representation, guaranteed minority seating, advisory bodies and affirmative gerrymandering . These tools appear a beneficial means through which nations may eliminate discrimination, better safeguard the interests of marginalized people, boost opportunity for political expression and place each member of society on equal footing.

To situate this discussion in its proper context, this paper explores relevant international law, the case for and against special representation and the myriad problems that arise in attempting …


The Trade Of Cross-Border Gambling And Betting: The Wto Dispute Between Antigua And The United States, James D. Thayer Nov 2004

The Trade Of Cross-Border Gambling And Betting: The Wto Dispute Between Antigua And The United States, James D. Thayer

Duke Law & Technology Review

The first ecommerce dispute to come before the World Trade Organization ("WTO") was billed to be one of David and Goliath proportion. The tiny twin-island nation-state of Antigua and Barbuda challenged the United States' ban on cross-border Internet gambling and betting. As a result of the dispute, the WTO issued a private final report against the United States finding that the ban violates the United States' commitments under the WTO. Shortly before the public release of the final report, both parties petitioned the WTO to indefinitely postpone its release so that the parties could engage in private negotiations. The final …


The Pacific Ocean And U.S.-Japan Relations: A Way Of Looking Back At The 20th Century, Akio Watanabe Nov 2004

The Pacific Ocean And U.S.-Japan Relations: A Way Of Looking Back At The 20th Century, Akio Watanabe

San Diego International Law Journal

Speaking of a "Pacific Age" is now commonplace. About a hundred years ago, however, it was almost a flight of fancy. In 1890, Manjiro Inagaki, a Cambridge-educated Japanese diplomat, wrote: "Without doubt the Pacific will in the coming century be the platform of commercial and political enterprise. This truth, however, escapes the eyes of ninety-nine out of a hundred, just as did the importance of Eastern Europe in 1790 and of Central Asia in 1857." Inagaki's belief was based on the seemingly inevitable clash of interests between England and Russia in those years. The rivalry for spheres of influence between …


Recollections Of The 1952 International North Pacific Fisheries Convention: The Decline Of The Principle Of Abstention, Shigeru Oda Nov 2004

Recollections Of The 1952 International North Pacific Fisheries Convention: The Decline Of The Principle Of Abstention, Shigeru Oda

San Diego International Law Journal

Having recently completed twenty-seven years on the bench of the International Court of Justice in The Hague, I have just returned to Sendai, Japan, my home town. Please permit me therefore to offer some personal recollections of the time fifty years ago when, as a graduate law student from occupied Japan traveling on a passport issued by General MacArthur, Supreme Commander of the Allied Powers in Japan, I began preparation of my doctoral dissertation at Yale Law School.


Foreword, Amit S. Parekh, Harry N. Scheiber Nov 2004

Foreword, Amit S. Parekh, Harry N. Scheiber

San Diego International Law Journal

The Journal, in partnership with the Law of the Sea Institute at the University of California, Berkeley, is therefore proud to present a symposium on "Multilateralism in International Ocean Resources Law." The authors represented in this symposium delivered papers last year at a conference organized by the Institute at the Boalt Hall School of Law, UC-Berkeley; and those papers have been extensively revised for publication in this issue.


The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary Of A New Department In Ocean Law, Harry N. Scheiber Nov 2004

The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary Of A New Department In Ocean Law, Harry N. Scheiber

San Diego International Law Journal

In the broadest historical perspective, the Convention laid the groundwork for the modern-day norm of multi-lateralist style and structure for sustainable management of ocean resources. It is fitting, then, that a conference bringing together experts on ocean law and policy from many countries would have gathered in 2003 at the University of California, Berkeley to consider the current-day initiatives in multilateralism and, at the same time, to recall their origins and precursors starting with the International North Pacific Fisheries Convention.


Marine Ecosystem Management & (And) A Post-Sovereign Transboundary Governance, Bradley Karkkainen Nov 2004

Marine Ecosystem Management & (And) A Post-Sovereign Transboundary Governance, Bradley Karkkainen

San Diego International Law Journal

This paper argues that for purposes of managing transboundary environment problems in general, and marine ecosystems in particular, the role of international law as traditionally understood is somewhat overrated. Binding international legal obligations owed by states to other states often turn out to be a good deal less important in environmental problem solving than is commonly supposed by many international lawyers, legal scholars, and environmental NGOs (non-governmental organizations). Specifically, this paper argues that emphasis on binding multilateral environmental agreements among sovereign states is often misplaced and possibly even counterproductive, insofar as it threatens to divert attention from more promising strategies …


Flags Of Convenience Before The Law Of The Sea Tribunal, Tullio Treves Nov 2004

Flags Of Convenience Before The Law Of The Sea Tribunal, Tullio Treves

San Diego International Law Journal

Reflagged vessels and vessels flying flags of convenience (two phenomena that most often coexist) are frequent features in cases brought before the International Tribunal for the Law of the Sea (ITLOS or the Tribunal). Of all the cases decided by the Tribunal, only the Southern Bluefin Tuna cases and the MOX Plant case had nothing to do with this phenomenon; and only the former, which concerns fishing, somehow involves ships.


Scientific Cooperation In The North Pacific: The Pices Project, Warren S. Wooster, Sara F. Tjossem Nov 2004

Scientific Cooperation In The North Pacific: The Pices Project, Warren S. Wooster, Sara F. Tjossem

San Diego International Law Journal

While individuals carry out scientific research, their local, national, and international institutions also play an important role. This is particularly true in the case of marine science, where the vast scale and complexity of ocean resources demands not only cooperation among individuals and their institutions, but also an interdisciplinary approach that allows for interaction among fields such as physics and biology. Marine science also demands effective interaction between those who seek understanding of natural systems and their resources and those who wish to apply that understanding in utilizing those resources.


Regionalism, Fisheries, And Environmental Challenges In The Pacific, Jon M. Van Dyke Nov 2004

Regionalism, Fisheries, And Environmental Challenges In The Pacific, Jon M. Van Dyke

San Diego International Law Journal

The Pacific, the world's largest ocean, contains many of the world's smallest countries. Most of these isolated islands were under colonial domination from the mid-19th century (or earlier) until about the 1970s, when they became independent. New Zealand (Aotearoa) and Australia participate in many Pacific regional organizations and activities. They are viewed as partners but play separate and different, while still important, roles because of their larger size and differences in culture and history.


Japan, The North Atlantic Triangle, And The Pacific Fisheries: A Perspective On The Origins Of Modern Ocean Law, 1930-1953, Harry N. Scheiber Nov 2004

Japan, The North Atlantic Triangle, And The Pacific Fisheries: A Perspective On The Origins Of Modern Ocean Law, 1930-1953, Harry N. Scheiber

San Diego International Law Journal

I seek to establish here the degree to which multilateralism prevailed in the postwar era, or instead was overcome by unilateralist objectives and methods in pursuit of national interests. The empirical basis and special focus in much of my analysis is the discussion of Canada's role in regard to the diplomacy of the Pacific fisheries and more generally in regard to the process of developing modern ocean law as reflected in Canadian-U.S.-Japanese-British relations.


Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso Nov 2004

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …


Hyperownership In A Time Of Biotechnological Promise: The International Conflict To Control The Building Blocks Of Life, Sabrina Safrin Oct 2004

Hyperownership In A Time Of Biotechnological Promise: The International Conflict To Control The Building Blocks Of Life, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

This article addresses the corrosive interplay between the patent-based and the sovereign- based systems of ownership of genetic material. In patent-based systems, genetic material is increasingly “owned” by corporations or research institutions which obtain patents over such material. In sovereign-based systems, the national government owns or extensively controls such material. As more patents issue for synthesized genes in developed countries through the patent system, more raw genetic material is legally enclosed by the governments of developing nations, which house most of the world’s wild or raw genetic material. This interactive spiral of increased enclosure results in the sub-optimal utilization, conservation …


Judicial Globalization In The Service Of Self-Government, Martin S. Flaherty Oct 2004

Judicial Globalization In The Service Of Self-Government, Martin S. Flaherty

Princeton Law and Public Affairs Research Paper Series

This working paper considers potential justifications for the democratic legitimacy of what Anne-Marie Slaughter has termed, “judicial globalization” – the reliance by U.S. judges on international and foreign legal materials in the interpretation of domestic law. Toward this end the paper offers two and a half tentative answers, one distinctive to the U.S., the other(s) with general applicability. The distinctively American response, however conservative in theory, suggests that the original understanding of the Constitution supports a strong presumption that the Constitution, and Federal law generally, be interpreted in a way that is consistent with international law, particularly with regard to …


Section 4: International Law At The U.S. Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School Oct 2004

Section 4: International Law At The U.S. Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


The International Jurisprudence And Politics Of Hazardous Substances: Managing A Global Dilemma, Joseph F. St. Cyr Oct 2004

The International Jurisprudence And Politics Of Hazardous Substances: Managing A Global Dilemma, Joseph F. St. Cyr

Buffalo Environmental Law Journal

No abstract provided.


Curriculum Development At A New Law School: Dismantling The Walls Of Separation, Jeffrey C. Tuomala Oct 2004

Curriculum Development At A New Law School: Dismantling The Walls Of Separation, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


Georgia Journal Of International And Comparative Law Editorial And Managing Boards 2004-2005, Georgia Journal Of International And Comparative Law Oct 2004

Georgia Journal Of International And Comparative Law Editorial And Managing Boards 2004-2005, Georgia Journal Of International And Comparative Law

Materials from All Student Organizations

No abstract provided.


The Recent Wave Of Arbitrations Against Argentina Under Bilateral Investment Treaties: Background And Principal Legal Issues, Paolo Di Rosa Oct 2004

The Recent Wave Of Arbitrations Against Argentina Under Bilateral Investment Treaties: Background And Principal Legal Issues, Paolo Di Rosa

University of Miami Inter-American Law Review

No abstract provided.


Miami's Mambo: The "Cuba Affidavit" & Unconstitutional Cultural Censorship In An Embargo Regime, Joshua Bosin Oct 2004

Miami's Mambo: The "Cuba Affidavit" & Unconstitutional Cultural Censorship In An Embargo Regime, Joshua Bosin

University of Miami Inter-American Law Review

No abstract provided.


Providing Access To Generic Antiretroviral Drugs To People Living With Hiv/Aids In Developing Countries: An Examination Of Legal Obligations, Cheluchi Onyemelukwe Oct 2004

Providing Access To Generic Antiretroviral Drugs To People Living With Hiv/Aids In Developing Countries: An Examination Of Legal Obligations, Cheluchi Onyemelukwe

LLM Theses

The HIV/AIDS epidemic is a devastating medical, social and economic problem in many developing countries. Presently, the only therapeutic remedies for the disease are antiretroviral drugs, which do not cure HIV/AIDS but are effective in restoring the health of people living with HIV/AIDS. Unfortunately, these drugs are unavailable to many people living with the disease in developing countries. This has been attributed to the exorbitant prices resulting from the patent rights of multinational pharmaceutical companies over the drugs. Legal literature has therefore focused principally on intellectual property rights as obstacles to access to antiretroviral drugs in developing countries. This thesis, …