Law Commons^™

Gaps, Issues And Prospects: International Law And The Protection Of Underwater Cultural Heritage, Lowell Bautista

Lowell Bautista

The protection and preservation of underwater cultural heritage is becoming an increasingly important issue as technologies develop which allow for its exploitation. The UNESCO Convention on the Protection of Underwater Cultural Heritage ("UCH Convention") is an important step in the international regulation of this resource. This paper examines the theoretical and historical antecedents of the UCH Convention, and outlines the Convention's most significant provisions. Specifically, this paper examines how the UCH Convention protects underwater cultural heritage in six areas: internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, and the Area. This paper then …

Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell

Mary Ellen O'Connell

No abstract provided.

Enforcement And The Success Of International Environmental Law, Mary Ellen O'Connell

Mary Ellen O'Connell

Professor O'Connell discusses the traditional methods used for international law "enforcement," and she argues that international law is generally obeyed. Its enforcement is based primarily on compliance, not enforcement. Accordingly, the author argues against using international enforcement mechanisms to enforce international environmental law. Instead, she posits that domestic courts should be used for international environmental law enforcement; however, certain obstacles, such as sovereign immunity, the doctrine of standing, and the principle of forum non conveniens, must be overcome. Professor O'Connell argues that it may be possible to overcome many of these court-made obstacles to enforcing international law through domestic courts. …

Ensuring The Preservation Of Submerged Treasures For The Next Generation: The Protection Of Underwater Cultural Heritage In International Law, Lowell Bautista

Lowell Bautista

In a historic moment that culminated almost a decade of negotiations, the Convention on the Protection of the Underwater Cultural Heritage (UCH Convention) was adopted on 2 November 2001.2 The UCH Convention is the fourth international instrument dealing with cultural heritage adopted under the aegis of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the first one specifically addressing the protection of underwater cultural heritage (UCH) in international law.3 The UCH Convention is the first universal instrument that exclusively deals with the preservation of UCH in international waters. The UCH Convention builds upon and addresses the gaps of …

The Implications Of Recent Decisions Of International Courts And Tribunals On The Territorial And Maritime Boundary Disputes In East And Southeast Asia (Nbr Special Report No.37 - Pp105-128), Lowell Bautista

Lowell Bautista

EXECUTIVE SUMMARY

This essay examines recent decisions of international courts and tribunals—specifically, the 2009 Maritime Delimitation in the Black Sea case between Romania and Ukraine—and draws implications for the territorial and maritime boundary disputes in East and Southeast Asia.

Main Findings The judgment of the International Court of Justice (ICJ) in the Black Sea case is a landmark jurisprudential contribution to the development of the law of maritime delimitation. In this case, the ICJ explicitly provided a three-stage delimitation method—which, although not novel, is a clarification and clear articulation not seen in previous cases.

The peaceful settlement of disputes over …

The Legal Status Of The Philippine Treaty Limits In International Law, Lowell Bautista

Lowell Bautista

The fundamental position of the Philippines is that the limits of its national territory are the boundaries laid down in the 1898 Treaty of Paris which ceded the Philippines from Spain to the United States. The position of the Philippine Government is contested in the international community and runs against rules in the Law of the Sea Convention, which the Philippines signed and ratified. The issue of the legal status of the Philippine Treaty Limits in international law has been subject of much academic debate and serious criticisms. This paper will analyse the legal status of the Philippine Treaty Limits …

International Legal Implications Of The Philippine Treaty Limits On Navigational Rights In Phillipine Waters, Lowell Bautista

Lowell Bautista

The Philippine Treaty Limits define the colonial territorial limits of the Philippine Archipelago and impose serious restrictions on navigational rights andfreedoms accorded to ships under the Law of the Sea Convention (LOSC), which the Philippines has signed and ratified. This paper discusses these navigational rights and freedoms and analyses the inconsistencies between the navigational regimes provided for in LOSC and their implementation in various Philippine maritime zones of jurisdiction.

The Philippine Treaty Limits And Territorial Water Claim In International Law, Lowell Bautista

Lowell Bautista

The fundamental position of the Philippines regarding the extent of its territorial and maritime boundaries is based on two contentious premises: first, that the limits of its national territory are the boundaries laid down in the 1898 Treaty of Paris which ceded the Philippines from Spain to the UnitedStates; and second, that all the waters embraced within these imaginary lines are its territorial waters. The position of the Philippine Government is contested in the international community and runs against rules in the Law of the SeaConvention, which the Philippines signed and ratified. This situation poses two fundamental unresolved issues of …

Taxing Citizens In A Global Economy, Michael S. Kirsch

Michael Kirsch

This Article addresses a fundamental issue underlying the U.S. tax system in the international context: the use of citizenship as a jurisdictional basis for imposing income tax. As a general matter, the United States is the only economically developed country that taxes its citizens abroad on their foreign income. Despite this broad general assertion of taxing jurisdiction, Congress allows citizens abroad to exclude a limited amount of their income earned from working outside the United States. Influential lobbying groups, including businesses that employ significant numbers of U.S. citizens abroad, argue that this exclusion is necessary in order to keep American …

A Framework Of Norms: International Human-Rights Law And Sovereignty, Douglass Cassel

Douglass Cassel

The international legal boundary between states; rights and human rights is not fixed. Long ago, the Permanent Court of International Justice - the judicial arm of the League of Nations and the precursor to the present International Court of Justice - recognized that "the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations." In recent decades international relations concerning both sovereignty and rights have developed quickly. An examination of those rights and the evolving realities of sovereignty are examined.

International Human Rights Law And Security Detention, Douglass Cassel

Douglass Cassel

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …

F13rs Sgr No. 9 (Us Passport Office), Baumgardner, Schwartzenburg

Student Senate Enrolled Legislation

No abstract provided.

Violence And Social Repair: Rethinking The Contribution Of Justice To Reconciliation, Laurel E. Fletcher, Harvey M. Weinstein

Laurel E. Fletcher

This article explores limitations of international criminal trials that assign accountability for mass atrocities to individuals, and offers a model to understand the contribution of trials to social reconstruction. In the last decade, there has been a burgeoning interest in the question of how countries recover from episodes of mass violence or gross human rights violations. This interest has focused on the concept of transitional justice, a term used to describe the processes by which a state seeks to redress the violations of a prior regime. Despite the fact that military and political leaders who ordered or directed mass terror …

Hollow Spaces, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

Agenda: Changing Regulatory Frameworks For Shale Development And "Social License To Operate", University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Changing Regulatory Frameworks for Shale Development and "Social License to Operate" (July 24)

Rapid development of unconventional shale resources in recent years has raised a series of regulatory issues both here and abroad. Because of the "distributed" nature of shale development and the significant increase in wells in key basins, local land-use conflicts have also erupted in certain areas of the country, leading to restrictions and moratoria on drilling by state, county, and municipal governments and raising questions about the industry's continued social license to operate in key jurisdictions. This moderated panel discussion will assess the current regulatory framework governing shale gas development and the changing dynamics among federal, state, and local regulation …

Sending American Children Abroad: An Analysis Of U.S. Adoption Practices After The Ratification Of The Hague Convention On Intercountry Adoption, Jessica J. G. Johnson

Jessica J. G. Johnson

While many people accept the fact that Americans and Europeans regularly adopt children from foreign countries such as China and Ethiopia, a different trend is becoming more common today. American-born children are being adopted by people living in foreign countries. This fact is not in itself bad or immoral; however, it clearly violates the Hague Convention on International Adoption which was fully integrated into U.S. law in 2008. This treaty has a provision known as the subsidiarity rule which states that all available options within the home country must first be considered before allowing a child to be adopted by …

Australian Approaches To International Environmental Law During The Howard Years, G. L. Rose

Professor Gregory Rose

This paper provides an overview of major Australian developments in international environmental law during the term of the Howard government.

Plant Genetic Resources, International Protection, G. L. Rose

Professor Gregory Rose

No abstract provided.

The Kolla Of Argentina: Neoliberal Trends And The Promise Of Law In The Process Of Reframing, Claiming And Maintaining Land Rights, Courtney C. Nussbaumer

The Macalester Review

Indigenous groups around the world have faced countless hardships—the Kolla of northwestern Argentina are no exception. While there is no doubt that the Kolla are a minority group both oppressed and marginalized, they have only recently begun to reconceptualize themselves as indigenous. Kolla identity struggles coupled with larger Latin American trends explained below make the Kolla an excellent case study to conceptualize the larger struggle between neoliberal governments and indigenous employment of international legal norms. Processes of legal globalization have led to the increasing codification of the collective rights of indigenous peoples in Latin America. This can be seen in …

The Kolla Of Argentina: Neoliberal Trends And The Promise Of Law In The Process Of Reframing, Claiming And Maintaining Land Rights, Courtney C. Nussbaumer

The Macalester Review

Indigenous groups around the world have faced countless hardships—the Kolla of northwestern Argentina are no exception. While there is no doubt that the Kolla are a minority group both oppressed and marginalized, they have only recently begun to reconceptualize themselves as indigenous. Kolla identity struggles coupled with larger Latin American trends explained below make the Kolla an excellent case study to conceptualize the larger struggle between neoliberal governments and indigenous employment of international legal norms. Processes of legal globalization have led to the increasing codification of the collective rights of indigenous peoples in Latin America. This can be seen in …

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

The Business Exemption Of § 110(5) Of The Copyright Act Violates International Treaty Obligations Under Trips: Will Congress Honor Its Commitments?, Charles Leininger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

A Brief Guide To Finding International Treaties, Jennifer Sekula

Library Staff Publications

No abstract provided.

Disaggregated State In Transnational Environmental Regulation, The , Hoi L. Kong

Missouri Law Review

This Article argues against a positivist view of international environmental law that (i) conceives of states as unitary entities that speak with one voice in pursuit of a single national interest,1 and that focuses on (ii) authoritative sources of law and (iii) the binding force of these sources of law. Further, this Article argues for a view of transnational law that (i) views the state as disaggregated, rather than unitary, (ii) focuses on informal legal mechanisms that do not have authoritative status and (iii) directs attention towards law’s facilitative functions and away from law’s binding force. This special issue’s theme …

Need For Legitimate Regulatory Regime In Bioethics: A Global And European Perspective, The , Jane Reichel

Missouri Law Review

Bioethics in global biobanking touches upon several internationally accepted fundamental rights and values, namely the sample donor’s right of privacy, the patient’s right to health, and – at least implicitly – scientific freedom. From the perspective of fundamental rights, however, there are very few internationally applicable rules as to the enforcement of these rights at the administrative level. Instead, the combination of the practical need for common rules and the lack of political will and/or legislative competence within the international community or the European Union (EU) seems to have paved the way for soft law. Further, the role of courts …

Disqualification For Bias And International Tribunals: Room For A Common Test , Margaret Allars

Missouri Law Review

This Article explores the scope for the development of a bias test applying to international tribunals. In the absence of a developed test in any such tribunal, an obvious source of jurisprudence is the case-law on Article 6(1) of the European Convention, which the European Court of Human Rights applies to domestic tribunals of member states. The requirement of impartiality in Article 6(1) has remained an abstract concept, slowly evolving on the foundation of common law maxims accepted as its rationale. While United Kingdom courts claim that their recent renovation of the common law test of apparent bias is the …

Dealing With Trans-Territorial Executive Rule-Making , Herwig C.H. Hofmann

Missouri Law Review

This Article discusses the reality of executive rule-making procedures with trans-territorial effect, with other words, the creation of non-legislative rules which have an effect outside the territorial limits of the jurisdiction of origin. It maps the phenomenon, discusses some of its central challenges for the realization of general principles of law and considers possible legal approaches addressing these. One of the most important issues thereby is to find workable solutions in the context of the pluralism of sources of law – national, supranational and international.

Responsble Fishing Practices And Combatting Iuu Fishing: International And Regional Standards, Mary Ann Palma, Quentin Hanich, Ben Tsamenyi

Professor Ben M Tsamenyi

No abstract provided.

The European Council Regulation On Illegal, Unreported And Unregulated Fishing: An International Fisheries Law Perspective, Martin Tsamenyi, Mary Ann Palma, Ben Milligan, Kwame Mfodwo

Professor Ben M Tsamenyi

On 29 September 2008, the Council of the European Union (EU) adopted Council Regulation (EC) No. 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fi shing. Essentially, the EU IUU Regulation establishes a framework in which access to EU markets for fi sheries products is partly conditioned by the extent to which a country, area or region of origin is demonstrably or increasingly free of IUU fi shing. Aside from the amendments to US legislation in 2007, the EU IUU Regulation is the only other domestic legislative measure adopted solely to combat IUU …

Current International Law And Practice Regarding The Right Of Hot Pursuit, Jack Mccaffrie, Ben Tsamenyi, Quentin Hanich

Professor Ben M Tsamenyi

No abstract provided.