Law Commons^™

Nafta Title Vi Customs Modernization Act: An Importer’S Obligation To Use “Reasonable Care” Vs. Its Desire To Maximize Profits, Rosi Lehr

Rosi Lehr

No abstract provided.

Cyber War And International Law: Concluding Remarks At The 2012 Naval War College International Law Conference, Yoram Dinstein

International Law Studies

No abstract provided.

Classification Of Cyber Conflict, Michael N. Schmitt

International Law Studies

No abstract provided.

Cyber War And International Law: Does The International Legal Process Constitute A Threat To U.S. Vital Interests?, John F. Murphy

International Law Studies

No abstract provided.

Evaluating Flexibility In International Patent Law, Sarah R. Wasserman Rajec

Faculty Publications

Global patent law has raced toward harmonization over the past decades. Countries with vastly different industries, values, and levels of development now offer robust patent rights with similar contours through membership in the World Trade Organization and consequent adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). However, patent law is still far from harmonized among countries or static within countries. Jurisdictions tailor their patent laws to accommodate differences between industries, unforeseen inefficiencies, and diverse views of the costs and benefits associated with offering patent rights to stimulate innovation. Prior scholarly work consists of either doctrinal analyses …

Natural Law As Part Of International Law: The Case Of The Armenian Genocide, Fernando R. Tesón

San Diego Law Review

In this Article I argue that some norms are part of international law even if they have never been created by treaty or custom. Because such norms have never been posited, they are natural law norms, and my thesis is that these natural law norms are as much part of international law as the posited norms. By this I mean that these norms should figure in any catalog of what international law prescribes or permits.

Ineffective, Opaque, And Undemocratic: The Ious Of—Too Much—International Law And Why A Bit Of Skepticism Is Warranted, James Allan

San Diego Law Review

In this Article I want to give you an outsider’s view of international law, or at least this outsider’s view. And by outsider I mean someone who is usually interested in legal philosophy and constitutional law and who may well be thought to lack standing to offer the sort of views and criticisms that are to come.... The structure of this Article will be simple. I will criticize certain aspects of international law, especially rights-related international law, under the three headings you see in the title to this Article. However, I am going to take those headings and critiques in …

Plain Packaging And The Interpretation Of The Trips Agreement, Daniel J. Gervais, Susy Frankel

Daniel J Gervais

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging’s compatibility with the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). WTO members can validly take measures to protect and promote public health, but in doing so they …

International Cooperation Over Water Use In Central Asia, Jaume Saura Estapà

Jaume Saura Estapà

The aim of this paper is to analyse one of the key factors for understanding the region ofCentral Asia: its distinctive relationship to water resources. The first section examines the management of water resources in the region from the viewpoint of the obligation of cooperation established in general international law. Then, we explore the implications of water management in terms of the rights of citizens, regional cooperation in the management, conservation and sustainable development of the inland fisheries of Central Asia, and cooperation in the generation and distribution of hydroelectric power in the region.

Applying Jus In Bello Proportionality To Drone Warfare, David J. Akerson

David J. Akerson

This article applies the international humanitarian law (IHL) principle of proportionality to the use of unmanned aerial vehicles (UAVs), commonly referred to as drones,[1] by the United States military forces (US Military) and the United States Central Intelligence Agency (CIA) in its armed conflicts in Iraq and Afghanistan and the “war on terror” in places such as Pakistan, Yemen, Somalia and Mali.[2] Iraq and Afghanistan at some point were more conventional armed conflicts that yielded to occupations with a continuing conflict against irregular insurgents. Pakistan, Yemen, Somalia and Mali fall into the so-called “targeted killings” genre, defined as …

Affirming The Ban On Harsh Interrogation, Mary Ellen O'Connell

Mary Ellen O'Connell

Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called global war on terror. Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against …

When Is A War Not A War? The Myth Of The Global War On Terror, Mary Ellen O'Connell

Mary Ellen O'Connell

It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush's war on terror finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and …

Increase Quota, Invite Opportunities, Improve Economy: An Examination Of The Educational And Employment Crisis Of Undocumented Immigrants And Individuals From Abroad, Brittany Fink

Brittany Fink

No abstract provided.

Public Policy In International Investment And Trade Law: Community Expectations And Functional Decision-Making, Diane A. Desierto

Diane A Desierto

This article uses a contextual policy-oriented approach to assess how the standing debate on a State's regulatory freedom has been treated within international investment law (e.g. case-by-case interpretation of variant treaty design in each case), in contrast with how the issue of domestic regulatory autonomy in international trade law has evolved towards coordination (e.g. attempted harmonization of the same set of instruments). The article submits a different view from many primarily trade law/investment law scholars (and other systemic integrationists who idealize a seamless shift from trade law to investment law), who have postulated that this fundamental issue of State regulatory …

The International Criminal Court And Lubanga: The Feminist Critique And Jus Cogens, Eric Allen Engle

Bocconi Legal Papers

The Lubanga decision, despite procedural missteps, further anchors the prohibition of child soldiers and child auxiliaries under international law. Feminist criticisms of Lubanga misapprehend the potential of Lubanga to attain the types of legal victories feminists strive for. While one can criticize Lubanga as a matter of procedure, Lubanga methodically strengthens the prohibition of child soldiery. The prohibition of child soldiers, like the prohibition of wartime rape, forced prostitution, and child sex-tourism are or are becoming jus cogens norms. Lubanga contributes to this coherence of jus cogens and sets the stage for extension of its logic into other wrongs committed …

Corruption, Constitutions And Crude In Latin America, Fredrick V. Perry, Scheherazade S. Rehman

Fredrick V. Perry

This paper examines the perception of corruption that exists throughout Latin America, and analyses the importance of the institutional environment in Latin American countries, which are both richly endowed with and dependent on oil and natural gas. First, we look at corruption generally in the region and then carry our analysis by looking at various countries’ GDP per capita versus several indices measuring different dimensions of countries’ economic development, political progress, and social performance. We also combine corruption indices and separate them by typology of corruption in order to investigate the particular facets of corruption that pose the greatest impediment …

Efficient Breach In The Common European Sales Law (Cesl), Wenqing Liao

Wenqing Liao

In the classic economic theory, it is suggested that contract law should be structured in such a way that efficient breaches (i.e. those increasing social welfare) would be promoted. The default remedy of expectation damages was justified on this cognition. Nowadays, more and more suspects and critiques are raised against the so called simple efficient breach model. The aim of this paper is to re-sketch the theory of efficient breach and to compare the consequences resulting from economic analysis with the remedy rules of the Common European Sales Law (CESL). It is proposed that the doctrine of efficient breach has …

Efficient Breach In The Common European Sales Law (Cesl), Wenqing Liao

Wenqing Liao

In the classic economic theory, it is suggested that contract law should be structured in such a way that efficient breaches (i.e. those increasing social welfare) would be promoted. The default remedy of expectation damages was justified on this cognition. Nowadays, more and more suspects and critiques are raised against the so called simple efficient breach model. The aim of this paper is to re-sketch the theory of efficient breach and to compare the consequences resulting from economic analysis with the remedy rules of the Common European Sales Law (CESL). It is proposed that the doctrine of efficient breach has …

Border Searches In The Age Of Terrorism, Robert M. Bloom

Robert Bloom

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have …

Al-Libi And Detention At Sea, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Increase Quota, Invite Opportunities, Improve Economy: An Examination Of The Educational And Employment Crisis Of Undocumented Immigrants And Individuals From Abroad, Brittany Fink

Brittany Fink

No abstract provided.

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

The Problem Of Risk In International Criminal Law, Mark Summers

Mark Summers

This article explores the question of attribution of liability for international crimes via doctrines predicated on risk or recklessness. It traces the development of risk attribution from the Tadic case, the first decided by the International Crminal Court for the Former Yugoslavia, to the Lubanga case, the first decided by a Trial Chamber of the International Criminal Court (ICC). It argues that because of the inherent difficulty in holding senior political or military leaders responsible for the conduct of subordinates, liability for risky or reckless conduct is necessary if international criminal courts are to avoid impunity. Nonetheless, the development of …

Can Self-Regulation Work? Lessons From The Private Security And Military Industry, Daphne Richemond-Barak

Daphne Richemond-Barak

Various efforts have been undertaken in recent years to clarify the legal framework governing the outsourcing of security and military functions to private actors. While national and international legislation have made little progress, self-regulation has advanced steadily. The article provides the first normative assessment of self-regulation in the private security and military industry – and as such offers interesting insights for other industries that are transnational in reach and under-regulated by domestic, regional, and international law. Though industry critics tend to deplore the normative 'softness' of self-regulation and its voluntary nature, it appears to have shifted behavioral norms and triggered …

Enhancing Human Rights Through European Integration: How Recent Litigation Before The European Court Of Human Rights And The Court Of Justice Of The European Union Has Advanced European Aslyum Law, Clara Presler

Clara Presler

Recent case law from the two European courts charged with protecting human rights -- the European Court of Human Rights and the Court of Justice for the European Union -- reveals mutual influence that has enhanced protection of asylum seekers. The two courts’ willingness to engage in the other’s legal reasoning has resulted in rapid development in the areas of eligibility for asylum protection, detention of asylum seekers, and the Dublin II Regulation. This interplay has occurred despite the fact that the courts are not formally bound to each other, and each employs different procedures, mandates, and substantive law. In …

The Supreme Court Of Canada's Decision In Ezokola And The Harmonisation Of Article 1f(A) Of The Convention On The Status Of Refugees With International Criminal Law, Alan W. Freckelton

Alan W Freckelton

Canadian appellate courts have historically taken a very wide view of when there are “serious reasons to believe” that a person has committed the kinds of offences envisaged by Article 1F(a) of the Convention. In particular, they have taken the view that, in some cases at least, mere membership of a particular group is sufficient to exclude a person from protection under the Convention. However, in Ezokola v Canada (Citizenship and Immigration) the Supreme Court has attempted to reconcile the requirements for responsibility for war crimes and crimes against humanity at international criminal law, and the requirements for exclusion under …

Taxing Indirect Transfers: Improving An Instrument For Stemming Tax And Legal Base Erosion, Wei Cui

Wei Cui

Numerous countries (e.g. Canada, Australia and Japan) tax foreigners on the gains realized on transfers of interests in foreign entities that invest directly or indirectly in real estates in these countries. In the last few years, actions taken by tax authorities in India, China, Brazil, Indonesia and other non-OECD countries have highlighted the possibility of taxing a broader range of “indirect share transfers” by foreigners. This Article argues taxing indirect transfers can have vital policy significance in countries where foreign inbound investments are actively traded in offshore markets: it not only deters tax avoidance, but may also stanch “legal base …

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution, Jessica S. Peake

Jessica S Peake

International criminal procedure is characterized by a fundamental structural shift in the allocation of power between the actors in a criminal trial – the judges, Prosecution and defense - away from that traditionally ascribed under an adversarial system and towards the power distribution structure more common to the inquisitorial system. By looking at the Statutes and RPEs of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), it is possible to identify varying degrees of power shifts in each court: across each we see a …

Integrating African Markets Into The Global Exchange Of Services: A Central African Perspective, Regis Y. Simo

Regis Y. Simo

Services liberalisation has gradually become very important for growth in developed and less-developed countries alike and can, as such, be seen as development prospects for sub-Saharan Africa where numerous economic integration attempts are stories of repeated failures. Despite the abundant literature on PTAs, however, little attention has been given to Central Africa Economic and Monetary Community (CEMAC) as a trade bloc. This is an attempt to address that dearth

At a time when “boosting intra-African trade” is gaining currency on the continent, this article tests the compatibility of the potential CEMAC economic integration agreement (EIA) against the background of the …