Law Commons^™

The Isis Crisis And The Development Of International Humanitarian Law, Johan D. Van Der Vyver

Johan D van der Vyver

ABOUT THE ARTICLE This article identifies the rules of international humanitarian law that have a bearing on the Israeli offensive in Gaza. It first of all attempts to establish whether or not Israel remained an Occupying Power after its disengagement from the Gaza Strip in 2005. If due to the control Israel continued to exercise over border crossings, electricity and water supplies and the like, Israel is found to be de facto in occupation of Gaza, the Hamas responses would qualify as a war of liberation, which in terms of Protocol I to the Geneva Conventions of 12 August 1949 …

Conditions In U.S. Treaty Practice: New Data And Insights Into A Growing Phenomenon, Cindy G. Buys

Cindy G. Buys

The U.S. Senate often adds various types of conditions, also known as reservations, understandings, and declarations, to its advice and consent to multilateral treaties. The ability to add conditions to a treaty likely increases the number of States willing to join a treaty because it allows States to modify their treaty obligations to address domestic concerns. However, the use of conditions also has the potential to undermine the integrity of the treaty by allowing States to opt out of important legal obligations and to create legal uncertainty regarding treaty obligations and relationships. This article examines U.S. treaty practice with respect …

“Ya Me Canse”: How The Iguala Mass Kidnapping Demonstrates Mexico’S Continued Failure To Adhere To Its International Human Rights Obligations, Justin A. Behravesh

Justin A. Behravesh

This article addresses the recent kidnapping and disappearance of forty-three college students from Iguala, Mexico (the “Iguala Mass Kidnapping”), under the lens of the International Convention for the Protection of All Persons from Enforced Disappearance (the “Convention”). While Mexico’s reporting documents on its compliance with the Convention paint a positive picture of how that country is adhering to Convention, any notion that the country was in compliance with the Convention was completely shattered through the Iguala Mass Kidnapping. The article concludes that the actions of state officials during the Iguala Mass Kidnapping violated articles one, six, and twenty-three of the …

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Legal Education As A Rule Of Law Strategy: Problems And Opportunities With U.S.-Based Programs, David Pimentel

David Pimentel

Education can be powerful force in building the rule of law in developing countries and transitional states—especially in light of its power to influence culture and its ability to sustain meaningful change. Building a more effective system of legal education is a long term project, however, and a difficult sell given the way rule of law reform gets funded. Shorter term impacts are possible, however, through U.S.-based educational opportunities, which therefore present a compelling opportunity for rule of law promotion. Addressing short-term legal education deficiencies with U.S.-based education can contribute to a vision for the future of legal education in …

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Gandhi’S Nightmare: Bhopal And The Need For A Mindful Jurisprudence, Nehal A. Patel

Nehal A. Patel

No abstract provided.

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 …

International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson

Michael Anderson

Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.

This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …

Freedom From Food: On The Need To Restore Fdr’S Vision Of Economic Rights In America, And How It Can Be Done, Evgeny Krasnov

Evgeny Krasnov

Within the U.S. policy discourse, it has long been taken for granted that the body of human rights law does not—and should not—include economic rights, which include the right to adequate food, shelter, and health care. This is an irony of history, since the origins of modern-day economic rights law lie in the policies advocated by the U.S. President Franklin Delano Roosevelt.

This Article argues that (1) the common justifications for neglecting economic rights are not sound; (2) there is a pressing need to recognize economic rights in the United States; and (3) the best way to do so is …

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

"Roads? Where We're Going We Don't Need Roads:" The Transformation Of The Roadless Rule Into An American Carbon Sink, Sam W. Gieryn

Sam W. Gieryn

Abstract “Roads? Where We’re Going, We Don’t Need Roads:” The Transformation of the Roadless Rule into an American Carbon Sink. By: Sam Gieryn Climate change continues to become a global problem, but for the United States, part of the solution is closer than we think. In the search for an effective means to halt the adverse effects of global warming, scientists discovered the benefits of carbon sequestration from forests. The United States contains nearly 750 million acres of forest, which this paper proposes the nation uses to combat climate change. In 2001, the Clinton Administration took notice of the importance …

International Convergence On Flags Of Convenience, Ryan M. Mott

Ryan M Mott

In maritime law, a ship follows the laws of the flag that it flies. Ship owners, however, are not constrained to fly the flag of the country that they are from. Instead, they can choose what flag they will sail under, and thus have their pick of laws among all of the countries in the world. Much like the corporate “internal affairs rule” of common law countries that regulates a business at its place of incorporation instead of its primary source of business, a vessel is governed by the country whose flag it flies, regardless of where the ship conducts …

Holy Mackerel! How A Small Country Of Fishermen Pushed The Boundaries Of Free Press, Ryan M. Mott

Ryan M Mott

This paper is about the Icelandic Modern Media Initiative (“IMMI”), a legislative proposal enacted by the Icelandic parliament on June 16th, 2010.

The IMMI was designed to promote transparency in reaction to an economic crisis and failed gag order that shook Icelanders’ faith in their government.

The parliament set out to create the most journalist-friendly nation in the world, a “media haven,” and did so by grabbing some of the most protective media statutes in the world.

The reformations include, inter alia, protection for the reporter’s privilege and source anonymity, protection for third-party communicators between reporters and sources, whistleblower protection, …

The Shifting Interpretations Of Interpol’S Article Three, Kyle Rene

Kyle Rene

Article Three of INTERPOL’s Constitution prohibits INTERPOL from undertaking “any intervention or activities of a political, military, religious or racial character.” Notwithstanding this prohibition, INTERPOL itself has taken an active role in pursing the perpetrators of one of the most politically, religiously, and racially charged forms of crime, terrorism. The following Note discusses how INTERPOL has rationalized its pursuit of terrorists in light of Article Three’s mandate. The Note concludes by reassessing the value of Article Three, showing how, although Article Three has been interpreted to afford INTERPOL the latitude to pursue terrorists, it nonetheless represents an effective means of …

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

Intimate Matters: Discovery Avenues Towards Straight Women's Human Rights, Alice Bullard Ph.D.

Alice Bullard Ph.D.

“Intimate Matters: Discovering Avenues toward Straight Women’s Human Rights” © Alice Bullard, Ph.D., J.D. expected May 2012 email: ab654@law.georgetown.edu Abstract: This paper demonstrates the need, and the legal right under international human rights law to support, for developing and teaching intimate strategies for women’s emancipation. The international human rights agenda largely overlooks heterosexual sex is a facet of women’s subjugation; we argue here to correct that oversight, to integrate an understanding of the potential of heterosexual sex to (re)produce women’s subordination, and to sketch a program to combat this tendency. At issue is not overt sexual violence or sexual acts …

Building The Global Green Patent Highway: A Proposal For International Harmonization Of Green Technology Fast Track Programs, Eric L. Lane

Eric L. Lane

As governments around the world recognize the importance of development and implementation of clean technologies in mitigating climate change, they have looked to patenting procedures as a mechanism to promote and accelerate green innovation. In particular, many national intellectual property offices have implemented programs that provide expedited examination of patent applications directed to green technologies. These green patent fast track programs vary widely in their rules, both in eligibility requirements and process parameters. Due to these disparities, it can be costly and time consuming for applicants and their patent attorneys to select which green technology patent fast track programs to …

Internation Equity And Human Development, Anthony C. Infanti

Anthony C. Infanti

In their 1972 essay “Inter-nation Equity,” Richard and Peggy Musgrave added a new dimension to discussions of tax equity by viewing the concept through an international lens. In this chapter written for a collection of essays on tax law and development, I add a new dimension to the Musgraves’ discussion of tax equity by laying a critical lens over their international lens and considering how tax equity might further human development.

In this chapter, I argue that it is time to shed the unbending focus on the economic dimension of people and the tax “exceptionalism” that unduly constrain both the …

A New And Improved Energy Reality—It's No Pipedream, Daniel Hare

Daniel Hare

In this paper, I propose an original policy solution to the complicated issue of permitting and regulatory review for cross-border natural resource projects to allow for a smoother, quicker approval process for certain types of projects. I have specifically designed this new procedure so as to focus on political compromise and minimize political partisanship, while instead concentrating on achieving results. By modifying the current regulatory standard to a more streamlined model, deserving cross-border natural resource projects can swiftly gain approval, yet environmental, economic, foreign policy, national security, and other significant concerns will still receive the attention and thorough evaluation they …

Moral And Legal Dilemma: A Legal Analysis Of The Criticisms Leveled Against Arizona Sb 1070, Michael K. Marriott

Michael K Marriott

The Support Our Law Enforcement and Safe Neighborhoods Act, more commonly known as Arizona SB 1070, is a recently passed bill targeting unlawful immigration. Touted to be the strongest piece of immigration legislation passed in America's recent history, the bill has come under fire on state, national, and international levels.

This paper begins by setting the stage for why SB 1070 was passed, and what legislators sought to accomplish. It then provides a basic overview of the bill, with an emphasis towards its more controversial aspects. From there it groups together certain classes of criticisms that have been publicly leveled …

Ubiquitous Trio: China, Wto And United States Of America, Yuliya Kostelova

Yuliya Kostelova

No abstract provided.

Deference To Administrative Agencies In Interpreting Treaties: Chevron, Charming Betsy, And Global Decisionmaking, Catherine E. Sweetser

Catherine E Sweetser

This Article examines how national courts in the United States should deal with domestic agency interpretations of international treaties. Under Chevron deference, a court defers to an agency interpretation where it believes that Congress when passing a statute intended to delegate lawmaking power to the agency. The Charming Betsy canon assumes that Congress also has an interest in complying with international norms and in binding the United States to follow international rules. In both these canons, Congressional intent becomes the touchstone. I first examine whether international law itself, as a rule of treaty interpretation, suggests that domestic agencies should receive …

Teaching Negotiation To A Globally Diverse Audience: Ethics, Morality And Cultural Differences, David Allen Larson, Vanessa Seyman

David Allen Larson

"Teaching Negotiation to a Globally Diverse Audience: Ethics, Morality, and Cultural Differences" (by David Allen Larson and Vanessa Seyman) This is a short article discussing the challenges of teaching negotiation, and also the challenge of actually negotiating, in a globally diverse environment. Issues of ethics, morality and culture can surface quite quickly when teaching and negotiating in a multicultural environment. The article builds upon our recent experiences as participants in the Second Generation Global Negotiation conference held Istanbul, Turkey. The article provides examples of how cultural and language differences can impact both actual negotiations and negotiation teaching and provides suggestions …

Pirates Versus Mercenaries: Purely Private Transnational Violence At The Margins Of International Law, Ansel J. Halliburton

Ansel J. Halliburton

Because of the recent surge in piracy emanating from the failed state of Somalia, the world’s navies have focused unprecedented resources and attention on the Gulf of Aden and Indian Ocean. Despite a few successes, this military might has largely failed to reverse the tide of piracy. Shipping companies have begun to hire armed private guards to protect their vessels and crew where the public navies cannot. But should private force take a larger role? Should shipping companies hire mercenaries to go on the offensive against pirates? Does, or should, international law allow them to do so? This paper surveys …

‘Why Do We Try International Criminals?’ A Retributivist Theory Response, Noam Wiener

Noam Wiener

This article examines the foundational justifications for the practice of punishing perpetrators of international crimes. It argues that creating such a foundation is important for the formation of a coherent and consistent criminal process. The article then presents two theories that justify punishment in national systems – retributivist and consequentialist. This presentation includes a critique of these theories and of models that try to combine the two. At its conclusion this presentation raises severe moral concerns with the application of the consequentialist justifications. Next, the article examines the express opinions of the various ad-hoc international tribunals and scholarly writing on …

Opening Up To International Arbitration, Yuval Miller, M. Anderson Berry

M. Anderson Berry

Leah D. Harhay, Managing Editor of the World Arbitration & Mediation Review, provided key insights as an expert on this subject, having co-authored a forthcoming article on the topic with Professor David D. Caron of U.C. Berkeley Law School.

Due to an accident of legislative history, for the past decade California law has barred foreign attorneys from participating in international arbitrations located in the state, and erected significant barriers to such participation by attorneys from United States jurisdictions outside California. A previous proposal that would lower these barriers—endorsed by the California State Bar—failed to gain sufficient political momentum to rouse …

Parallel Importation, Patent Right Exhaustion, And Strategies For Navigating The Evolving Landscape, Bryan J. Su

Bryan J Su

Parallel importation provides a means for purchasers and consumers of commercial goods protected by intellectual property law to acquire products for prices lower than the price set by intellectual property right holders. This form of “legal piracy” of grey-market goods is conducted by legally purchasing products in jurisdictions with lower prices, which allows distributors to import products into jurisdictions with higher prices, leading to a competitive advantage. The doctrine of patent exhaustion, especially when applied internationally, allows this practice by giving authorized purchasers of products unfettered ownership and control over the specific articles they acquire.

Analysis of how the United …

Contracting On Standard Forms For International Sales Of Goods, Angelo Giampietro Avv.

Angelo Giampietro Avv.

In the international sales of goods adopting standard form contract and Incoterms can result in an advantageous manner of contracting. We will try to critically consider the extent to which it can facilitate parties to such agreements. First of all, because standard form contract is a result of experience and legal expertise in the field, which include events that can happen, leading to reasonable solutions, the use facilitate trading ensuring predictability, consistency, and increased efficiency in business relations; saving time and money in negotiating efforts and drafting individual contracts. It is the application of the principle of freedom of contract …

Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega

Matt A Vega

This article argues that transnational corporate bribery is actionable under the Alien Tort Statute of 1789 (ATS) as a violation of the law of nations. In the early years of the Republic, bribery of a foreign official was commonly understood to violate the law of nations. Today, bribery is occasionally mentioned in passing as a precursor to human rights violations, but the bribe itself is seldom analyzed as a potential violation of the law of nations. However, the Second Circuit Court of Appeals recently allowed “aiding and abetting” to proceed as a customary international law violation under the ATS in …