Comparative and Foreign Law Commons^™

Invasive Seaweed: Global And Regional Law And Policy Responses, Meinhard Doelle, Moira Mcconnell, David Vanderzwaag

Articles, Book Chapters, & Popular Press

We consider law and policy responses to invasive seaweeds at global and regional levels. Key global regimes considered include the 1982 United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, the Ramsar Convention and the Bonn Convention on Migratory Species. Contributions from the Food and Agriculture Organization and the International Maritime Organization are also considered in the global context. At a regional level, examples of efforts in North America and Europe are offered to illustrate challenges and opportunities for regional responses to invasive seaweeds. We conclude with law and policy recommendations, most notably the need …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

If I Had A Hammer: The Oecd Guidelines For Multinational Enterprises As Another Tool To Protect Indigenous Rights To Land, Heather Bowman

Washington International Law Journal

As developing countries embrace market economies, a primary source of investment is in the form of foreign direct investment through action by Multinational Enterprises (“Multinationals”) inside a country’s borders. Activity by a Multinational is often regulated only by the host country, which may place minimal restrictions on it for fear of losing investment. This places the country’s people and environment at risk. Indigenous peoples affected by poorly planned or managed development have no opportunity to change plans before they are enacted, and have little chance to obtain reparation for damages suffered. A way of addressing this lack of participation in …

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

The Social Obligation Of Property Ownership: A Comparison Of German And U.S. Law, Rebecca Lubens

ExpressO

Although both Germany and the United States have strong market-based economies characterized by rigorous protection of private property rights, the two countries have different conceptions of land ownership based on distinct notions of the individual’s place in society. Whereas property protection under the U.S. Constitution emphasizes individual freedom, German law explicitly considers the individual’s place in and relationship to the social order in defining ownership rights. The property clause in the German Grundgesetz (The Basic Law, the German constitution) contains an affirmative social obligation alongside its positive guarantee of ownership rights. The U.S. Constitution, on the other hand, does not …

British National Parks For North Americans: What We Can Learn From A More Crowded Nation Proud Of Its Countryside, Federico Cheever

ExpressO

England and Wales contain twelve national parks coverings more than 10 percent of their landscape. Although these parks are managed as national resources, the vast majority of the land within their borders is privately owned. Although they are managed to preserve their natural qualities, they contain farms, towns and roughly 300,000 people. They contain nothing North Americans would consider wilderness. Although recognized national assets, nationally funded, they are administered by boards made up largely of local representatives. Since passage of the National Parks and Access to Countryside Act of 1949, the British have managed to develop a national park system …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

Korean Environmental Regulations: Ready To Take On One Of The World's Largest Private Real Estate Development Projects?, Joon H. Kim

Washington International Law Journal

The South Korean government designated three new Free Economic Zones in an effort to become the financial and logistical hub of Northeast Asia. One of these zones, the Incheon Free Economic Zone (“IFEZ”), will encompass 209 square kilometers of completely new development on reclaimed land and is said to be the biggest real estate development project currently in the world. China started using economic zones much earlier in history and although China experienced economic benefits, it also experienced severe environmental degradation in its highly successful special economic zones. Similarly tremendous economic growth will result from the influx of foreign direct …

Diminishing Borders In Trade And Terrorism: An Examination Of Regional Apllicability Of Gatt Article Xxi National Security Trade Sanctions, Eric J. Lobsinger

ILSA Journal of International & Comparative Law

The concept of "war" has undergone extensive usage in U.S. foreign policy since the terrorist attacks of September 11,2001.

An Unfair Advantage: Comparing The International Court Of Justice To A Form Of Adr And Why It Was Inappropriate For The Court To Issue An Advisory Opinion In The Case Of Israel's Separation Fence, Mimi Trenk

Cardozo Journal of Conflict Resolution

This Note will begin with a concise background of the ArabIsraeli conflict. It will then explain the three arguments presented to the Court as to why it should have declined to exercise jurisdiction and the Court's response. It will explore the similarities of non-binding arbitration, as a form of alternative dispute resolution, and the Advisory Opinion. It will then examine whether, in the interests of justice, it was appropriate for the Court to issue the opinion, even though it is considered to be non-binding. This Note will examine the Israeli Supreme Court as the proper forum to enforce the rights …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Treading Deep Waters: Substantive Law Issues In Tuvalu's Threat To Sue The United States In The International Court Of Justice, Rebecca Elizabeth Jacobs

Washington International Law Journal

In 2002, in response to the United States' refusal to ratify the Kyoto Protocol, the Pacific island nation of Tuvalu, vulnerable to submersion due to the rising sea level, threatened to bring a lawsuit against the United States in the International Court of Justice for damages to its island. Outside of various jurisdictional issues that may preempt the suit, Tuvalu's suit will likely have a number of substantive law problems. Tuvalu must show not only that the United States is unlawfully causing the island damage, but also that it has a right to future damages that have yet to occur. …

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Comparative Land Use Law: Patterns Of Sustainability, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Land use scholars and practitioners in the United States trace the development of domestic land use law to 1916, when the City of New York adopted the nation's first comprehensive zoning law, and then on to 1926 when the U.S. Supreme Court declared zoning constitutional in Euclid v. Ambler Realty. Some have studied European influences stemming from late nineteenth century regulations and the urban design principles imported from the great cities of the era. Others know about the catastrophic London fire of 1666 and how it transformed society's understanding of why individual property rights, to some degree, must be subject …

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.

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 …

Invasion Of The Clones: Animal Cloning And The Potential Implications On The Future Of Human Cloning And Cloning Legislation In The United States, The United Kingdom, And Internationally, Adrienne N. Calhoun

ExpressO

Cloning is an area of science that changes daily; with advances being made constantly. This technology has caused great controversy in the United States and across the world. The issue has raised religious, ethical, technical and legal concerns. This paper is broken into four parts in order to best address the complex area of cloning technology. Part one will be a review of the history of the science of cloning and the history of animal cloning. Part two will be a discussion of the risks and benefits of cloning. Part three will address ethical and religious concerns surrounding human cloning. …

The Right To Trial By Jury In Environmental Cost-Recovery And Contribution Actions: United States V. England, Jonathan L. Mayes

ExpressO

No abstract provided.

Year In Review: The International Environment Community Celebrates A Series Of Successes But Laments The One That Got Away, Ronald C. Smith, Tikkun A. S. Gottschalk, Jeff Timmerman, Jennifer Ringsmuth

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Book Review: Assessing The Cec's Impact On Nafta, Robert C. Hale

Florida State University Journal of Transnational Law & Policy

No abstract provided.

State Regulation Of Cruise Ship Pollution: Alaska's Commercial Passenger Vessel Compliance Program As A Model For Florida, Stephen Thomas Jr.

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Dam Controversy: Does The Endangered Species Act Apply Internationally To Protect Foreign Species Harmed By Dams On The Colorado River?, Bridget Kellogg

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Applying International Trade Remedy Laws In The Caribbean: A Framework For Protection, Vasheist V. Kokaram

ILSA Journal of International & Comparative Law

What happens in the WTO is part of a broader pattern of neocolonialism in the global economy. This has two strands. The first is the self-interest of the major powers; their close ties with multinational companies ... and their willingness to use their political and economic strength to achieve their ends ...

Regulatory Diversification And The Monitoring State: The Direction Of Environmental Regulation In Taiwan, Beth E. Kinne

Washington International Law Journal

Rapid industrialization in Taiwan in the latter half of the twentieth century resulted in dramatic increases in industrial pollution and municipal waste, leaving few places on the small island spared from severe pollution. Public pollution protests in the 1970s and 1980s both contributed to and increased with the liberalization of Taiwanese society. With the end of martial law in 1987 and subsequent creation of the Environmental Protection Agency, Taiwan adopted a command and control regulatory scheme that achieved limited success. From the 1980s onward, the Taiwanese government came to rely upon the participation of a greater number and variety of …

Where The Oregon Trail Meets The Silk Road: Why China's Path To Sustainability Should Bypass Oregon, Samuel A. Rodabough

Washington International Law Journal

With a substantial population and continued exponential economic growth, China is perceived as exerting ever-increasing pressure on its natural environment. The concept of sustainable development has been posited by many in the international community as a means of overcoming China's bleak environmental outlook, while simultaneously preserving its economic prosperity. However, because of widespread disagreement as to the precise nature, scope, and practical application of sustainable development, the concept remains elusive and has proven difficult to implement. In its most basic form, sustainable development seeks to simultaneously meet environmental, economic, and social needs. With respect to these needs, China has affirmed …