Comparative and Foreign Law Commons^™

On The Legal Construction Of Ethnic Cleansing, Timothy V. Waters

ExpressO

On the Legal Construction of Ethnic Cleansing

Timothy William Waters, Univ. Mississippi School of Law

Abstract

What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary …

Equal Treatment Of Foreign Shareholders In Transnational Securities Class Action Against A Foreign Issuer—A Chinese Example, Clark Yao

ExpressO

As the world economy and financial markets become increasingly more integrated, cross-boarder securities transaction becomes a daily event. Because Unite States has the world’s largest and arguably most liquid capital markets, it has attracted a significant number of foreign companies to cross-list their stocks in a U.S. stock exchange. Unavoidably, such transactions will not only bring out fortune, but also disputes between transacting parties. Relying on the powerful federal securities law , U.S. investors who have bought or sold such stocks have routinely sued foreign stock issuers through class action when the stock prices went down, alleging their loss is …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Comparative Corporate Governance: Irish, American, And European Responses To Corporate Scandals, Manish Gupta

ExpressO

A comparative review of legislative reactions to corporate scandals such as Enron and WorldCom. This paper examines American, Irish, and European Union legislation meant to deal with regulating corporations.

Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka

ExpressO

This Article examines how secured claims are treated in Japanese business reorganization law, especially in the Civil Rehabilitation Act (Minji saisei ho), which was enacted in 1999 as the new general reorganization regime in Japan. Unlike the U.S. Bankruptcy Act, the Civil Rehabilitation Act does not have automatic stay on secured claims, nor does it allow any modification of secured claims by the rehabilitation plans. However, the Civil Rehabilitation Act has a unique procedure to restrict the rights of secured creditors, which is called “the procedure of extinguishing security interests (tanpo-ken shometsu seikyu tetsuzuki).” This procedure permits a debtor to …

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

All Faculty Scholarship

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper

Washington International Law Journal

The Aboriginal and Torres Strait Islander Commission (“ATSIC”) opened its doors in 1990 with the main objectives of advising the Australian Commonwealth Government (“Government”) on Indigenous policy and providing services for Indigenous communities and individuals. Fifteen years later, with Indigenous living standards still well behind other Australians, the Government deemed ATSIC a failure and abruptly gutted and abolished the Commission. At the same time, the government transitioned to its New Arrangements in Indigenous Affairs program (“New Arrangements”). The New Arrangements are based on two fundamental ideas: better coordination between governments and agencies; and, most important, engaging and empowering Indigenous communities …

Restoration Constitutionalism In The South Pacific, Venkat Iyer

Washington International Law Journal

The dilemmas confronting societies which move from a period of authoritarian rule to liberal democracy have increasingly engaged the attention of academic experts and policy-makers alike. One issue which has received comparatively less notice, however, is the phenomenon of “restoration constitutionalism,” i.e. the process by which the transitional society is sought to be returned to the constitutional order that predated the authoritarian rule. Recent events in Fiji offer a good example of how this process works in practice. This article looks at the relationship between constitutionalism and transitional regimes, and argues that, where the “rupture” in a constitutional order is …

Aids Prevention And The Right To Health Under International Law: Burma As The Hard Case, Rhianna M. Fronapfel

Washington International Law Journal

Many commentators suggest that states have a human rights obligation to prevent the spread of HIV/AIDS within their borders. Specifically, state HIV/AIDS prevention obligations are often premised on the “right to health” contained within many international human rights documents. Other approaches encourage states to implement AIDS prevention measures by emphasizing the detrimental effects of AIDS on economies and national and international security instead. Many commentators who adhere to the health-and-human-rights model, however, reject such other approaches as overly concerned with the interests of developed countries and lacking the ethical focus that underlies health and human rights. Implicit in such arguments …

It's All The Rage: Popular Uprisings And Philippine Democracy, Dante B. Gatmaytan

Washington International Law Journal

Massive peaceful demonstrations ended the authoritarian regime of Ferdinand Marcos in the Philippines twenty years ago. The “people power” uprising was called a democratic revolution and inspired hopes that it would lead to the consolidation of democracy in the Philippines. When popular uprisings were later used to remove or threaten other leaders, people power was criticized as an assault on democratic institutions and was interpreted as a sign of the political immaturity of Filipinos. The literature on people power is presently marked by disagreement as to whether all popular uprisings should be considered part of the people power tradition. The …

Legal Market Liberalization In South Korea: Preparations For Change, Hyung Tae Kim

Washington International Law Journal

South Korea’s World Trade Organization membership requires the “Land of the Morning Calm” to liberalize its legal market. South Korea submitted its proposal for liberalization in the spring of 2003 and planned to begin opening its legal market in 2005. However, disagreements between South Korea and other World Trade Organization members over the scope of liberalization have led to a one-year negotiation period extension, pushing back the planned market opening to early 2007. The Korean Bar Association has strongly opposed liberalization, claiming that liberalization will lead to the foreign domination of South Korea’s legal market. On the other hand, most …

The Current State Of Equity Investments By Foreign Funds [In South Korea] And Related Legal Issues, Hee Chul Kang, Eugene Kim

Washington International Law Journal

On September 15, 2004, the South Korean press gave extensive news coverage to a series of private individual “Question & Answer” session meetings which the Capital Group Companies Fund (“Capital Group”) held with many of the top chief executive officers (“CEOs”) of major Korean corporations. Known worldwide as a top U.S. private equity management company, the Capital Group is currently the largest institutional investor in South Korea. As a major shareholder of large corporations such as Samsung Electronics, the Shin Han Financial Group, SK Group, and Hyundai Motors, the U.S. investment firm invited their CEOs to address questions and seek …

Creating A System For Citizen Participation: How The Nonprofit Sector Can Provide Citizens A Voice In Tokyo's Urban Development System, Nicolas J. Vikstrom

Washington International Law Journal

Recent changes in Japan’s civil society together with the current political and economic environment have created the first opportunity to develop a viable nonprofit sector that represents citizen interests and allows for public participation in Tokyo’s urban development scheme. Tokyo’s urban environment has failed to meet the social and cultural needs of its citizens due to unprecedented economic and industrial growth from the beginning of the Meiji era until the 1990s. Through this extended period of growth, the goal for urban development was solely to increase Tokyo’s economic strength, while social needs were not addressed. While the City Planning Law …

The Use Of Tandem Mass Spectrometry In Newborn Screening: Australia's Experience And Its Implications For United States Policy, Lauren E. Fisher

Washington International Law Journal

In recent years, the United States has drastically increased the number of disorders screened through its newborn screening programs. This increase is made possible by the adoption of new a technology, the tandem mass spectrometer (“MS/MS”), which allows screening of up to thirty disorders from a single drop of a newborn’s blood. However, such rapid expansion of screening raises concerns regarding the purpose of the screening, as well as the current practices in place for obtaining informed consent. Similar expansion in Australia provides a model of one approach to address these difficult questions. As the first country to begin using …

Using International Law More Effectively To Secure And Advance Indigenous Peoples' Rights: Towards Enforcement In U.S. And Australian Domestic Courts, John D. Smelcer

Washington International Law Journal

Over the past three decades, indigenous peoples have effected a remarkable redefinition of their status and rights under international law, giving rise to an emerging distinct customary international law of indigenous peoples’ rights. Though that process is ongoing, the next critical step is enforcing these congealing rights “at home” in the domestic courts of indigenous peoples’ surrounding nations. Australia and the United States provide the most difficult and most revealing contexts in which to explore the possibilities and limitations of this necessary next step. The direct enforcement of the emerging customary international law of indigenous peoples’ rights is not yet …

Prospects For Citizen Participation In Criminal Trials In Japan, Colin P.A. Jones

Washington International Law Journal

A review of The Lay Judge System, by Takashi Maruta (2004).

Form Over Substance: The Inadequacy Of Informed Consent And Ethical Review For Thai Injection Drug Users Enrolled In Hiv Vaccine Trials, Joan M. Doherty

Washington International Law Journal

Acquired Immune Deficiency Syndrome (“AIDS”) has emerged as a health issue of global significance, and clinical research on Human Immunodeficiency Virus (“HIV”) and AIDS has become increasingly international in scope. A clinical trial of a vaccine designed to prevent the spread of the HIV raises important legal and ethical questions because injection drug users who were believed to be unsuitable subjects for study in the United States were singled out for research in Thailand. The protections for human subjects must not be compromised when U.S. pharmaceutical companies conduct research abroad, particularly where clinical trials are conducted in vulnerable populations. U.S. …

Examining A Comparative Law Myth: Two Hundred Years Of Riparian Misconception, Andrea B. Carroll

Journal Articles

This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the …

Australian Insolvency Law And The 1992 Isda Master Agreement—Catalyst, Reaction, And Solution, Christopher J. Mertens

Washington International Law Journal

The reverberations of Enron’s financial collapse were heard on an international scale. Indeed, Enron Australia’s liquidation set off a flood of concern and speculation about the International Swaps and Derivatives Association’s (“ISDA”) model documentation for derivative transactions. A December 2003 opinion of the Supreme Court of New South Wales exposed a flaw in the ISDA 1992 Master Agreement. Two provisions of the agreement operate in tandem, creating a result which operates contrary to the clear meaning of the terms. This volatile interaction of the provisions effectively shifts the risk from the parties to the swap contract to the creditors of …

No Laughing Matter: The Controversial Danish Cartoons Depicting The Prophet Mohammed, And Their Broader Meaning For The Europe’S Public Square, Ruti G. Teitel

Other Publications

No abstract provided.

"Never Again" Promise Broken Again. Again. And Again., Kelly Dawn Askin

Cardozo Law Review

No abstract provided.

Agreeing To Disagree: Cultural Relativism And The Difficulty Of Defining Terrorism In A Post-9/11 World, Sami Zeidan

UC Law SF International Law Review

Paradoxically, in a post-9/11 world where there is an unprecedented international joint response to counter-terrorism, there is still no universal, permanent and comprehensive definition of terrorism. This essay exposes the legal and political issues arising from the tension created between the universal agreement to coordinate counter-terrorism efforts on the one hand, and the proliferation of culturally relativistic definitions of terrorism on the other.

France: Banning Legal Pluralism By Passing A Law, Jessica Fourneret

UC Law SF International Law Review

On March 15, 2004, French president Jacques Chirac enacted a law prohibiting public school students from wearing clothing and insignia that manifests a religious affiliation. The clear aim of the law was to prohibit female Muslim students from wearing headscarves to public schools. Critics of the ban state that wearing the headscarf is a Muslim woman's religious duty, akin to a law she must follow. This article explores the Western system of laws and the conflict between that system and religious belief systems which impose differing sets of laws. The author examines the impossible choice imposed on school-aged children as …

Farmers In The Ip Wrench - How Patents On Gene-Modified Crops Violate The Right To Food In Developing Countries, Peter Straub

UC Law SF International Law Review

Patented gene-modified crop seeds have a growing impact on how farming is done in the countries where they are sold and used. Modem patent regimes make all plants and plant material containing modified gene-material subject to the intellectual property rights of transnational corporations. Farmers are then faced with the choice of either entering into licensing agreements, or becoming patent infringers-with all the legal consequences-by marketing the fruits of their labor. This article examines how socioeconomic rights-especially the right to food as defined by Article 11.2 of the International Covenant on Economic, Social and Cultural Rights (CESCR)-of small-hold subsistence farmers in …

A Comparative Look At The Right To Refuse Treatment For Involuntary Hospitalized Persons With A Mental Illness, Jennifer Fischer

UC Law SF International Law Review

The issues surrounding the legal responsibility of caring for and maintaining a person with a mental illness go back almost 2500 years. There has been considerable debate about the questions of involuntary hospitalization and the right to refuse treatment in the past few decades, especially in North America and Western Europe. As the importance of mental health and rights of persons with mental disabilities take on greater significance internationally, however, the debate is moving to the rest of the world. The objective of this article is to look at the various perspectives in the current debate and at how different …

Russian Web Sites Jeopardize U.S. Users: The Dangers Of Importing Copyrighted Material Over The Internet, James Chapman

UC Law SF International Law Review

Russian web sites offer electronic versions of copyrighted music over the Internet for pennies a song. Protected by international borders and favorable domestic legal constraints, these Russian music distributors sell songs at much lower prices and without anti-piracy protections. The web sites claim the right to sell the music under Russian law, and unknowing purchasers are buying music believing they have finally found a cheap, legal, and moral alternative to domestic vendors and P2P networks. However, common misunderstandings of the copyright law may be placing purchasers of music from these Internet sites in danger of criminal and civil sanctions. This …

Queer Refuge: A Review Of The Role Of Country Condition Analysis In Asylum Adjudications For Members Of Sexual Minorities, Arwen Swink

UC Law SF International Law Review

More than 80 countries around the world have laws criminalizing sexual activity between consenting adults of the same sex. Physical and sexual abuse, harassment, detention, and extortion by police are common means of enforcing these laws. For many LGBT people who have been subjected to or who rightly fear persecution, political asylum may offer hope of protection, but the asylum process is not without its pitfalls. This article seeks to explore some of the difficulties the asylum adjudication process may pose for LGBT people seeking refuge from persecution. Specifically, this article addresses the various ways in which asylum adjudicators in …

The Emergence Of The Hellenic Deliberative Ideal: The Classical Humanist Conception Of Comparative Law, Richard Brooks

UC Law SF International Law Review

Modern comparative law is based upon the failed Enlightenment premise of comparative law as legal science. Awareness of the earlier writings of Hellenic historians, philosophers, rhetoricians, and dramatists suggest that comparative law should be conceived as a process of political deliberation. Herodotus, Thucydides, and Polybius suggest how history frames the choices which comparativists must make. Aristotle and Plato demonstrate how to deliberate about conflicting laws and legal regimes. The rhetorician, Isocrates, argues for rhetoric to be brought to bear on the debates about different legal regimes. The Greek dramatists portray the anguish and regret which necessarily follows the final choice …

Opening Our Classrooms Effectively To Foreign Graduate Students, Lauren K. Robel

Lauren Robel (2002 Acting; 2003-2011)

No abstract provided.

El Convenio Terrorism Nuclear: Seran Clasificados Los Detenidos Como "Combatientes Enemigos" Por Los Estados Unidos?, Heather R. Demner

ILSA Journal of International & Comparative Law

Mientras las imigenes de los recientes bombardeos producidos en ferrocarriles subterfineos y autobuses en Londres el 7 de julio del 2005 aparecen en peri6dicos y estaciones de noticias alrededor del mundo, la comunidad intemacional revive las imigenes atroces de los atentados terroristas del once de septiembre contra las torres gemelas de Nueva York hacidndoles recordar que la amenaza del terrorismo no ha desaparecido.'