Human Rights Law Commons^™

Secrets And Lies? Swiss Banks And International Human Rights, Anita Ramasastry

Vanderbilt Journal of Transnational Law

This Article explores the relationship of Swiss banks and their tradition of bank secrecy to the activities of a particular group of depositors: war criminals and other human rights violators. The Article focuses on litigation brought in U.S. courts by plaintiffs seeking access to Swiss bank deposits made by the Nazis and Ferdinand Marcos. The Article examines the possibility of holding banks accountable under international law for assisting a customer who has committed a serious breach of international law. Part I introduces the role of bank secrecy in the current litigation. Part II describes the Swiss tradition of bank secrecy. …

Ireland's Divorce Bill: Traditional Irish And International Norms Of Equality And Bodily Integrity At Issue In A Domestic Abuse Context, Anthony T. Barnes

Vanderbilt Journal of Transnational Law

On November 24, 1995, the Irish population voted to ease Ireland's constitutional ban on divorce by means of a constitutional amendment. The new amendment and the bill that effectuates it give Irish citizens a limited legal right to end their marriages for the first time in Ireland's history. The limits surrounding Irish divorce consist of a significant waiting period, a living-apart requirement, and a slant toward mediation.

This Note explores the predicaments of abused spouses and the unique risks that Ireland's divorce limitations pose to spousal abuse victims seeking to end their marriages. This Note argues that the limitations of …

... And Justice For All: Normative Descriptive Frameworks For The Implementation Of Tribunals To Try Human Rights Violators, Gautam Rana

Vanderbilt Journal of Transnational Law

With the formation of the Bosnian and Rwandan War Crimes Tribunals, the international community has created a mechanism for the enforcement of human rights law for the first time since the Nuremburg and Tokyo War Trials. The efficacy of these tribunals, however, is in doubt. This Note proposes that only a few human rights are truly universal in nature and can be guaranteed by the international community. Furthermore, the political realities of the international system precludes the use of international tribunals against the more powerful nations of the international community. The Note concludes that by focusing on the human rights …

Preface, Laurelyn E. Douglas

Vanderbilt Journal of Transnational Law

The symposium, HONG KONG'S REINTEGRATION INTO THE PEOPLE'S REPUBLIC OF CHINA: CONSTITUTIONAL ISSUES, POLICY APPROACHES & HUMAN RIGHTS CONCERNS, AND ECONOMIC & LEGAL IMPLICATIONS, was held at the Vanderbilt University School of Law on March 28-29. 1997. Featuring presentations by diverse speakers from a variety of places and perspectives, the symposium addressed a broad range of issues. Topics ranged from comparative constitutional law to human rights and practical business concerns. While differences emerged, it was clear that fully understanding any one area requires knowledge of the others: the viability of markets may well depend upon the validity of documents proclaiming …

Hong Kong's Reintegration Into The People's Republic Of China, Anne M. Seibel, Stacy A. Feld

Vanderbilt Journal of Transnational Law

Every other year, the Vanderbilt Journal of Transnational Law presents a symposium on a current topic in international law and practice. This year's symposium, "Hong Kong's Reintegration into the People's Republic of China: Constitutional Issues, Policy Approaches & Human Rights Concerns and Economic & Legal Implications, was held at Vanderbilt University School of Law on March 28-29, 1997. Our goal was to provide a forum in which leading authorities on Hong Kong and China could come together and discuss constitutional, human rights, legal, and economic concerns surrounding the reintegration of Hong Kong into China.

The results of this Symposium have …

South Africa's 1996 Choice On Termination Of Pregnancy Act, Audrey E. Haroz

Vanderbilt Journal of Transnational Law

South Africa's Bill of Rights is one of the most liberal and elaborate in the world. Consequently, South Africa is at the forefront of defining human rights for individuals, especially women. Concurrently, international law is slowly undergoing a reconceptualization of human rights documents and guarantees to define a more definitive, protective, and pro-active body of rights for women.

By upholding the constitutionality of the 1996 Abortion Act, South Africa can define its own Bill of Rights in liberal terms and ensure that the South African Constitution continues to receive a broad interpretation. A welcome result would be the improvement of …

Women's Rights In International Law, Valerle A. Dormady

Vanderbilt Journal of Transnational Law

This Note contains a detailed review of state responses to the Platform for Action produced at the United Nations' Fourth World Conference on Women. The Author finds that this consensus was reached on most of the proposals outlined in the Platform for Action. Certain proposals, however, regarding reproductive and Inheritance issues, were subject to a great deal of dispute during the drafting of the Platform for Action, and many countries ultimately registered reservations as to these proposals. While the news reports of the Fourth World Conference on Women focused on the lobbying activities of both Islamic countries and Catholic countries, …

Will Hong Kong Be Successfully Integrated Into China? A Human Rights Perspective, Yu Ping

Vanderbilt Journal of Transnational Law

This Article explores the human rights forecast following Hong Kong's reintegration into China. The Article first reviews the British human rights record in Hong Kong, and explains why China was angered by last-ditch British political reform. It then explores the legal framework of Hong Kong, including the Sino-British Joint Declaration and the Basic Law of Hong Kong, and concludes that neither offers significant protection for human rights in Hong Kong. In particular, Chinese state security and state secrets laws are likely to be used to suppress political dissidents, journalists, international organizations, and other "foreign elements" in Hong Kong. The Article …

Selected Bibliography: The Reintegration Of Hong Kong Into China, Audrey E. Haroz, Jonathan R. Smith

Vanderbilt Journal of Transnational Law

The reintegration of Hong Kong into the People's Republic of China (hereinafter P.R.C.) on July 1, 1997, brought together two countries, one capitalist and one communist, under one rule. As evidenced by the variety of perspectives offered at the Vanderbilt Journal of Transnational Law's Symposium on Hong Kong's Reintegration into the P.R.C., there is much scholarly debate concerning this merger and the effect it will have on the people and politics of both countries as well as on the international community.

An earlier version of this bibliography is included in the May 1997 issue of the Journal. This bibliography has …

The Right To Stay, Patrick M. Mcfadden

Vanderbilt Journal of Transnational Law

People often fight for their homes. Once established, homes are vital centers of life, and their threatened loss generates predictable resistance. This Article shows how the human desire not to be moved is protected by the law. Such protection can be found in both U.S. domestic and international law, although the two systems of law vary widely in their approach. Since World War II, international scholars and lawmakers have been deeply concerned with promoting the legal rights of people to leave and return to their own countries. This Article emphasizes a different, but equally important right: the right of people, …

The Marlboro Man In Asia: U.S. Tobacco And Human Rights, Jonathan Wike

Vanderbilt Journal of Transnational Law

In recent years, U.S. tobacco manufacturers have responded to declining domestic consumption by aggressively promoting their products in Asia and other foreign markets. Their efforts have resulted in increased tobacco use and increased health risks in Asia. This Note discusses the legal implications of U.S. tobacco marketing in Asia, particularly the disadvantages faced by Asians who might wish to challenge U.S. tobacco manufacturers in court. The author first describes tobacco promotion In Asia and the limited potential for recovery against U.S. tobacco companies by Asian plaintiffs in their domestic courts. The Note then contrasts the limitations Asian plaintiffs face in …

Patrimonicide: The International Economic Crime Of Indigenous Spoliation, Ndiva Kofele-Kale

Vanderbilt Journal of Transnational Law

In the past two decades, the organized and systematic theft of a state's wealth and resources by its leaders has reached unprecedented levels in developing and less-developed states. Unlike previous acts of embezzlement by political leaders, this new wave of corruption-referred to as indigenous spoliation--involves billions of dollars and causes widespread social and economic devastation. This Article defines indigenous spoliation and presents some examples of this practice. The author describes the inadequacy of domestic law in dealing with the problem and suggests that international law should provide a remedy. Next, the author proposes a framework for holding persons involved in …

Urban Despair And Nietzsche's "Eternal Return:" From The Municipal Rhetoric Of Economic Justice To The International Law Of Economic Rights, Barbara Stark

Vanderbilt Journal of Transnational Law

Urban poverty has had a devastating impact, especially on African Americans in the United States, who have been ill-served by the rhetoric of opportunity. In this Article, the author argues that economic rights must be recognized as rights if the urban poor are even to dream of economic justice. The author uses the writings of German philosopher Friedrich Nietzsche to explain how the past can be reclaimed. Urban poverty must be understood in an historical context. Limiting the inquiry to a domestic historical context not only blinds people to the relationship between domestic and international poverty, and domestic and international …

The United Nations Truth Commission For El Salvador, Thomas Buergenthal

Vanderbilt Journal of Transnational Law

From 1992 to 1993, the author served as one of three Commissioners of the United Nations Commission on the Truth for El Salvador. In this Article, the author describes the process the Commission followed in its investigation of acts of violence that occurred in El Salvador between 1980 and 1991. The Article explores how the Commissioners interpreted and applied their mandate, as well as the problems they encountered in gathering information for the Commission's report. The author relates how the Commission arrived at the important decision to include in its report the names of individuals found to have been responsible …

Provisional Measures In The Inter-American Human Rights System: An Innovative Development In International Law, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

In this Article, Professor Pasqualucci examines the developing jurisprudence of provisional measures in the Inter-American human rights system. Through the adoption of provisional measures, a human rights court may order a state to protect persons who are in danger of imminent death or torture. The author first provides an overview of the Inter-American system of human rights. She then describes the historical background of the jurisprudence of provisional measures in the International Court of Justice and the European human rights system, which served as models for provisional measures in the developing Inter-American system. Finally, she analyzes the use of provisional …

Deportation And Transfer Of Civilians In Time Of War, Jean-Marie Henckaerts

Vanderbilt Journal of Transnational Law

In this Article, the Author discusses the international law prohibiting the deportation and transfer of civilians during times of war. The Author first focuses on Article 49 of the Fourth Geneva Convention, describing its genesis and its character as customary international law. The Author examines several specific instances of illegal deportations in Kuwait, the former Yugoslavia, and the Israeli-occupied territories, and discusses the application of Geneva IV to these situations. He concludes that more should be done to enforce international law prohibiting the transfer of civilians during times of war and to punish states for engaging in massive deportation.

Command Of Sovereignty Gives Way To Concern For Humanity, Christine Ellerman

Vanderbilt Journal of Transnational Law

This Note examines the legality of humanitarian intervention by tracing the historical justifications for nonintervention through modern interpretations of the U.N. Charter. Events leading to the change in the U.N. stance on humanitarian intervention are discussed. The Note also sets out criteria for justifiable intervention. The Note concludes that intervention can be justified to the extent that it is carried out for humanitarian purposes.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace

By James Michael Zimmerman

New York, New York: Quorum Books, 1992. Pp.206.

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Fact-Finding before International Tribunals

Edited by Richard B. Lillich

Irvington-on-Hudson, New York: Transnational Publishers Inc., 1992, Pp. 338.

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International Human Rights Law in the Commonwealth Caribbean

Edited by Angela D. Byre and Bevereley Y. Byfield

Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991. Pp. 398.

In The Wrong Place, At The Wrong Time: Problems With The Inter-American Court Of Human Rights Use Of Contentious Jurisdiction, Michael J. Corbera

Vanderbilt Journal of Transnational Law

The Inter-American region has a history of widespread human rights abuse. To combat this problem the Organization of American States has developed a regional system for the protection of human rights. The system's adjudicatory body is the Inter-American Court of Human Rights (the Court). In recent years the Court has expanded its power through its exercise of contentious jurisdiction. Certain factors, however, that are unique to the Inter-American region weigh against the Court's use of contentious jurisdiction.

Tracing the development of the Inter-American human rights system in general and the Court in particular, this Note evaluates the Court's powers and …

The European Community After 1992: The Freedom Of Movement Of People And Its Limitations, Ricou Heaton

Vanderbilt Journal of Transnational Law

The end of 1992 has attained significance as the time when borders and barriers to the free movement of people within the European Community (EC) should dissolve. This Note examines those actions taken by EC institutions and member states that are determining the nature of this freedom. This Note explains the major EC institutions and the steps they have taken with respect to freedom of movement. This Note also describes the Schengen Convention, an agreement between , eight EC states that provides a blueprint for dismantling internal borders and strengthening external ones. The author discusses how member states' desire to …

Rebirth Of A Nation: The Difficulties Of Transition In Eastern And Central Europe, J. French Hill

Vanderbilt Journal of Transnational Law

The 1980s will go down in history as the Decade of Democracy. Latin America, Europe, and even parts of Africa saw remarkable gains in political pluralism and individual freedoms, but nowhere was this more pronounced than in central and eastern Europe and the Balkans.

As Timothy Garton Ash chronicled in his inspiring essays, The Magic Lantern, the movements of a people from totalitarianism to freedom were remarkably peaceful. Once started, the speed was breathtaking. This dash toward freedom is epitomized in Ash's quip made famous by playwright, turned President, Vaclav Havel: "In Poland it took ten years, in Hungary ten …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

JAPANESE CRIMINAL JUSTICE

By A. Didrick Castberg

New York, New York: Praeger Publishers, 1990. Pp. 153. $42.95.

THE INTERNATIONALIZATION OF HUMAN RIGHTS

By David P. Forsythe

Lexington, Massachusetts; Lexington Books, 1991. Pp. 209.$34.00.

FEDERAL COURTS AND THE INTERNATIONAL HUMAN RIGHTS PARADIGM By Kenneth C. Randall

Durham, North Carolina; Duke University Press. 1990. Pp. 295. $45.00.

ROMAN LAW AND COMPARATIVE LAW

By Alan Watson

Athens, Georgia: University of Georgia Press, 1991. Pp. 328. $50.00

THE U.S. CONSTITUTION AND FOREIGN POLICY

By Victoria Marie Kraft

New York, New York: Greenwood Press, 1990. Pp. 185. $45.00.

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley, Otto Lagodny

Vanderbilt Journal of Transnational Law

This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

Short V. The Kingdom Of The Netherlands: Is It Time To Renegotiate The Nato Status Of Forces Agreement?, Steven J. Lepper

Vanderbilt Journal of Transnational Law

Major Lepper examines an apparent irreconcilability between the NATO Status of Forces Agreement (SOFA) and the European Convention on Human Rights (ECHR) as reflected in the recent Dutch High Court decision of Short v. The Kingdom of the Netherlands. Staff Sergeant Short, a member of the United States Air Force, was charged with the murder of his wife. Under the SOFA, the Netherlands was obligated to surrender Short to the United States. It refused, basing its actions on its adherence to the ECHR and its concerns about the possible implementation of the death penalty in the United States.

The ECHR …

Fighting The War On Drugs In The "New World Order": The Ker-Frisbie Doctrine As A Product Of Its Time, Kirk J. Henderson

Vanderbilt Journal of Transnational Law

This Note analyzes the United States policy of abducting fugitives from abroad to stand trial when an asylum nation refuses an extradition request. The United States has justified this so-called "snatch" authority under the century-old Ker-Frisbie Doctrine. Pursuant to this doctrine, the Supreme Court has refused to examine the means by which a person has been brought before a court. In 1974, however, the United States Court of Appeals for the Second Circuit created a narrow exception that would bar jurisdiction if an accused proved acts of torture, but no defendant has ever met this standard.

Since Ker and Frisbie …

Human Rights In The World Court, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

In this Article, Judge Schwebel reviews the cases of the International Court of Justice and its predecessor, the Permanent Court of International Justice, that have substantial human rights implications. He observes that, while the World Court is not a human rights court in the contemporary sense of that term, since standing in contentious cases is limited to States, it nevertheless has constructively dealt with a number of important issues of human rights, as in its early holding that individuals may be the direct beneficiaries of treaty rights.

The Court has played a notable role in promoting the protection of human …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Taxation in the People's Republic of China

By Jinyan Li

New York, New York: Praeger Publishers, 1991. Pp. 208. $49.95.

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Liberating the Law: Creating Popular Justice in Mozambique

By Albie Sachs and Gita Honwana Welch

Atlantic Highlands, New Jersey: Zed Books, 1990. Pp. 132. $55.00.

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International Fugitives: A New Role for the International Court of Justice

By Barbara M. Yarnold

New York, New York: Praeger Publishers, 1991. Pp. 168. $37.95.

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Effective Lobbying in the European Community

By James N. Gardner

Boston, Massachusetts: Kluwer Law and Taxation Publishers,1991. Pp. xix, 162. $45.00.

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European Human Rights Law

By …

The Legal Implications Of The Refugee Crisis, R. K.L. Panjabi

Vanderbilt Journal of Transnational Law

CLOSING THE DOORS: THE FAILURE OF REFUGEE PROTECTION By David Matas with Ilana Simon Toronto: Summerhill Press 1989

David Matas is a Canadian lawyer who has served on a Task Force on Immigration Practices and Procedures, has participated in the Canadian Council for Refugees, and has spoken publicly on the refugee crisis. He has written a critical, provocative analysis of the response of the Western world to the refugee problem, with emphasis on the policies of the present Government of Canada. His aim is to expose the injustices of the legislative and procedural systems for refugees in Canada. He writes …

International Human Rights Law Concerning Women: Case Notes And Comments, Rebecca J. Cook

Vanderbilt Journal of Transnational Law

This Essay addresses the application of international human rights law to women. Most of the cases addressed in this Essay involve alleged discrimination based on sex or marital status. Professor Cook notes that international, regional, and national courts have applied human rights principles to ensure that women's human rights are upheld, although not always to the full extent originally envisioned under the Universal Declaration of Human Rights. To illustrate this point, Professor Cook reviews cases arising under international, regional, and specialized treaties, including the International Covenant on Civil and Political Rights, and the extent to which such discrimination interferes with …

Conscientious Objection In South Africa: Governmental Paranoia And The Law Of Conscription, Lynn Berat

Vanderbilt Journal of Transnational Law

By the end of 1975, Mozambique and Angola' had gained independence; in 1980, Rhodesia became black majority ruled Zimbabwe.' Although it is currently occupied illegally by South Africa in contravention of both a United Nations Security Council Resolution and an advisory opinion of the International Court of Justice,' even Namibia (also known as South West Africa) will soon become an independent state.' No longer surrounded by a buffer zone of white minority ruled states separating it from black ruled Africa, South Africa stands alone, the last outpost of white supremacy on the continent.

Amidst all of these developments, the South …