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Articles 151 - 180 of 372
Full-Text Articles in International Law
Regulating Access To Traditional Knowledge And Genetic Resources: The Disclosure Requirement As A Strategy To Combat Biopiracy, Paul Kuruk
San Diego International Law Journal
The objective of this Article is to examine the disclosure requirement as a measure to enhance the protection of traditional knowledge and genetic resources. Section Two illustrates the negative effects of biopiracy drawing on selected cases from Africa, India and the Americas while Section Three describes the international regime governing access to genetic resources and related traditional knowledge including rules on prior informed consent, mutually agreed terms and the fair and equitable sharing of benefits. Section Four traces the evolution of the obligation to disclose from provisions in national model laws and a draft treaty on folklore prepared by WIPO, …
A Comparison Of The Jurisprudence Of The Ecj And Efta Court On The Free Movement Of Good In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfue And Article 11 Of The Eea?, Jarrod Tudor
San Diego International Law Journal
Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …
Protecting Equine Welfare And International Consumers Of Horse Meat: A Proposal For The Renewal Of Horse Slaughter In The United States, Natalie Anderson
Protecting Equine Welfare And International Consumers Of Horse Meat: A Proposal For The Renewal Of Horse Slaughter In The United States, Natalie Anderson
San Diego International Law Journal
This Comment will address how the de facto ban on horse slaughter and the shift in destination of American horses bound for harvesting has had unintended negative consequences for equine welfare and for the safety of international consumers of horse meat. Part II analyzes the role of the horse in American history, and how this has shaped horse slaughter legislation and the international trade of American horse meat. Part III examines regulations and guidelines for the humane transportation, handling, and slaughter of horses in the United States, Canada and Mexico, and demonstrates how poorly-framed legislation, a lack of formal agreements …
Using The Ability To Host World Events As Incentive To Procure Voluntary Anti-Discrimination Legal Reform, Brett M. Crowell
Using The Ability To Host World Events As Incentive To Procure Voluntary Anti-Discrimination Legal Reform, Brett M. Crowell
San Diego International Law Journal
The International Olympic Committee (IOC) and Federation Internationale de Football Association (FIFA) have the power to effect global change. Countries vie for the honor of hosting world events such as the Olympic Games and the World Cup because of the prestige and the economic and political gains those events provide. The IOC and FIFA can and should use the incentive of hosting one of these events to procure legal reform in myriad humanitarian equality issues such as sexual orientation, gender, and race. These organizations can prompt this change by requiring that host countries uphold a set of minimum legal standards …
A Matter Of National Security: Whistleblowing In The Military As A Mechanism For International Law Enforcement, Roslyn Fuller
A Matter Of National Security: Whistleblowing In The Military As A Mechanism For International Law Enforcement, Roslyn Fuller
San Diego International Law Journal
[T]his article examines the impact that external whistleblowing can have on a state’s compliance with international law. Part III looks at some of the complications that disclosing international law violations raises for the broader legal system, in particular, the expertise that a whistleblower of this type should be expected to have in the area of international law, and judicial reactions to defences related to the exposure of international law violations. Part IV identifies some trends based on this analysis and what they might mean for external whistleblowing on international law violations in the future.
‘My Name Is Khan’ And I Am Not A Terrorist: Intersections Of Counter Terrorism Measures And The International Framework For Refugee Protection, Neha Bhat
San Diego International Law Journal
This paper is structured as follows: Part II traces the development of international instruments on the definition of terrorism, terrorist activities and “incitement to terrorism.” Part III first explores the normative framework of exclusion under the 1951 Convention and how the RSD procedure has undergone a notional shift, with exclusion considerations becoming more central. The section will then look at the provisions of Article 1F of the 1951 Convention, which contain the exclusion clauses and also discuss incorporation of terrorism exception to the asylum law framework in the United States. Part IV concludes with the proposition that the dangers of …
Samsāra To Nirvāna: What Would It Mean To Actually Free Tibet?, Leah Marie Shellberg
Samsāra To Nirvāna: What Would It Mean To Actually Free Tibet?, Leah Marie Shellberg
San Diego International Law Journal
For Mahayana Buddhists, samsara literally means “wandering-on,” but in theory, it refers to the cyclical nature of birth and re-birth characterized by suffering that a Buddhist must break out of in order to achieve nirvana, a state free of suffering. Since the occupation and incorporation of Tibet into the People’s Republic of China (“China”) in the late 1940s and early 1950s, the Tibetan people have experienced a far more intense form of metaphorical samsara at the hands of the Chinese administration. The term “genocide,” coined by Raphael Lemkin in the wake of the Holocaust, combines the ancient Greek word “genos” …
Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt
Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt
San Diego International Law Journal
In a 2005 press release by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), Chief Prosecutor Carla Del Ponte stated “[t]he debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicised . . . I am much more concerned about the victims of war crimes and their families, and I appeal to you to make the victim aspect of any legal process a priority.” Despite this stated dedication to war crimes victims and their families, the ICTY’s Trial Chamber (“Chamber”) recently acquitted two state security officials …
Increased Franco-British Military Cooperation: The Impetus, Its Results, And The Impact On International Humanitarian Intervention, Eva Gramyk
San Diego International Law Journal
[T]his Article addresses the current legal framework of humanitarian intervention. Section III examines previous attempts at international military cooperation by the United Nations, NATO, EU, and bilateral arrangements, Section IV considers the scope and implementation of the Treaty between France and the UK. Finally, Section V analyzes the interplay of international law and the bilateral military treaty in recent international humanitarian interventions.
Admissible Or Inadmissible: The Role Of Formally Codified Rules Of Evidence As A Safeguard In Mexico’S Developing Adversarial System, Connie Dang
San Diego International Law Journal
[T]his Comment begins with a brief history of Mexico’s political framework, including an introduction to its civil law tradition, the positivist values present in its legal framework, and the previous criminal procedure reforms that took place before the current 2008 constitutional reforms. It is important to understand the challenges that the previous—and unsuccessful—constitutional reforms faced in order to appreciate the drastic scope of the current changes to Mexican criminal procedure. Part II will address the role of the United States in its relationship with Mexico relationship during the implementation of the 2008 constitutional reforms. As Mexico’s direct neighbor, the United …
Partners Or Rivals In Reconciliation? The Ictr And Rwanda’S Gacaca Courts, Leo C. Nwoye
Partners Or Rivals In Reconciliation? The Ictr And Rwanda’S Gacaca Courts, Leo C. Nwoye
San Diego International Law Journal
A major question for post-conflict governments to consider is how best to shape reconciliation efforts. This Article examines two transitional justice mechanisms that were utilized in Rwanda’s post genocide era and assesses their contributions to reconciliation. The two principal approaches which emerged in the Rwandan context were the establishment of International Criminal Tribunal for Rwanda (ICTR), via the international political community whilst grassroots efforts within Rwanda were channeled through the gacaca court system. While each of these systems, though unintended and incoherent hybrid justice strategies, possessed strengths and weaknesses, this legal pluralist structure nevertheless yielded positive reconciliation results.
The Article …
The United States Versus Japan As A Lesson Commending International Mediation To Secure Hague Abduction Convention Compliance, Chandra Zdenek
The United States Versus Japan As A Lesson Commending International Mediation To Secure Hague Abduction Convention Compliance, Chandra Zdenek
San Diego International Law Journal
Under the current domestic resolution of Convention disputes, courts must choose winners and losers. With the option of international mediation, courts would be more inclined to return children to their States of habitual residence promptly because those courts would be assured of their citizens’ safety abroad. Such safety could be satisfied through a wide range of mediated agreements. Successful implementation of international mediation in Hague Abduction Convention proceedings would thus significantly improve compliance, replacing the current “black or white” judicial approach with a more flexible, opportunistic system in which any combination of colors is possible.
Partnering With Despots And Failed Regimes: Rogue Banking As A Primary Violation Of International Law, Joel Slawotsky
Partnering With Despots And Failed Regimes: Rogue Banking As A Primary Violation Of International Law, Joel Slawotsky
San Diego International Law Journal
Today, criminals can transfer enormous sums from a bank in nation A to an account in nation B with a mouse click. Allowing rogue banking to constitute an international law violation will enable direct actions against financial institutions for international law violations and raise the profile of those institutions that engage in the practice.
This Article does not propose that isolated incidents of providing financial services should be considered a violation of international law, but rather that rogue banking should be defined in the context of serial partnering with international law violators. Part II outlines the pervasive role global financial …
Anglo-American Dissent From The European Law Of War: A History With Contemporary Echoes, Jeremy Rabkin
Anglo-American Dissent From The European Law Of War: A History With Contemporary Echoes, Jeremy Rabkin
San Diego International Law Journal
These episodes in the history of international humanitarian law deserve to be recalled. They may challenge contemporary dogmas. They remind us that, just below the surface, claims for “humanitarian” principle remain disputable and uncertain, even in today’s world. What “everyone agrees” may not be right. It may not even be what everyone—even everyone of relevant experience and moral seriousness—actually agrees upon.
The exposition here proceeds in six parts. Part II describes the contemporary setting of the legal issue, in the “Basic Rule” of Additional Protocol I, highlighting that this rule has no counterpart in earlier conventions on the law of …
Natural Law As Part Of International Law: The Case Of The Armenian Genocide, Fernando R. Tesón
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 …
The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey
The Limits Of Custom In Constitutional And International Law, Michael D. Ramsey
San Diego Law Review
This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension …
Shame, Memory, And The Unspeakable: The International Criminal Court As Damnatio Memoriae, Michael Blake
Shame, Memory, And The Unspeakable: The International Criminal Court As Damnatio Memoriae, Michael Blake
San Diego Law Review
The first [part] will discuss two ways of looking at the court and why the conventional justifications of punishment might not be adequate to justify what the court is doing. The second will examine the issue of the politically unspeakable and argue that the court’s mandate might indeed be the responsibility of making certain ideas and persons politically shameful. The final Part will try to give some justification for the claim that this mandate might give rise to a justification for the court’s existence. On the account I provide here, even if the court could not be justified with reference …
Wrongful Death And Survival Actions For Torts In Violation Of International Law, Alastair J. Agcaoili
Wrongful Death And Survival Actions For Torts In Violation Of International Law, Alastair J. Agcaoili
San Diego Law Review
This Article aims to make sense of this neglected area of ATS law. I contend that the salient issue in these deceased-victim cases is not whether the nonvictim plaintiffs have standing to sue but rather whether they have a viable cause of action in the first place. Standing and cause of action concepts have an uneasy relationship in law. Although the distinction between constitutional standing and cause of action inquiries is well established, the division is less clear where, as here, standing doctrine is used to define a plaintiff’s eligibility to bring suit. Indeed, reliance on standing terminology in this …
Mexico And The Law Of The Sea: Contributions And Compromises. Book Review, Michael Reed
Mexico And The Law Of The Sea: Contributions And Compromises. Book Review, Michael Reed
San Diego International Law Journal
Much valuable scholarly material has been published on the United Nations Convention on the Law of the Sea, often referred to simply as “UNCLOS” or “The Constitution for the Oceans.” The focus of that scholarship has usually been on interpreting the Convention’s 320 separate Articles and substantive Annexes. Such sources are, of course, critical to individuals seeking to comply with the law of the sea or sovereigns charged with enforcing it.
Inequities In Corporate And Securities Law: Disabling The Exploitative Chinese Corporation And Charting A Path To International Commercial Accountability, Jonathan P. Schmidt
Inequities In Corporate And Securities Law: Disabling The Exploitative Chinese Corporation And Charting A Path To International Commercial Accountability, Jonathan P. Schmidt
San Diego International Law Journal
This article seeks to illuminate these issues and provide a roadmap for the U.S. federal and state legislatures to come together to protect the U.S. investor from the type of accounting fraud and stock misinformation that was the impetus behind enacting the Sarbanes-Oxley Act of 2002. First, this article will discuss the legal backdrop and legislative policy behind U.S. laws such as SOX and its enforcement mechanisms, and the ability for shareholders to bring securities class action derivative actions for financial fraud. This article will also discuss trade secrets laws, criminal extradition treaties, international enforcement of judgments, and elucidate the …
Explaining The Progression Of The Rights Of Same-Sex Couples In South America, Daniel De La Cruz
Explaining The Progression Of The Rights Of Same-Sex Couples In South America, Daniel De La Cruz
San Diego International Law Journal
A trend of rights advocacy has recently developed in the international community. Organizations dedicated to the principle of advancing the rights of historically under-represented and oppressed social groups have proliferated around the globe. The growth of the gay rights movement in recent years has resulted in the expansion of civil liberties afforded to same-sex couples. The movement has gained significant success in symbolic expression. Even without much knowledge of the movement, one typically associates a rainbow flag, the Greek letter lambda, and the word “pride” with the effort. Unfortunately, the movement has not achieved comparable substantive success. Same-sex couples continue …
Drawing The Line Between Competing Interests: Strengthening Online Data Privacy Protection In An Increasingly Networked World, Lori Chiu
San Diego International Law Journal
This article seeks to elucidate these issues and provide a roadmap for the U.S. government to create unified federal laws to provide the private sector with specific protocols regarding use and dissemination of consumer personal information. First, this article will provide an explanation of the U.S.’s current sector-by-sector approach to regulating personally identifying information and will provide a case study of the Federal Trade Commission’s (“FTC”) enforcement action against a social networking site in 2011 as one example of the FTC’s recent efforts at regulating online privacy. Next, this article will analyze the U.S.’s current challenge of judicial enforcement of …
Foreword, Kyle M. Bird
Foreword, Kyle M. Bird
San Diego International Law Journal
The topics of the articles range from marriage equality in South America, how China-based corporations exploit U.S. investors, and how the U.S. can strengthen data privacy protection. The rise of marriage equality for same-sex couples continues to march forward in the twenty-first century. In our global economy, policing foreign corporations operating on domestic soil involves multiples hurdles that require proper navigation. In addition, with the rise of the Information Age, an increasingly cyber-connected world requires protection through vigilant legal oversight.
Improper Deportation Of Legal Permanent Residents: The U.S. Government’S Mischaracterization Of The Supreme Court’S Decision In Nijhawan V. Holder, Michael R. Devitt
Improper Deportation Of Legal Permanent Residents: The U.S. Government’S Mischaracterization Of The Supreme Court’S Decision In Nijhawan V. Holder, Michael R. Devitt
San Diego International Law Journal
The purpose of this Article is to draw attention to the government’s misinterpretation of the central holding in Nijhawan v. Holder and how it has led to the improper dilution of evidentiary standards in removal proceedings when determining the $10,000 threshold loss requirement under section 101(a)(43)(M)(i) of the INA [hereinafter “M(i)”]. Section II of this article provides a brief doctrinal overview and summary of my proposed procedural methodology; sections III and IV provide essential background information regarding the Supreme Court’s important pre-Nijhawan opinions and the inconsistent methods circuit courts have applied when calculating the monetary threshold under the fraud or …
An Analysis Of The Legal Status Of Cia Officers Involved In Drone Strikes, Donna R. Cline
An Analysis Of The Legal Status Of Cia Officers Involved In Drone Strikes, Donna R. Cline
San Diego International Law Journal
This Article introduces international humanitarian law as the applicable legal standard, and develops the distinction between international and non-international armed conflict. Section II will define the key elements used to determine whether a situation of hostilities rises to the level of an armed conflict: the intensity of the conflict and the organization of the parties. Furthermore, this section will analyze the idea of internationalized armed conflict and examine the standard for determining when an attack by an armed group may be attributed to a State. Section III of this article describes the different categories of actors found in situations of …
A High Seas Requirement For Inciters And Intentional Facilitators Of Piracy Jure Gentium And Its (Lack Of) Implications For Impunity, Jonathan Bellish
A High Seas Requirement For Inciters And Intentional Facilitators Of Piracy Jure Gentium And Its (Lack Of) Implications For Impunity, Jonathan Bellish
San Diego International Law Journal
Around 2005, maritime piracy made a troubling resurgence three quarters of a century after a consensus had been reached that the age of piracy had permanently ended. Yet piracy returned in a slightly different form, with pirates relying more on land-based facilitators than their historical counterparts. Maritime piracy’s reappearance made ripe for consideration the question of whether a facilitator of maritime piracy must be physically present on the high seas while facilitating in order to be subject to universal jurisdiction. This Article undertakes an analysis of the text, statutory context, history, and policy impetus behind UNCLOS art. 101 as it …