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Articles 331 - 360 of 372
Full-Text Articles in International Law
The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski
The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski
San Diego International Law Journal
The purpose of this Article is to discuss the evolution of the alienage jurisdiction statute and the status of overseas dependent territories in light of the recent Supreme Court decision. Part I of this Article will provide a brief historical background of 28 U.S.C. § 1332 and its purpose. Part II will discuss the concepts of the state and statelessness, as well as the role of dependent territories in international affairs. Part III will discuss and analyze the various federal decisions seemingly at loggerheads with each other on the issue of federal jurisdiction over dependent territories. Finally, Part IV will …
Nigeria Since May 1999: Understanding The Paradox Of Civil Rule And Human Rights Violations Under President Olusegun Obasanjo, Philip C. Aka
Nigeria Since May 1999: Understanding The Paradox Of Civil Rule And Human Rights Violations Under President Olusegun Obasanjo, Philip C. Aka
San Diego International Law Journal
This Article seeks to understand why much of the hope for improved human rights has remained unrealized. It has four parts, in addition to this introduction and a conclusion. Part II provides a definition of human rights, the history of these rights in Nigeria, and the machinery that has evolved over the years, all the way up to the Obasanjo presidency, for the enforcement of these rights. Part III describes the practice of human rights in Nigeria before 1999. The section integrates General Obasanjo's role and it points to the legacy of British colonialism in Nigeria as a major factor …
The Unique Jurisprudence Of Letters Of Credit: Its Origin And Sources, Gao Xiang, Ross P. Buckley
The Unique Jurisprudence Of Letters Of Credit: Its Origin And Sources, Gao Xiang, Ross P. Buckley
San Diego International Law Journal
This Article seeks to illumine the legal nature of the letter of credit instrument, and catalogue the various sources of law and rules that can govern it; and, by doing so, render a service to those who must quickly come to grips with letter of credit law. The Article is in two parts. The first part examines the legal nature of the letter of credit by looking at its definition, operation, and history and by comparing it with negotiable instruments and contracts. The second part considers the rules, customs, and regulations governing letters of credit and introduces the two fundamental …
Judicial Review And International Law, Michel Troper
Judicial Review And International Law, Michel Troper
San Diego International Law Journal
According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.
Finding Fundamental Fairness: Protecting The Rights Of Homosexuals Under European Union Accession Law, Travis J. Langenkamp
Finding Fundamental Fairness: Protecting The Rights Of Homosexuals Under European Union Accession Law, Travis J. Langenkamp
San Diego International Law Journal
In tackling the issue of sexual orientation discrimination, the European Union must make significant efforts to conform or, perhaps, eradicate incongruous legislation within Applicant Countries. The difficulty of this endeavor is two-fold: first, in terms of the number and complexity of the laws of each Applicant Country; and, second, in the absence of any detailed and systematic documentation of sexual orientation discrimination within those same Applicant Countries. Compounding, if not confounding, such legitimate endeavors are the inconsistent anti-gay legislation prevalent within the present Member States. The stakes are high for Member States and Applicant Countries alike. Thus, the European Union's …
The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy
The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy
San Diego International Law Journal
This study is divided into two sections. The first section is further divided into two subsections. The first subsection examines the problems in defining emergencies; in the second subsection, we will examine the preconditions required for a valid derogation. The second section determines the Strasbourg machinery for the protection of human rights. This section is also divided into four subsections. Each subsection examines separate case laws from the European Court of Human Rights. Finally, a conclusion will be deduced in the light of the former reviews.
Affixing Blame: Ideologies Of Hiv/Aids In Thailand, Tarik Abdel-Monem
Affixing Blame: Ideologies Of Hiv/Aids In Thailand, Tarik Abdel-Monem
San Diego International Law Journal
This Article focuses on ideologies of the HIV/AIDS epidemic in Thailand, one of many nations where the HIV/AIDS pandemic has reached alarming levels. Not unlike other nations struggling with HIV/AIDS, an epidemic of stigma and blame has developed in Thailand with increasing rates of infection among the population. Understandings of whom to blame for the epidemic, and how to realize appropriate solutions, have likewise developed as the epidemic continues to persist and spread. This Article examines these ideologies and how they are mediated through the lens of popular culture in contemporary Thailand. It attempts to examine the reasoning of such …
Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman
Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman
San Diego International Law Journal
This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …
Politics Without Democracy: A Study Of The New Principal Officials Accountability In Hong Kong, Christine Loh, Richard Cullen
Politics Without Democracy: A Study Of The New Principal Officials Accountability In Hong Kong, Christine Loh, Richard Cullen
San Diego International Law Journal
his Article seeks to discuss a range of issues related to the POAS. These issues include: The "one country, two systems" framework; The background to the introduction of the POAS; The fundamentals of the POAS; The notion of accountability pre- and post-POAS; An evaluation of executive government systems; The issues arising from the implementation of POAS; and, A best practice ministerial model for Hong Kong.
Towards A Solution To The Problem Of The Common Anadromous Stocks Of The North Pacific, Christian C. Polychron
Towards A Solution To The Problem Of The Common Anadromous Stocks Of The North Pacific, Christian C. Polychron
San Diego International Law Journal
The problem of the common anadromous stocks of the North Pacific is currently addressed through a legal regime operating within the framework established by the UNCLOS. This legal regime operates on two distinct fronts, but the externalities and incentives that define a problem of the commons continue to exist on both fronts. On the high seas, inadequate enforcement enables vessels and nations to violate the ban against high seas salmon harvests and to externalize the costs of doing so. Within EEZs, ineffectual bi-national treaties enable nations to which salmon stocks migrate to over exploit salmon stocks that originate in other …
Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter
Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter
San Diego International Law Journal
After looking at the concept of self-determination, its history, meaning, and possible future development in Part II, this Paper will develop two case studies. Part III examines the right of self-determination for the people of Gibraltar, analyzing the relevant U.N. resolutions, agreements, treaties, and legislation that have defined the dispute between Great Britain and Spain. For example, Great Britain has ruled the Rock of Gibraltar for 280 years, primarily using it as a military base; but, today, Spain insists that it did not relinquish absolute sovereignty over Gibraltar to the British by the Treaty of Utrecht in 1713. Part IV …
Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan
Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan
San Diego International Law Journal
This Article examines whether the relationship between publican and patron should or should not produce such an obligation. It also addresses the possible defenses to such a claim in the tort of negligence. Finally, as the matter is not a settled point of Irish law, this Article also attempts to assess the potential approach of its courts, in view of the approach taken by the English courts to the issue and the flurry of academic comment in the wake of a recent Irish settlement. These issues are certain to surface in litigation again. Regardless of the approach taken by the …
"Sinking" The Caroline: Why The Caroline Doctrine's Restrictions On Self-Defense Should Not Be Regarded As Customary International Law, Maria Benvenuta Occelli
"Sinking" The Caroline: Why The Caroline Doctrine's Restrictions On Self-Defense Should Not Be Regarded As Customary International Law, Maria Benvenuta Occelli
San Diego International Law Journal
This Comment will show how the Caroline doctrine came to exist, argue that no real doctrine was created as to an imminence requirement, and show that what is known today as the true Caroline doctrine is really obsolete international law and not a current standard by which to judge the legality of a state's use of force in self-defense.
Authorization To Kill Terrorist Leaders And Those Who Harbor Them: An International Analysis Of Defensive Assassination, Brenda L. Godfrey
Authorization To Kill Terrorist Leaders And Those Who Harbor Them: An International Analysis Of Defensive Assassination, Brenda L. Godfrey
San Diego International Law Journal
The purpose of this Comment is to explore the legal justification for the targeted killing of a terrorist leader as an act of self-defense. In particular, the focus of this Comment will be on the interpretation of the self-defense doctrine under customary international law and the United Nations Charter. First, this Comment will examine the background and common definitions of assassination. Then, the focus will shift to an evaluation of the relevant customary international law and the Caroline doctrine. Next, this Comment will analyze the United Nations Charter, Article 51 as it relates to a claim of self-defense in response …
Civil Litigation As A Means Of Compensating Victims Of International Terrorism, Walter W. Heiser
Civil Litigation As A Means Of Compensating Victims Of International Terrorism, Walter W. Heiser
San Diego International Law Journal
This Article discusses the rules of procedural law that authorize United States courts to enter civil judgments against international terrorists and the foreign states that sponsor them. Somewhat surprisingly, these rules do not make such judgments difficult to obtain. As the Sutherland case illustrates, plaintiffs have already recovered substantial money judgments against terrorist defendants. Not surprisingly, the real difficulties are encountered when plaintiffs seek to enforce such judgments. Private parties have successfully utilized civil litigation as a means of neutralizing domestic hate groups. The question now is whether they can achieve similar success with respect to international terrorists. Success in …
Recent Developments In Wastewater Management In The Coastal Region At The United States-Mexico Border, John H. Minan
Recent Developments In Wastewater Management In The Coastal Region At The United States-Mexico Border, John H. Minan
San Diego International Law Journal
The purpose of this Article is to examine recent developments in the long-standing struggle by the United States and Mexico to cope with managing cross-border wastewater. Two notable legal developments have occurred recently that are fundamental to understanding the situation today. One is legislative, and the other is judicial. Neither has received scholarly comment. The first is the enactment of Tijuana River Valley Estuary and Beach Cleanup Act, which was signed into United States' law in 2000. It signified a significant change in policy by Congress. Prior to the enactment of the Cleanup Act, the international agreement contained in Minute …
The Privileges And Immunities Of The International Criminal Court: Are They Sufficient For The Proper Functioning Of The Court Or Is There Still Room For Improvement, Stuart Beresford
San Diego International Law Journal
[T]o determine whether the ICC has the privileges and immunities necessary to ensure the proper functioning of the organization, this Article will first discuss the historical development of privileges and immunities for international organizations, including the legal foundation of the privileges and immunities of the Court. It will then examine the privileges and immunities of the organization as a legal entity, before turning to the privileges and immunities accorded to the various categories of individuals who have to attend the institution in an official capacity. Lastly, because a number of other categories of individuals play an essential role in the …
Kissinger's World: A Cautionary Tale Through A Cold War Lens, Michael J. Kelly
Kissinger's World: A Cautionary Tale Through A Cold War Lens, Michael J. Kelly
San Diego International Law Journal
Kissinger rightly praises president Bush's call for America to act with humility on the world stage. After an era of triumphalism and arrogance that characterized our conduct of foreign policy in the 1980's and 90's, with Secretary of State Madeleine Albright memorably referring to America as the indispensable nation, a tone of humility is clearly in order. More so now that some of the hatred aimed at this country can be traced to such callousness felt in the Islamic World and the Third World. Although much of this book's impact may have been undermined by the unforeseeable terrorist attacks against …
Regulating Foreign Vessels Under The Clean Air Act: The Case For A Permissible Administrative Interpretation, Dan Lickel
Regulating Foreign Vessels Under The Clean Air Act: The Case For A Permissible Administrative Interpretation, Dan Lickel
San Diego International Law Journal
This Comment will argue that the EPA may regulate the emissions of large sea-going vessels flying foreign flags that enter the territorial sea, contiguous zone, or Exclusive Economic Zone (EEZ) of the United States, under Section 213 of the CAA, notwithstanding conventional and customary Law of the Sea and other international treaties governing vessel source pollution. Part II of the comment presents background material that explains the provisions of the CAA, which mandate the EPA to regulate international shipping vessels. This section also presents the regulatory schemes developed by the IMO and the EPA. Part III evaluates whether the EPA …
Reparations For Slavery: A Dream Deferred, Watson Branch
Reparations For Slavery: A Dream Deferred, Watson Branch
San Diego International Law Journal
When the year began, the prediction was that 2001 was going to be the "Year of Reparations." Both internationally and in the United States, the consensus held that the time had finally come for governments around the world to face up to racism and apologize for the harm brought about by slavery and its aftermath harm in the past, to those long dead, and in the present, to those who, because of the color of their skin, still suffer from racism. Governments were expected to make amends for that harm through restitution and compensation, whether individual or collective. This willingness …
National Missile Defense: Legal & (And) Policy Justifications For Expanding Deterrence & (And) Preventing War In The 21st Century, Michael A. Mccann
National Missile Defense: Legal & (And) Policy Justifications For Expanding Deterrence & (And) Preventing War In The 21st Century, Michael A. Mccann
San Diego International Law Journal
This Comment will argue that National Missile Defense (NMD) is a desirable form of national defense and also compatible with international law. This Comment begins with an exploration of the Anti-Ballistic Missile Treaty of 1972 and its legal significance as it has evolved over time culminating with President George W. Bush's announcement on December 13, 2001 to withdraw from the Treaty. Next, it examines the past, current and future forms of missile defense, including how these forms interplay with international law. In the third section, criticisms of missile defense will be evaluated and established to be unpersuasive, especially in light …
The Continued Viability Of Foreign Sales Corporations (Fscs): An Analysis Of The Wto Decision Declaring Fscs Incompatible With Gatt Trading Rules, Brenda O'Leary
San Diego International Law Journal
Most major trading nations have features in their income tax laws that favor exports. The United States has adopted such a scheme of preferential treatment of foreign income in order to provide incentives for the export of U.S.-produced goods. However, such devices that reduce income taxes for U.S. exporters have been openly criticized by the international community as illegal export subsidies which are incompatible with the General Agreement on Tariffs and Trade (GATT). In fact, the U.S. enacted its current Foreign Sales Corporation (FSC) legislation in the Tax Reform Act of 1984 to conform the Domestic International Sales Corporation (DISC) …
A Proposed Legislative Scheme To Solve The Mexican Immigration Problem, Samuel W. Bettwy
A Proposed Legislative Scheme To Solve The Mexican Immigration Problem, Samuel W. Bettwy
San Diego International Law Journal
This Article proposes a legislative scheme to undo the incentives that Congress has created and perpetuated since the 1960s for Mexicans to live unlawfully in the United States. The main features of the proposed scheme are: (1) the exemption of all family-sponsored immigrant visas from Mexico's per-country quota, (2) a guaranteed percentage of the quota of diversity ("lottery") visas for Mexicans who have no family member or employer who has sponsored their immigration, (3) a waiver of unlawful presence for Mexicans who return to Mexico by a specified deadline, and (4) revocation of the visa petitions of Mexicans who remain …
Not Fade Away: The International Criminal Court And The State Of Sovereignty, Jerry Fowler
Not Fade Away: The International Criminal Court And The State Of Sovereignty, Jerry Fowler
San Diego International Law Journal
Sovereignty concerns were central to the negotiations over the ICC Statute. To be sure, the future court will relate to individuals and States, as well as inter-governmental and non-governmental organizations, in a way that differs from the international institutions created at mid-century. But by designing an institution that must work through and with sovereign States in crucial aspects of its functioning, the ICC Statute presupposes the continued existence of a system based on sovereign States. The Statute's details reinforce the notion that "[d]irectly or indirectly, the entire edifice of international human-rights law is built on state sovereignty." Seen in this …
U.S. Border Partrol Abuses, Undocumented Mexican Workers, And International Human Rights, Jorge A. Vargas
U.S. Border Partrol Abuses, Undocumented Mexican Workers, And International Human Rights, Jorge A. Vargas
San Diego International Law Journal
This Article addresses poignant questions involving Mexican migratory workers, which touch upon issues close to America's pockets and psyche, and to U.S. immigration law and policies. This work advances the thesis that the mistreatment, abuses, and brutal violations inflicted by U.S. Border Patrol agents against Mexican migratory workers are not only offenses or crimes which must not be tolerated, but are also human rights violations. Regardless of the immigration status of undocumented persons, any foreign person in this country deserves to be treated with dignity and respect, and afforded humane treatment, with international human rights principles. This Article [also] explores …
Force Majeure, China & (And) The Cisg: Is China's New Contract Law A Step In The Right Direction, Donald L. Grace
Force Majeure, China & (And) The Cisg: Is China's New Contract Law A Step In The Right Direction, Donald L. Grace
San Diego International Law Journal
This paper is designed to provide the reader with a general understanding of the force majeure clauses of both the old and new Chinese contract laws and their relation to the CISG. Section II will delve deeper into the Chinese concepts of force majeure and historical and moderns beliefs concerning excuse of performance. Section III will analyze the various provisions that apply to a force majeure event within the FECL, namely Articles 24 and 25, as well as the damage provisions relating to a force majeure event. Section IV will analyze Article 79 of the CISG; provisions pertaining to a …
Gamut Trading Co. V. U.S. International Trade Commission: Expanding The Gamut Of Trademark Protection, Sean A. Barry
Gamut Trading Co. V. U.S. International Trade Commission: Expanding The Gamut Of Trademark Protection, Sean A. Barry
San Diego International Law Journal
In the recent case of Gamut Trading Co. v. U.S. International Trade Commission, the Circuit Court of Appeals for the Federal Circuit expanded the trademark protection available under the Tariff Act of 1930. Specifically, the court held that the importation and subsequent resale of goods bearing legally affixed trademarks can infringe the same trademark in the United States, despite the fact that the imported goods are second-hand goods. While the Federal Circuit classifies this case as a gray market case, the fact that this case involved the importation of second-hand goods makes it distinguishable from gray market case law. Additionally, …