International Law Commons^™

Roman Law And Global Constitutionalism, Rafael Domingo

San Diego International Law Journal

The parallel between contemporary issues and Roman history often fascinates and illuminates. In this Article, I argue how Roman law can serve today as an inspiration toward global constitutionalism given it was one of the several sources of inspiration for the American founders. Looking to Roman law helps reduce certain prejudices derived from the current privileging of the sovereign state and the positivist paradigm as the only genuine and possible models for international law. These prejudices constitute an actual hindrance to the right development of global constitutionalism. Global constitutionalism inherently moves beyond sovereignty, nationalism, and positivism. Roman law enables constitutionalists …

Fourth- And Fifth-Generation Warfare: Technology And Perceptions, Waseem Ahmad Qureshi

San Diego International Law Journal

The composition of warfare is changing. There is an increasing transformation in the traditional aspects of waging a war: conventional techniques of warfare are in decline and newer tactics and tools of warfare, such as information warfare, asymmetric warfare, media propaganda, and hybrid warfare, are filling the gap, blurring the lines between combatant and noncombatant, and between wartime and peacetime. The basic framework of modern warfare was elaborated by Carl von Clausewitz in his magnus opus On War. He defined modern warfare between states as “a duel on larger scale,” and explained its purpose as “a continuation of politics by …

U.S. Tax Policy In Light Of Globalization And Growing Inequality, Alanna D'Alessandro

San Diego International Law Journal

The Tax Cuts and Jobs Act significantly reformed the system of taxation in the United States by enacting permanent and temporary provisions to the Internal Revenue Code. These provisions encompass changes affecting U.S. individuals and entities, both domestically and internationally. Claiming that the change would “pay for itself,” the Tax Cuts and Jobs Act intends to stimulate the economy. The large tax cuts may have created short-term economic growth; however predictions suggest that in the long-run, the increased spending and the decline in tax revenue will significantly raise the U.S. budget deficit.

Regardless of Congressional intent, the Tax Cuts and …

Don’T Tip The Melting Pot: A Case Study Of The U.S., U.K., And Denmark’S Use Of Anti-Immigration Laws To Shift Blame For Real Social And Economic Problems To Immigrants And The Economic And Legal Impacts Of Their Use, Nicole Logan

San Diego International Law Journal

This Article consists of four parts that lay the framework and analyze extreme immigration legislation and anti-immigration sentiments in the U.S., U.K., and Denmark. Part I focuses on the history of immigration and anti-immigration sentiments in the three countries. Part II discusses governing laws in the three countries that have received the most attention because of their extreme impact on immigrants. Part III analyzes these laws, focusing on their legal ramifications, discriminatory effects on immigrants, and economic harm. Finally, Part IV explains why these laws reflect an extreme approach to immigration and raise serious legal questions if they are not …

Don’T Google It: The European Union’S Antitrust Parade (“Enforcement”) Against America’S Tech Giants, Mariah Witt

San Diego International Law Journal

This Article details several case studies, each exemplifying the EU’s pro- competition practices versus the American monopoly-like corporations of Google, Microsoft, and Amazon. The EU claims that each of these companies have abused their dominant position in their respective markets. Many companies (including those not listed in this comment) that have faced the EU’s antitrust wrath are merely the successful giants of their field, who should be enjoying their success, not sitting in fear of success’s implications in the global arena. This comment will conclude with a warning to future American corporations on the path to monopoly-like power and status …

Pay Her More! How Sex And Motherhood Play A Role In The Unequal Pay Of Women On The World Stage, Raquel S. Zilbeman

San Diego International Law Journal

“[O]vert pay discrimination between women and men” is what typically comes to mind when one thinks about the gender wage gap. While women often ask for “equal pay for equal work,” gender discrimination is only responsible for a small amount of the pay gap. “The gender wage gap is also about choice and opportunity. . . . [It is] rooted in [global] social norms about women[,] family [and motherhood which constantly change and evolve—making it] much harder to solve.” It is grounded in the way our society has evolved over the last one hundred and fifty years, during which more …

The Regulatory Trajectory Of Synthetic Securitization: A Breakdown Of International Regulatory Environments, Nicolas M. Dillavou

San Diego International Law Journal

The harmful effects on global financial stability that accompanied the 2007-2008 financial crisis (the “crisis”) were largely intensified by loose regulatory practices in the United States’ (U.S.) secondary mortgage market. Accordingly, the harm suffered on a global level warrants a comparative perspective on international securities regulation. This Article will examine several securitization methods in Europe and the U.S. and derive prospective solutions from these existing approaches that have the potential to address undue risks associated with asset-backed securities today.

This Article will initially discuss the history and causes of the subprime mortgage crisis and then discuss the particular difficulties with …

V.20-1 2018 Masthead

San Diego International Law Journal

No abstract provided.

Ip Rights And Indigenous Rights: Between Commercialization And Humanization Of Traditional Knowledge, Julie Yassine

San Diego International Law Journal

The relevance of traditional knowledge is undeniable, but the only question that remains is how to protect it. Does IP law provide adequate and sufficient protection for traditional knowledge? Can it accommodate the particularities of indigenous groups without affecting their aspirations and inspirations? Applying IP law to traditional knowledge is highly contested by indigenous communities, as it can effectively lead to a community’s partial or total commercialization, which requires some efforts to “humanize” it for further adaptation to the context of indigenous rights.

Enforceability: Foreign Arbitral Awards In Chinese Courts, Mo Zhang

San Diego International Law Journal

Enforcement of foreign arbitral awards in China has always been a widespread concern. There is not only a fear of deficiency in the Chinese legal system, but also a disconnection between foreign perception and Chinese reality. Since the nation joined the New York Convention in the 1980’s, China has made efforts to fulfill its treaty obligations. Foreign parties, however, remain skeptical about whether foreign arbitral awards will be fairly enforced in the country.

In 2015, the Supreme People’s Court of China (SPC) issued a judicial interpretation that contains provisions explicitly addressing several confusing and controversial matters on foreign arbitration. In …

For The Game. For The World. But What About For The Workers? Evaluating Fifa’S Human Rights Policy In Relation To International Standards, Haley Christenson

San Diego International Law Journal

This Comment will primarily review the labor trafficking and human rights concerns that arise in host countries of the World Cup, suggest a host for the 2026 World Cup based on candidates’ laws and infrastructure, and suggest changes for FIFA’s current human rights policy to aid in the prevention of labor trafficking in relation to the World Cup.

Can He Do That?: A Constitutional Analysis Of President Trump’S Withdrawal From The Paris Agreement, David Hubinger

San Diego International Law Journal

This Article is structured to give context as to the history of United Nations-sponsored, climate change centered, international agreements from the early 1990s to the present. The Article also shows how the goals and responsibilities placed on the United States as a part of the Paris Agreement may still be realized even without full party membership. Additionally, the Article discusses the structural framework of the Paris Agreement and the significance of its legal classification when deciding how President Trump can leave the agreement in accordance with international law. The Article will also discuss how President Trump’s actions regarding the Paris …

Net Neutrality, Antitrust, And Startups In The European Union, Megan Sacher

San Diego International Law Journal

The problem of internet traffic has now entered the personal sphere for individual users, and has gained attention in popular culture and politics. This was inevitable: from fitness tracking, to sending emails, automated surgeries, social media, and everything in between, more and more is happening on the internet. There are so many people using the internet that controlling the traffic and maintaining manageable speeds for users has become a real problem…For years, the European Union and the United States have found themselves in an uphill battle to maintain the open nature of the Internet, or as it was coined in …

Moving Beyond The Wto: A Proposal To Adjudicate Gmo Disputes In An International Environmental Court, Marguerite A. Hutchinson

San Diego International Law Journal

This Article begins with a brief summary of the scientific basis of creating GMOs and its historic precursors. The second section provides an overview of risks to humans and the environment. The third part of this Article analyzes the arguments put forward by both the United States and the E.U., which have defined the conflict between blocs of countries pushing GMOs abroad and those who persistently reject them. The fourth section evaluates the respective regulatory schemes imposed on GMOs by the United States and Europe, domestically and by international treaty. The success of these systems is evaluated in the fifth …

Policing Against The State: United Nations Policing As Violative Of Sovereignty, Alexandra R. Harrington

San Diego International Law Journal

It is the author's contention that both parties to the policing arrangement-be they individuals, states, or organizations-give up portions of their sovereignty in the creation and maintenance of the police and policed relationship where the police are not serving the state which theoretically guards the policed. Part II of this Article provides a discussion of legal concepts of state sovereignty in international law. Part III examines the role of police in U.N. peacekeeping missions from the first peacekeeping mission entailing policing operations in the 1960s through present day operations. This examination reveals a pattern in the growth and development of …

Tort Reform With Chinese Characteristics: Towards A Harmonious Society In The People's Republic Of China, Andrew J. Green

San Diego International Law Journal

This Article presents an analysis of tort law in China specifically focusing on personal injury tort law. It provides a general background on the role of tort law in society, and then it analyzes the specific laws, regulations, and cases that form the personal injury tort regime, covering both historical and recent laws. The article then explores the forces in society and politics that seem to be behind the new legal rules. It concludes by drawing attention to several steps that may be taken as part of further reform.

Equality In Germany And The United States, Edward J. Eberle

San Diego International Law Journal

This Article will proceed as follows. Part I will describe the methodology and approach of American and German equality law. The constitutional Courts of both countries value equality highly, resulting in strong and well developed jurisprudence. Each of the Courts employ a sliding scale of judicial scrutiny with the degree of scrutiny varying with the trait or personal interest affected by the governmental measure. Strict or extremely intensive scrutiny applies to measures targeting personal traits that especially affect a person's identity, like race, national heritage, or alienage under United States law, and race, sex, gender, language, national origin, disability, faith, …

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

Foreword, Kate Ryzoc

San Diego International Law Journal

The United States has experienced unprecedented change over the last several months: the election of a black President, extreme volatility in the stock market, and the price of a barrel of gas dropping almost $100 in five months. However, these events on U.S. soil remind us how globally connected the world is. The election of Barack Obama caused global celebration. The economic downturn in the U.S. induced Britain, France, and others to execute massive stimulus packages. And when the price of a barrel of gas hit highs and lows, international markets reacted.

These international impacts remind us that the world …

Foreword, Christina M. Nielsen

San Diego International Law Journal

The overwhelming reoccurring theme in this nineteenth edition of the San Diego International Law Journal centers on the international effects of recent domestic political changes in the United States. Whether a compelling factor or working in the background without express recognition, President Trump remains a point of interest in many of the articles published this academic year. Each article is distinct in legal policy and analysis and covers diverse legal topics.

Modern Application Of The Islamic Principle Of Brotherhood: An Assessment Of The Syrian Refugees’ Relocation Solution In Egypt, Shams Al Din Al Hajjaji

San Diego International Law Journal

This Article argues that the Islamic principle of Brotherhood provides a feasible basis to solve the Arab refugee crisis. The Islamic solution is based on relocating Syrian refugees to Egypt. The solution has many positive factors that make it the most promising solution among the various other proposed solutions. The Syrian refugee crisis has been one of the major challenges for many Western countries, who have found themselves between a rock and a hard place, faced with two options. The first option involves agreeing to host the massive waves of refugees, to honor their principles of human dignity and morality. …

Legal Responses To The European Union’S Migration Crisis, Graham Butler

San Diego International Law Journal

The European Union (“EU”) imposes on itself its own constraints in which it performs as an external actor, and yet, there is little acknowledgment of this imposed constraint. It is the post-2015 migration crisis, an unexpected occurrence, which has brought the fields of EU external relation law and EU migration law together. Europe’s external border, on both land and sea, has tightened through legal acts of non-traditional nature, namely, the resort to securitisation and militarisation. Challenges, such as mass irregular migration, require more than just individual responses from a few selected Member States that are directly affected by the issue. …

Regulating Fintech: Lessons From Africa, Anton Didenko

San Diego International Law Journal

Technological innovation in finance (“FinTech”) has been on the rise in recent years, creating new challenges for regulators. These challenges vary significantly depending on the region in question and type of economy, not least because different technologies are applied to tackle different problems. This Article focuses on regulatory frameworks of two leading jurisdictions in terms of FinTech development in Sub-Saharan Africa: Kenya and South Africa. As the developments in the region cannot be analyzed in isolation from the global trends in FinTech regulation, this Article approaches the matter systematically. It starts by clarifying the existing terminology and preparing a comprehensive …

The Uncertain Future Of Australia’S Pacific Solution, Chandra Roam

San Diego International Law Journal

The plight of a refugee is one that many of us will never understand. However, the ugly truth is that there is a global rise in the number of displaced persons seeking asylum. By the end of 2015, the number of displaced persons surpassed post World War II numbers, prompting developed nations around the world to enforce, amend, or implement policies targeted at controlling the flood of refugees at their borders. This Comment examines the policies of Australia, a nation that has had strict immigration policies in place for decades. Specifically, it discusses the Australian stance on refugee migration and …

Crispr/Cas-9 Technologies: A Call For A New Form Of Tort, Kendall Lovell

San Diego International Law Journal

Once relegated to the domains of science fiction, modern day scientists and researchers are poised on the precipice of making genome editing clinically available. Once introduced into a clinical setting the effects of an off-target mutation or germline edit will remain largely unknown until health issues arise later in life or in the following generation. The novelty of the injuries that will arise require a system that is able to balance the interests of physicians with single and multi-generational plaintiffs, while providing a realistic framework for courts to follow. This comment offers a brand-new context that accounts for these needs …

Proxy Access Voting: Evaluating Proxy Access And The Recent Phenomenon Of Corporations Adopting Shareholder Protective Policies, Danielle Vukovich

San Diego International Law Journal

Shareholders hold a financial stake in a corporation, and therefore are often viewed as owners of the corporation and believed to be in control for all corporate actions. However, their powers are circumscribed. Board of directors committees nominate directors to serve the corporation and these directors have the power to select the corporation’s officers. The committees provide shareholders a slate of proposed directors that are voted on and approved at the annual shareholder meeting. Shareholders may also propose their own slate of directors, but this typically requires a proxy contest, which can be expensive due to the costs both associated …

V.19-2, 2018 Masthead

San Diego International Law Journal

No abstract provided.

V. 18-2, Spring 2017 Masthead

San Diego International Law Journal

No abstract provided.

Equitable Apportionment Of Shared Transboundary River Waters: A Case Study Of Modifications Of The Indus Waters Treaty, Waseem Ahmad Qureshi

San Diego International Law Journal

The principle of equitable utilization and the doctrine of equitable apportionment are regarded highly in customary international law for the apportionment of transboundary river waters between upper and lower riparian states. In this regard, the Indus Waters Treaty is an excellent example of the pragmatic implementation of the principle of equitable utilization, as well as of the principles of equity and justice. The treaty allottedthree eastern rivers to India and three western rivers to Pakistan in an attempt to equitably divide the shared Indus River basin and its five tributaries between the neighboring countries. However, India has now expressed an …

The European Union’S Competence On Foreign Investment: “New And Improved”?, Dominik Moskvan

San Diego International Law Journal

The general approach of the EU towards its trade and investment agenda changed in 2006 into a vigorous use of bilateral negotiations as the Union experienced opposition from emerging countries as well as the U.S. The use of bilateral agreements was seen as a reliable instrument to efficaciously realize the Union market power that was in decline. The future erosion of the EUs market position will likely continue and this will contribute to favoring the use of bilateral instead of multilateral trade agreements with the EU. However, as far as competence is concerned, should an investment treaty be signed in …