International Law Commons^™

Symposium: Address By Donald Yap, Donald Yap

Connecticut Journal of International Law

The study of legal theory is now agreed to be an important component in the study of law. The profession benefits from practitioners who know more than just rules of law. We need lawyers who are able to understand the function of law in society and who can advocate appropriate change to meet the changing needs of the community.

Debt-For-Nature Swaps In Latin American Countries: The Enforcement Dilemma, Laurie P. Greener

Connecticut Journal of International Law

Debt-for-nature swaps link concerns regarding the environment and third world debt in order to confront and focus international attention on both crises.' Debt-for-nature swaps respond to these interests by adapting the ideas of debt-for-equity swaps 2 to create programs that enable developing countries (DCs) to retire a small portion of their foreign debt while simultaneously protecting their undeveloped land.

This comment explores the factors that frustrate the inclusion of traditional enforcement mechanisms in debt-for-nature swap agreements. It explains the basic theory and practice of debt-for-nature swaps, and presents a comprehensive overview of the Latin American ecological and debt crises, and …

Panel 4: Questions And Answers

Connecticut Journal of International Law

No abstract provided.

Comparative Assessments Of Freedom, Alan Ritter

Connecticut Journal of International Law

Some of our most salient political debates turn on how we compare freedoms. Is the United States the freest country in the world? If not, which countries are freer? Do Eastern Europeans have more or less liberty, now that they are governed by non-Communists? Does a successful struggle for independence give a nation more freedom than it had under foreign rule? Would a proposed law, such as one that required health insurance, extend liberty or curtail it? We want very much to answer questions like these, because it is a matter of first importance to know which social arrangements are …

Legal Interpretation In China, Kong Xiaohong

Connecticut Journal of International Law

For the last one hundred years, China has undergone vast social changes during which Chinese society has received and absorbed many ideas from abroad. Some scholars believe that even the laws currently in effect in China contain elements from the structures and ideas of the Romano-Germanic Legal Family. This Western influence has to a large extent provided a foundation upon which the socialist legal system developed.

However, such an analysis would be too simplistic. Notwithstanding the Western influence, China had its own ideas of how to administer society by means of law. The Chinese had created a legal system, different …

Medieval Treaty Obligation, Allen Z. Hertz

Connecticut Journal of International Law

Twentieth-century international law places special emphasis on the treaty as a legal source and insists that treaty obligations are legally binding. More than a decade ago, the late Clive Parry taught Cambridge University students that the nineteenth-century treaty was binding in honour alone. He also argued that before the First World War publicists and diplomatists excluded treaties from the ambit of international law which, he said, was then conceived to be primarily customary. This paper on the middle ages is the first part of a larger project testing the validity of Parry's thesis through an examination of treaty obligation in …

Panel 1: Questions And Answers

Connecticut Journal of International Law

No abstract provided.

Legal Theory: The Most Challenged Course In The Law School Curriculum, Wang Chenguang

Connecticut Journal of International Law

Law is not something new in China. It is generally believed that the history of Chinese law spans more than four thousand years.1 But in terms of a modern concept of law and a modern legal system, law is really something new: something the Chinese people have started to reevaluate and treat as a newly-found treasure. Now, the people are striving to establish law as a new device or mechanism to run the country after more than two thousand years of feudal society, and the disaster of the "Cultural Revolution." By examining their past experience and comparing their development with …

Legal Theory In The Law School Curriculum - Myth, Reality, And The Singapore Context, Andrew B.L. Phang

Connecticut Journal of International Law

Legal theory, often associated although not always coincident with the subject entitled jurisprudence,1 is a topic that is generally abhorred by the average student in the Anglo-American common law world, its pursuit lying, in the main, within the province of law school professors. I do not intend to controvert this rather alarming proposition, at least insofar as the Singapore context is concerned. Accepting the reality of it, however, does not entail consigning legal theory to the rarefied atmosphere of myth and conjecture; nor does it condemn us to attempting nothing to change it. Indeed, in this essay, I argue why …

What Is Legal Theory And What Is It Doing In The Curriculum? A View From Contracts, Robert Birmingham

Connecticut Journal of International Law

'Everyone maximizes utility.' This claim needs interpretation, because it looks filled with content, but really is innocuous, a tautology, nothing to get upset about. It means merely that one's behavior invariably maximizes some function. As Samuelson's imperative, "[C]herchez la maximization, ' 2 suggests, often it is an interesting task and something of an art to recover the function from the behavior. I offer three examples of maximizing, eliminating purpose by degrees.

The Importance Of Philosophical Perspectives To The Judicial Process, C. G. Weeramantry

Connecticut Journal of International Law

The process of judging is the most solemn and difficult task to which a lawyer may be called. There is no doubt as to the integrity and dedication of generations of common law judges who have kept high the reputation of the judiciary, nobly discharging the solemn duty entrusted to them. In the words of Justice Holmes, ". . . in the judges' half of our common work, the will at least is not wanting to do every duty of their noble office; . . . every interest, every faculty, every energy, almost every waking hour is filled with their …

An Unprincipled Search For Principle In The Act Of State Doctrine: W.S. Kirkpatrick & Co., Inc. V. Environmental Tectonics Corp, Int'l, Jeffrey N. Nolan

Connecticut Journal of International Law

The act of state doctrine is a judicially-created rule of decision that precludes United States courts from questioning the validity of foreign sovereign acts. The doctrine has also been interpreted to preclude inquiry into the motivations behind sovereign acts, on the theory that such inquiry would inevitably impugn the validity of those acts. In W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., Int'l,' the United States Supreme Court held that cases requiring inquiry into sovereign motivations should not be precluded by the act of state doctrine.

This note first reviews the history and various considerations underlying the act of …

Symposium: Comparative Legal Theory: A Meeting Of East And West: Introductory Remarks, Jeremy F. Mathews

Connecticut Journal of International Law

I am very pleased indeed to have been invited to provide the opening address for this conference on "Comparative Legal Theory: A Meeting of East and West." The topics to be discussed in the course of the next few days cover a wide range of important issues, and I am particularly happy that the co-ordinators of the Conference have been able to bring to Hong Kong as contributors such an impressive array of distinguished and internationally well-known jurists and scholars.

Individualism, Equality, And The Possibility Of Rights, David Campbell

Connecticut Journal of International Law

In this paper I want to put forward a defence of egalitarianism in political philosophy against the currently extremely powerful attacks made upon it by neo-liberalism, attacks which seem to have been confirmed emphatically by the disintegration of existing communism. Argument over equality as a political good has been made to seem almost disreputable1 by the general acceptance of the neo-liberal opposition of individualism and equality2 and the identification of individualism with freedom.3 In a two-pronged assault, equality is represented as being antithetical to the freedom which follows from economic success in the provision of wealth4 and the freedom which …

Comparative Constitutional Fundamentals, Richard S. Kay

Connecticut Journal of International Law

If by legal theory we mean considered reflection on the nature and sources of law, no field of law more insistently engages questions of legal theory than constitutional law. Constitutional law regularly involves the application of rules that are fundamental in the sense that they control and authorize other law but are, themselves, neither controlled nor authorized by any other law. The interpretation and elaboration of those rules necessarily requires attention to the very basis of a legal system, to the stuff that makes law law.

This aspect of a legal system is evident from the familiar regression which legal …

Analysis Of The Sino-British Joint Declaration And The Basic Law Of Hong Kong: What Do They Guarantee The People Of Hong Kong After 1997?, Patricia Homan Palumbo

Connecticut Journal of International Law

In 1997 Hong Kong will become a Special Administrative Region of the People's Republic of China (PRC), and will therefore cease to be a colony of the United Kingdom. The people of Hong Kong have been promised both autonomy and capitalism for fifty years by the Chinese and British governments. The promises of these two governments are embodied in the Joint Declaration, which is best understood as a treaty between the People's Republic of China and Great Britain.' China has additionally promulgated and enacted the Basic Law, which is a statute of the People's Republic. The purpose of the Basic …

The Theory Of The State In The Third World And The Problem Of Constitutionalism, Yash Ghai

Connecticut Journal of International Law

The purpose of this article is to try to provide some explanation of why it has proved so hard to establish constitutionalism in many developing countries, particularly those in Africa. I do this principally by examining the nature of the state in these countries and drawing implications from such nature for a system of governance. I point to the specificity of the contingencies of governance in these countries by discussing the conditions and ideologies which produced, and now sustain, constitutionalism or the rule of law in the west. There is a danger in this method of drawing unwarrantably sharp contrasts, …

Legal Skill And Legal Virtue, A. M. Hol

Connecticut Journal of International Law

It is an important feature of civilization that power is regulated. In modern societies, law has an important function in this regulation. However, power is difficult to regulate. Power always seeks for a way out of its controlled domain. This means that law is under continuous pressure. So, we must be alert to preserve the valuable edifice of law, to the extent that it acts as a control of power.

Though it is everyone's responsibility to support and maintain legal institutions, I think lawyers have a special task here. To fulfill this task, legal teaching has to provide them with …

Panel 2: Questions And Answers

Connecticut Journal of International Law

No abstract provided.

The Reality Of Jus Cogens, Jordan Paust

Connecticut Journal of International Law

In a delightful read on jus cogens, Professor Tony D'Amato has "thingified ' ' 2 jus cogens as the Superman of norms, if only to question the power of such an heroic creation. He applauds "the wisdom of a preemptive rule,"' speculates about certain examples,4 and provides an I-know-it-when-it's-senseless-or-unimaginable test' that should provide guidance for all who happen to think like those who use the test. Actually, he has made a telling point, however indirectly, and has provided insight into the answer to the second of his three searching questions: "[h]ow does a purported norm of jus cogens arise?"

Symposium: Address By Hugh C. Macgill, Hugh C. Macgill

Connecticut Journal of International Law

I ran into one of my academic lords and masters in Connecticut last week, who hoped I would be at a meeting of some dull sort on Monday. I told him I would be detained elsewhere. He said, "Where?" I said, "Hong Kong." He said, "Why?" I told him, "Conference, comparative legal theory." "Why are you doing that?," he asked. I replied, "Well, it's an idea that some of us cooked up scribbling on a napkin at the Regent Bar in Hong Kong a little over a year ago. It seemed sort of fun so we thought we would do …

Panel 1: Introduction, Mark Weston Janis

Connecticut Journal of International Law

No abstract provided.

The New "Jamaica Discipline": Problems With Piracy, Maritime Terrorism And The 1982 Convention On The Law Of The Sea, Samuel Pyeatt Menefee

Connecticut Journal of International Law

To an 18th-century seafarer, "Jamaica discipline" represented the temptation to go a-pirating. Far from being the chaos and anarchy represented in the grade B movies of our youth, piracy was a business, and the pirate was as conscious of his obligations and rights as any Mafia capo. For the captains and sailors who crossed the line of legality to go "on the account," 2 the articles of Jamaica discipline - while differing from crew to crew - represented a social contract, indeed a treaty in microcosm, which enabled the business of piracy to thrive.

Today, two centuries later, "Jamaica discipline," …

Book Review: On The Law Of Nations, Mark Weston Janis

Connecticut Journal of International Law

ON THE LAW OF NATIONS. By Daniel Patrick Moynihan.* Cambridge, Mass. & London: Harvard University Press, 1990. 211 pp.

Nauru V. Australia: A Sacred Trust Betrayed?, Ellen M. Fitzgerald

Connecticut Journal of International Law

In May of 1989, the Republic of Nauru, an island nation in the Pacific measuring 8.25 square miles,' filed suit against the Commonwealth of Australia in the International Court of Justice.2 The fundamental legal framework for the Nauruan claim is the 1947 Agreement between Australia, New Zealand and Great Britain, which rendered Nauru a United Nations Trust Territory principally administered by Australia. The factual focus of the pending litigation, however, is an issue which has characterized the relationship between the tiny island and Australia since the early twentieth century; the use, alleged misuse and rehabilitation (or lack thereof) of "certain …

International Law Revisited: Davis V. Davis And The Need For Coherent Policy On The Status Of The Embryo, Dan Fabricant

Connecticut Journal of International Law

In the dozen years since in vitro fertilization (IVF) led to the world's first "test-tube" baby1 and painted a suddenly brilliant horizon for millions of infertile couples, the legal and ethical dilemmas accompanying biotech developments have remained largely overshadowed by the abortion debate that has transfixed the American consciousness since Roe v. Wade.2 When these dilemmas have surfaced, they have illustrated how immensely difficult it is to find principled, policy-oriented solutions to problems that implicate fundamental concerns such as when life begins and, more basically, what constitutes life itself. More importantly, they have served to illustrate the need to re-examine …

The Law Of The Commons: A Framework For The Efficient And Equitable Use Of The Lagrange Points, Lawrence D. Roberts

Connecticut Journal of International Law

Poets are fond of speaking of outer space as infinite. Having a diameter of billions of light years, the vastness of the universe might just as well be described as infinite. As a practical matter, however, space is finite. That portion of the universe which can be touched by mankind given current technological prowess is comparatively minuscule; encompassing (if one is charitable) only our own solar system. Given the limits imposed by the current state of technology and economic realities, the resources of outer space should be construed as exhaustible, and the acts of one spacefaring nation can and often …

Policing The World: The Long Reach Of U.S. Law And The Short Arm Of The Constitution, Mark Gibney

Connecticut Journal of International Law

One of the most noteworthy and troubling aspects of this nation's latest "war on drugs" 1 is how far it has gone in erasing the distinction between what is considered domestic and what is considered international, and also the distinction between law enforcement, on the one hand, and military or national security affairs on the other. In simpler times, we had domestic law enforcement agents who, among other things, sought to prosecute those who violated criminal laws-local, state and federal-related to the use, transportation and manufacturing of controlled substances.' Not only were the officials responsible for ferreting out drug violations …

It's A Bird, It's A Plane, It's Jus Cogins!, Anthony D'Amato

Connecticut Journal of International Law

If an International Oscar were awarded for the category of Best Norm, the winner by acclamation would surely be jus cogens. Who has not succumbed to its rhetorical power? Who can resist the attraction of a supernorm against which all ordinary norms of international law are mere 97-pound weaklings?

To be sure, a critic may object that jus cogens has no substantive content; it is merely an insubstantial image of a norm, lacking flesh and blood. Yet lack of content is far from disabling for a protean supernorm. Indeed, the sheer ephemerality of jus cogens is an asset, enabling any …

Undoing And Redoing Business In South Africa: The Lifting Of The Comprehensive Anti-Apartheid Act Of 1986 And The Continuing Validity Of State And Local Anti-Apartheid Legislation, Lynn Berat

Connecticut Journal of International Law

Foreign investment, direct and indirect, has been of great importance to the South African economy. After World War II, South Africa's cheap labor system attracted billions of dollars in direct foreign investment.' Although the apartheid system of cheap labor was largely responsible for the favorable investment climate,2 the United States government adopted a neutral policy on South African investment by United States companies.' Even the Carter Administration with its foreign policy emphasis on North/South and human rights issues reiterated this position stressing that "[t]he Government should therefore normally avoid measures which would give special incentives or disincentives to investment flows …