International Law Commons^™

Towards A Development-Oriented Multilateral Framework On Competition Policy, Jae Sung Lee

ExpressO

No abstract provided.

Broken Borders: Decanas V. Bica, And The Standards That Govern The Validity Of State Measures Designed To Deter Undocumented Immigration, Joshua J. Herndon

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No abstract provided.

Getting Around The Gatt: Passing Gatt-Legal Legislation To Protect Marine Living Resources, Brad L. Milkwick

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The WTO has been called, among other things, anti-environment. This is due in large part to the position that GATT dispute settlement panels have taken on environment-friendly legislation—such legislation is often struck down as being unduly restrictive of trade and therefore unenforceable under the GATT/WTO agreement. For example, in three seminal disputes that were brought before the GATT (often referred to as the Tuna/Dolphin I, Tuna/Dolphin II, and Shrimp/Turtle disputes), GATT dispute settlement bodies “recommended” against the United States and in favor of the countries which were allegedly engaging in environmentally-destructive practices. This article looks at those recommendations in some …

Scholarly And Scientific Boycotts Of Israel: Abusing The Academic Enterprise, Kenneth Lasson

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No abstract provided.

An Appellate Mechanism For Review Of Arbitral Decisions In Investor - State Disputes: Prospects And Challenges, David A. Gantz

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Current support for such an appellate mechanism is largely derived from Congressional and NGO concerns regarding certain arbitral decisions rendered under NAFTA’s Chapter 11, where questions as to the consistency of tribunal interpretation of investment rules have been raised. Incorporation of such a mechanism or mechanisms in free trade agreements and bilateral investment treaties is effectively required by the President’s 2002 “Trade Promotion Authority.” Negotiation and drafting of an agreement establishing such a mechanism will commence shortly (three months) after the United States – Central America – Dominican Free Trade Agreement enters into force, probably January 1, 2006. The article …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman

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Constitutions have many dimensions. These dimensions include at least the following:

• an economic constitution in the sense of a set of rules for exchange of value and authority,

• an interfunctional constitution that allows for the integration of various social values,

• a political constitution that reflects the cultural and democratic integrity of a group of people,

• a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules,

• a human rights constitution that limits the sphere of governmental authority, and

• a …

Ubi Remedium, Ibi Ius At The Wto, Joel P. Trachtman

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The WTO law of remedies for violation appears incoherent. States that fail to comply with their obligations are subject to WTO-authorized retaliation. First, this retaliation takes the inefficient form of blocked trade by the complaining state. This remedy is unlikely to be useful to developing countries. Second, the amount of trade blocked by the violation is often used as the measure of authorized retaliation. This measure is not necessarily incentive compatible, as it is not necessarily linked to welfare. Thus, its use may result in inefficient breach, or inefficient compliance, with WTO law. Third, only states that engage in dispute …

International Responsibility For Human Rights Violations By American Indian Tribes, Klint A. Cowan

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The American Indian tribes have a unique status in the law of the United States. They are characterized as ‘sovereigns’ that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. They enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and US international human rights obligations. This essay explores this connection. It examines whether the tribes may …

Child Laundering: How The Intercountry Adoption System Legitimizes And Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children, David M. Smolin

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This article documents and analyzes a substantial incidence of "child laundering" within the intercountry adoption system. Child laundering occurs when children are taken illegally from birth families through child buying or kidnapping, and then "laundered" through the adoption system as "orphans" and then "adoptees." The article then proposes reforms to the intercountry adoption system that could substantially reduce the incidence of child laundering.

China's New Automobile Policy Fails To Comply With Its Wto Commitments, Jean Wang

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China enacted a new automobile policy in June 2004 to guide the direction of its automotive industry. However, its new laws create obstacles to foreign car manufacturers that contravene China's promises to the WTO. Moreover, China's ultimate goal is to become the leader into automobile production and is trying to achieve this goal through non-market means.

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

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This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

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Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

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Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Rfk, Day Of Affirmation Speech And Human Rights In America, Stuart Weinstein

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An examination of Robert Kennedy historic Day of Affirmation speech made forty years ago. Is the role he envisioned for the US to play in international affairs and in advancing the cause of freedom and social justice for all humanity relvant in a post-Iraq abu Gharaib world?

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt

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In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt …

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

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This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the abuse …

From International Law To Law And Globalization, Paul Schiff Berman

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International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Thieves In Cyberspace: Examining Music Piracy And Copyright Law Deficiencies In Russia As It Enters The Digital Age, Michael F. Mertens

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The article discusses broadly the music piracy problem in Russia, the current state of Russia’s copyright laws, and how its laws and problems compare to the U.S. and the rest of the world. In particular, the article focuses on music piracy through the Internet and how it has exploded in Russia. One of the websites I target is the infamous Allofmp3.com, which has attracted a large amount of U.S. attention in recent times by consumers as well as lawmakers. The article analyzes the legislative and enforcement deficiencies in Russia that led to the enormous problem with traditional music piracy and …

Is It A Subsidy? An Evaluation Of China's Currency Regime And Its Compliance With The Wto, Matthew R. Leviton

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No abstract provided.

Cultural Relativism In International War Crimes Prosecutions: The International Criminal Tribunal For Rwanda, Ida L. Bostian

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The tension between universalism and cultural relativism lies at the heart of war crimes and war crimes prosecutions. While cultural relativism arguments should never be the basis for ignoring war crimes outside of the West (particularly in Africa), neither should the international community adopt a radical universalist approach that ignores the unique circumstances underlying each war crimes prosecution. The establishment of the ICTR, over the objection of the post-genocide Rwandan government, probably erred on the side of universalism by ignoring the legitimate needs of the Rwandan people. Nevertheless, the ICTR has appropriately adopted a “mild” cultural relativist approach in its …

Anti-Competitive Practices In Service/Investment Markets Used By Korea And Japan, Eun Sup Lee

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This study analysis shows that the anti-competitive practices in the service market of the two countries have almost identical characteristics, even though there are differences in the degree of the criticism against those barriers from their trading partner countries. These practices reflect the policy objectives of both governments to emphasize consumer protection or stability of financial institutes rather than the institutes' competitiveness or operative efficiency, somewhat different from developed western countries. Such policy objectives reflect the overall social and cultural environments of the two countries which stress stability rather than productivity or efficiency of any institute. Considering the over-all economic …

From Pax Mercatoria To Pax Europea: How Trade Dispute Procedures Serve The Ec's Regional Hegemony , Tomer Broude

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The European Union's policies towards the states on its new, post-2004 enlargement, external borders (the European Neighbourhood Policy and the Cotonou project) present complementary yet competing tendencies: the establishment of Pax Mercatoria (the model historically developed in and by the EC itself, wherein international political stability is facilitated by economic interdependence) and the pursuit of Pax Europea (the establishment of a European zone of superior international economic, political and legal influence). The balance between these will ultimately be struck by the cumulative economic, political and social effects of the new legal arrangements. This paper focuses on one issue affecting this …

Taking 'Trade And Culture' Seriously: Geographical Indications And Cultural Protection In Wto Law , Tomer Broude

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The regulation of the relationship between international trade law and cultural protection is one of the challenges that the World Trade Organization (WTO) will be facing with greater intensity in the second decade of its existence. This paper approaches the problem as it is reflected in the current debate on Geographical Indications (GIs) for food and wine products in the WTO. It seeks to take 'trade and culture' seriously, looking not only at law's effects on trade but also on culture, and to examine the extent to which legal restrictions on international trade can in fact prevent the degradation of …

Is There A Human Right To Resist Genocide?, David B. Kopel

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The genocide in Darfur, Sudan, is perhaps the worst human rights crisis of the new century. This article examines the failures of the international response so far, and offers a solution based on international human rights law.

Conducting an in-depth study of the Darfur genocide, and also discussing other genocides, the Article details the inadequacy of many of the international community's response to genocides, including “targeted sanctions” or international peacekeeping forces.

The Article then examines international legal authorities such as the Genocide Convention, the Universal Declaration of Human Rights, and the International Court of Justice, and demonstrates that groups which …

Nato Counterterrorism And Article 5: Hammer Of The North Atlantic Or Paper Tiger?, David D. Ayliffe

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This paper concerns the development of the North Atlantic Treaty Organization's counterterrorism program. It seeks to analyze the legal implications of this development and the program's potential effectiveness. Specifically, the paper asserts that NATO's counterterrorism program is consistent with the drafting history of the North Atlantic Treaty and that Article 5 of the North Atlantic Treaty is sufficiently flexible to support future NATO counterterrorism missions.

Ireland's New Responsibility: Refugees Buy The Irish Another Round, Shae D. Armstrong

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Over the previous decade, Ireland's economic boom has attracted asylum seekers from around the globe to this small island nation. Ireland's economic explosion created growing pains for industrial sectors of the Irish economy. Ireland’s continued willingness to diversify its neighborhoods will promote even greater economic prosperity. Furthermore, refugees will satisfy several of the economic demands of Ireland’s massively growing economy. Asylum seekers granted refugee status in Ireland will satisfy present labor shortages in Ireland. Also, these refugees will allow Ireland to establish an economic partnership with non-EU countries that have a propensity to export asylum seekers.

Victims Of Peace: Current Abuse Allegations Against U.N. Peacekeepers And The Role Of Law In Preventing Them In The Future, Alexandra R. Harrington

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This article addresses the increasingly prevalent and horrific allegations of sexual abuse made against U.N. peacekeepers. The primary allegations addressed are those from the Congo, as the most plentiful and readily available evidence of these abuses comes from the region. The goal of this paper is not merely to critique the U.N. and its handling of the current peacekeeper abuse allegations, as such a critique would only serve half of the problem. Rather, this paper will use the past and current understandings of the U.N. Charter, peacekeeping, international law, and military justice to suggest several options for handling both the …

Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener

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No abstract provided.