International Law Commons^™

Can The Un Secretary-General Say "No": Revisiting The "Peking Formula", Jorge E. Vinuales

ExpressO

The study explores the extent to which the U.N. Secretary-General can uphold his or her own views when confronted with adverse stances from powerful States. More specifically, it analyzes a particular modus operandi originally developed by Dag Hammarskjold, known as the “Peking formula”. This form of good offices is discussed in two contexts, namely the 1954-1955 Sino-American hostage crisis when it was first used and the more recent attempts of Javier Perez de Cuéllar and Kofi Annan at solving the subsequent Iraq crises. Drawing upon these two case-studies, the author offers a theoretical account of the complex interactions between law …

The Politics Of Memory/Errinerungspolitik And The Use And Propriety Of Law In The Process Of Memory Construction, Vivian Grosswald Curran

ExpressO

The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear,we risk deforming law and legal principle. We …

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

ExpressO

For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Peace Is Not The Absence Of Conflict: A Response To Professor Rogers' Article: "Fit And Function In Legal Ethics", Kirsten D. Weisenberger

ExpressO

This paper takes the theoretical model Professor Catherine Rogers developed in her article “Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration,” 23 MICH. J. INT’L L. 341 (2002) as the starting point for an original argument that conflicts of laws analysis should be used to determine which legal ethics rules should apply to lawyers practicing international arbitration. The argument is supported by the new ABA Model Rules of Professional Conduct rule on choice of law explicitly applies conflicts of laws analysis to lawyers practicing in the multijurisdictional settings. This paper analyses the new ABA …

“Thinking Globally, Acting Locally”: Recent Trends In The Recognition And Enforcement Of Foreign Judgments In Canada, Antonin I. Pribetic

ExpressO

The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for …

The Case Of The Extradition Of Luis Posada Carriles: Is The United States Harboring A Terrorist?, Ernesto Gonzalez

ExpressO

"The Case of the Extradition of Luis Posada Carriles: Is the United States Harboring a Terrorist?", is the product of an independent research and writing exercise that I undertook to satisfy a writing requirement as editor of the American University International Law Review. The comment analyses the international obligations of the United States in the face of Venezuela’s request for the extradition of Luis Posada Carriles, a Cuban-born anti-Castro militant accused by Venezuela of bombing a civil airplane in 1976. The comment argues that under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal …

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

ExpressO

The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and …

Governance Of Brazilian Pension Funds, Luciana Pires Dias

ExpressO

This paper analyzes theoretically and empirically the governance of pension funds in Brazil. It first demonstrates that the law allows sponsors (employers) to write contracts (by-laws) governing the relationships between the sponsors, the managers and the participants (employees) of the pension funds. It also explains that, from an agency theory perspective, this legal framework favors non-optimal governance structures, since sponsors do not bear the financial consequences of the contracts they create. As predicted, the empirical evidence reported in this thesis shows that sponsors use this authority to create contracts that minimize monitoring and maximize control over business decisions to the …

Analysis Of Certain Aspects Of The “Long-Term Legal Strategy Project For Preserving Security And Democratic Freedoms In The War On Terrorism” Report In Light Of Customary International Law, Michael P. Hatchell

ExpressO

No abstract provided.

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge

ExpressO

None of the orthodox theories about law and economic development produced in recent decades has been based on a study of the "miracle" economies of Northeast Asia, nor have any of these orthodoxies seriously been tested against the Northeast Asian experience of law and development. This article conducts such a test, finding that none of these orthodoxies fares well when its claims are tested against the Northeast Asian experience. Rather than using Northeast Asia's experience to produce yet another orthodoxy, however, this article instead proposes rethinking how we understand the task of legal technical assistance, a rethinking which is based …

Delineating The Interests Of Justice: Prosecutorial Discretion And The Rome Statute Of The International Criminal Court, Henry M. Lovat

ExpressO

Article 53(1) and 53(2) of the Rome Statute allow the prosecutor of the International Criminal Court (ICC) to decline to pursue an investigation or prosecution in the ‘interests of justice’. Some commentators have taken the view that the Office of the Prosecutor of the ICC should not invoke this ground for declining to act in situations where there is a possibility that investigations or prosecutions might impede or interfere with local peace and reconciliation initiatives such as amnesties or truth commissions. According to at least one prominent non-governmental organisation, such decisions are properly the domain of the UN Security Council, …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Women Fighting Poverty In Cameroon: A Legal Perspective!, Geraldine Chin C K G Chin

ExpressO

Poverty in Sub Saharan Africa has many causes, which range from the impact of the Structural Adjustment Programs, the huge foreign debt and policies that encourage mismanagement of state resources. This growing poverty and underdevelopment has attracted the attention of the international community to pursue programs aimed at attaining the UN Millennium Development Goals, foreign debt relief and increased development aid. During the introduction of policies that brought about economic hardship, African women were not consulted and their voices were not heard. Yet it is these women who feel most of the impact of these policies. During the period of …

Till Death Do Us Part: Marriage, Hiv/Aids And The Law In Zimbabwe, Slyvia Chirawu

ExpressO

Lying in Sub Saharan Africa, the epicenter of the HIV/AIDS epidemic, Zimbabwe has grappled since 1985 to prevent and mitigate the impact of HIV/AIDS. Statistics point out to one glaring factor- the disproportionate impact of HIV/AIDS on women and in the case of Zimbabwe married women. Laws, policies and practices in relation to marriage predispose married women to HIV/AIDS infection. The answer to protecting women does not lie entirely in the law but in transformative gender equality.

Zimbabwe has two types of recognized marriages and the third type , the unregistered customary law union is given limited recognition. The thread …

The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie

ExpressO

This note/essay examines the evidence on the effect of stronger IP laws introduced during the process of international IP law harmonization initiated by the TRIPS agreement, on the economic development of developing countries. It has been argued by proponents of harmonization that stronger IP laws will provide a needed boost to the economic development of developing (and even least-developed) countries. Critics of harmonization have argued that stronger IP laws will have the opposite effect. What has been largely overlooked in this debate is the strength of the evidentiary foundation upon which the arguments of both sides depend. Many of the …

Rethinking Yamashita: Holding Military Leaders Accountable For Wartime Rape, Joshua H. Joseph

ExpressO

This note explores the current controversy over the proper international standard for punishing commanders whose subordinates have committed rape, and examines the interplay between the nature of rape, the underlying theories of command responsibility, and an international legal system that has failed to produce fruitful results. The note contends that the continued occurrence of rape in times of war results in large part from the international community’s reluctance to punish high-level military officials who neither physically perpetrated the crime, were not present at the crime scene, and did not necessarily order rape.

The note proposes a slight expansion of the …

The Final Balance Sheet? The International Criminal Court’S Challenges And Concessions To The Westphalian Model, Jackson N. Maogoto

ExpressO

This Article examines the organization and operating principles of the International Criminal Court. Many aspects of the Rome Statute challenge fundamental tenets of the structure of international law existing heretofore. No analysis could address all the aspects of this new international institution and the Article seeks to focus attention on some of its major features impacting on State sovereignty--the focus of this Article. The Article explores the structure and competence of the Court and in particular the powers of the prosecutor, general principles underlying the jurisdiction of the Court, the formulation of the complementarity principle in the Court’s Statute, the …

From Congo To East Timor In 40 Years: The Un Finally Crossing The Rubicon Between Peace-Keeping And Peace-Making?, Jackson N. Maogoto

ExpressO

People first, nations second. That's the new global creed that is beginning to jell at the United Nations . At the 54th Annual UN General Assembly Session in September 1999, both President Clinton and UN Secretary-General Kofi Annan made historic claims that any country's sovereignty could be violated by other nations under certain conditions occasioned by ‘deliberate, massive, organised and systematic violations of human rights’. This is in a world stage where the East Timor Crisis and the accompanying humanitarian intervention forms a vivid backdrop to the past failures of the UN in creating a nexus between international aspirations and …

People First, Nations Second: A New Role For The United Nations, Jackson N. Maogoto

ExpressO

The tragedy of East Timor coming so soon after that of Kosovo has focused attention again on the weaknesses of previous United Nations missions that have been ad hoc, reactive, and narrowly focused on solving the international emergency of the moment. The United Nations and its Members must focus on the need for timely intervention to save civilian populations from mass slaughter. It must adopt a new role as the assertive custodian of human rights because the use of its enforcement powers in the domestic affairs of rogue States may have a deterrent effect. Therefore, it should lead the way …

New Heights Of Combat—Yesterday’S Scientific Fantasies, Today’S Technological Possibilities: Weaponisation Of Outer Space, Jackson N. Maogoto

ExpressO

This Article focuses on militarization and weaponization of space. Militarization of space occurred many decades ago. The contemporary concern is weaponization of space; that is, the introduction of new futuristic weapons into the space environment. The Article argues that the quantum leaps by China’s space program (set to outpace Russia’s cash strapped program) may herald the dawn of a new Cold War and a heated arms race with the United States as China seeks to underwrite its regional pre-eminence with military might. The Article highlights the fact that the international Space Law regime now has a new game in the …

Watching The Watchdogs: Holding The Un Accountable For International Humanitarian Law Violations Of The ‘Blue Helmets’, Jackson N. Maogoto

ExpressO

The political climate is ripe for the United Nations system to successfully and effectively provide global collective security. Now that relations have improved between the ‘East’ and ‘West’ the United Nations will indeed be able to broaden its role, and perhaps operate to its full capacity - to call into being the ‘New World Order,’ characterised by a Security Council able to respond swiftly and effectively to aggression and massive human rights violations through ‘police action’. However the significant and documented international humanitarian law violations by UN forces in the 1990s has raised the stakes. Thrice in the last decade …

American Refugees And Asylum Seekers In Canada, Todd W. Zabel

ExpressO

American Soldier, Jeremy Hinzman, deserted his Iraq bound unit in 2003 and fled to Canada where he now seeks asylum with his wife and young son. The legal implications of his case are explored against the background of the American and Canadian political landscapes. The Canadian Court’s ultimate denial of his application evidences sweeping changes in Canada’s approach to International Law.

A Case For The Prosecution Of Kim Jong Il For Crimes Against Humanity, Genocide, And War Crimes , Grace M. Kang

ExpressO

This article provides a factual overview of the deplorable human rights situation in the Democratic People’s Republic of Korea (DPRK or North Korea). It shows how the International Criminal Court (ICC) could have jurisdiction over these crimes. It provides the legal framework for establishing individual criminal liability for the crimes under the ICC’s jurisdiction. It applies this framework and the legal standards for genocide, crimes against humanity, and war crimes to the facts existing in the DPRK, as provided by credible sources. It concludes that published facts indicate a reasonable basis to believe that Kim Jong Il, who controls the …

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.

Nigerian Anti-Corrutpion Initiatives, Ijeoma I. Opara

ExpressO

No abstract provided.

The Chameleon Effect: Beyond The Bonding Hypothesis For Cross-Listed Securities, Cally Jordan

ExpressO

This paper is based on a presentation made at the New York Stock Exchange Conference on the Future of Global Equity Trading, March 12, 2004, Sarasota, FL.

Looking back, was it a momentary enthusiasm? The dramatic increase in cross-listed securities, particularly in the United States, was one of the remarkable phenomena of the 1990s capital markets. The bonding, or corporate governance, hypothesis was one of the more intriguing theories to surface to explain the phenomenon. Cross-listing, the hypothesis suggested, might be a bonding mechanism by which firms, incorporated in a jurisdiction with “weak protection” of minority shareholder rights or poor …

The World Bank And The Ideology Of Reform In International Development Discourse, Joel M. Ngugi

ExpressO

Does the current development reform agenda, especially the one operationalized by the World Bank, is Ideological? If so, does it matter? These are the two questions that animate this article. In answering both questions in the affirmative, the article first demonstrates how the current development reform agenda is Ideological. It then discusses why and how it matters that the development reform agenda is Ideological. First, the article argues that Ideological rendering of the development reform agenda effectively weakens the ability of Third World countries to articulate their economic and foreign policies in ways that would benefit their citizenry the most. …

Understanding The Policy Support Instrument Of The Imf , Adebukola A. Eleso

ExpressO

The plethora of acronyms in the IMF has a new addition- the ‘PSI’. On October 17, 2005, the International Monetary Fund (IMF) approved Nigeria’s request for a Policy Support Instrument (PSI), thereby documenting Nigeria as the first user of the new IMF program. Following the approval of the PSI, Nigeria signed an agreement with its Paris Club creditors on October 20 2005 under which approximately 60% of its $30bn debt was written off on Naples terms, with the remainder to be paid back in two tranches over 6 months. Obtaining approval for its economic reform program through the Policy Support …

Non Bis In Idem And The International Criminal Court, Reynaud Neil Daniels

ExpressO

Non bis in idem, or the double jeopardy principle, is a fundamental element of fairness in criminal procedure. At its core, it prohibits the state from repeatedly prosecuting, and punishing, individuals for the same offence. The Rome Statute contains the principle but affords little protection against harassment by contracting parties.