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Full-Text Articles in International Law
The Honeymoon Is Over: Evaluating The U.S.-China Wto Intellectual Property Complaint, Donald P. Harris
The Honeymoon Is Over: Evaluating The U.S.-China Wto Intellectual Property Complaint, Donald P. Harris
Fordham International Law Journal
Over the last two decades, the United States and the People’s Republic of China have engaged in extensive negotiations regarding China’s protection of intellectual property rights. To date, the countries have entered into at least four substantive agreements detailing China’s commitments and obligations to enforce intellectual property rights (IPRs). Unfortunately, these commitments have not led to significant improvement in China’s enforcement of rampant piracy. When, in 2001, China finally acceded to the World Trade Organization, which included the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), many hoped that China would effectively finally fulfill its international obligations to …
"More Adversarial, But Not Completely Adversarial": Reformasi Of The Indonesian Criminal Procedure Code, Robert R. Strang
"More Adversarial, But Not Completely Adversarial": Reformasi Of The Indonesian Criminal Procedure Code, Robert R. Strang
Fordham International Law Journal
This Article provides a perspective not normally available to U.S. legal scholars in the area of comparative law -- it is a firsthand account of criminal procedure reform in the Republic of Indonesia. Indonesia, the world’s fourth largest country by population and the largest civil law jurisdiction, has embarked on sweeping legal, political, and institutional reform in the ten years since the collapse of authoritarian rule. Half way around the world from the U.S., Indonesia is virtually unknown to Western legal scholars, yet the changes being made in Indonesian criminal procedure are fundamental: establishing a suspect’s right to remain silent; …
The Contribution Of The International Court Of Justice To The Development Of International Environmental Law: A Contemporary Assessment, Dr. Jorge E. Viñuales
The Contribution Of The International Court Of Justice To The Development Of International Environmental Law: A Contemporary Assessment, Dr. Jorge E. Viñuales
Fordham International Law Journal
The article provides a detailed and up-to-date assessment of the contribution of the International Court of Justice (ICJ) to the development of International Environmental Law (IEL), including the potential in this respect of the cases currently pending before the Court. The author argues that the ICJ's contribution to IEL can be organized in two main waves of cases. The legacy of the first wave, which covered essentially the Corfu Channel and the Nuclear Tests cases, as well as an important obiter dictum made in the Barcelona Traction case, was the confirmation of previous case-law on transboundary damages as well as …
Silencing The Ethiopian Courts: Non-Judicial Constitutional Review And Its Impact On Human Rights, Chi Mgbako, Sarah Braasch, Aron Degol, Melisa Morgan, Felice Segura, Teramed Tezera
Silencing The Ethiopian Courts: Non-Judicial Constitutional Review And Its Impact On Human Rights, Chi Mgbako, Sarah Braasch, Aron Degol, Melisa Morgan, Felice Segura, Teramed Tezera
Fordham International Law Journal
Part I traces the evolution of Ethiopia's constitutional human rights guarantees in each of the country's constitutional manifestations from the period of Emperor Haile Selassie's reign to the present. Part II explores the status of fundamental rights and freedoms in Ethiopia's 1995 FDRE Constitution. Part III describes the players and processes of Ethiopia's complex system of non-judicial constitutional review, including the dominant role played by the HOF and Council of Constitutional Inquiry and the marginalized role of the courts. Part IV presents a comparative analysis of countries engaged in non-judicial constitutional review, including China, the former Soviet Union, and Finland. …
Indigenous Land Rights And The Declaration On The Rights Of Indigenous Peoples: Implications For Maori Land Claims In New Zealand, Sarah M. Stevenson
Indigenous Land Rights And The Declaration On The Rights Of Indigenous Peoples: Implications For Maori Land Claims In New Zealand, Sarah M. Stevenson
Fordham International Law Journal
This Comment argues that Maori land claims will be bolstered through the use of existing and emerging customary international law, including principles in the Declaration. Part I discusses land issues in New Zealand, beginning by providing an overview of developments since the signing of the Treaty of Waitangi (“Treaty”), the founding document of New Zealand. It then discusses Maori customary title, the foreshore and seabed controversy, and the first settlement under the F.S.A., and concludes with the reasons for New Zealand's vote against the Declaration. Part II reviews indigenous rights in international law and the role of international law in …
The Failure Of Corporate Governance In State Owned Enterprises And The Need For Restructured Governance In Fully And Partially Privatized Enterprises: The Case Of Kenya, Kiarie Mwaura
Fordham International Law Journal
This Article argues that the initiatives adopted in order to make parastatals more efficient are inadequate and will not realize the intended objectives unless the chief executives of parastatals are hired on a competitive basis, given more autonomy and the government is committed not only to designing performance contracts that set realistic standards, but also enforcing them strictly. It also contends that there is a need to streamline the multiple regulations that govern parastatals and reform the corporate regulatory framework of the private sector in order to raise standards of corporate governance and, as a result, ensure that the privatized …
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Tax Reform And Promoting A Culture Of Philanthropy: Guatemala's "Third Sector" In An Era Of Peace, Archana Sridhar
Fordham International Law Journal
Three major sections comprise this Article. Part I offers a historical overview of recent Guatemalan tax reform efforts and goals for civil society, based on the 1996 Peace Accords. Part II maps and analyzes the current provisions regarding philanthropy and regulation of the NGO sector in Guatemala, including discussion of the limitations imposed by constitutional doctrine. Part III explores recommendations for Guatemalan reform in the areas of philanthropy and civil society, based in part on the negotiations of the 2006-2007 Pacto Fiscal Commission as well as recent recommendations for Latin America in general. While there has been a burgeoning conversation …
Filling The Void: International Legal Structures And Political Risk In Investment, Molly Zohn
Filling The Void: International Legal Structures And Political Risk In Investment, Molly Zohn
Fordham International Law Journal
This Article is broken into five sections. Part I defines political risk. Part II provides a brief review of the academic literature showing the work that has been done in this area of law. Part III argues that there have indeed been oscillations in the degree of political investment risk in the world and explains that investment risks rise when changes in the world power structure cause temporary power vacuums. Once new institutions emerge for the protection of investments, the level of risk declines. Part IV discusses the current trend, in which the world is witnessing the emergence of a …
Constitutional Exclusion And Gender In Commonwealth Africa, Johanna E. Bond
Constitutional Exclusion And Gender In Commonwealth Africa, Johanna E. Bond
Fordham International Law Journal
Part I of this article briefly describes customary law and explores the effect of colonialism on legal pluralism and the region's early post-colonial constitutions. Part II describes the structure and content of constitutional clauses that exclude personal law and customary law from constitutional non-discrimination protection. Part III briefly examines international and regional human rights law and offers a pragmatic conclusion that countries must eliminate exclusionary clauses in order to conform to human rights commitments. Part IV provides a theoretical justification for eliminating exclusionary clauses from these constitutions. This section builds upon feminist theory and dialogic constitutionalism to argue that countries …
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik
Fordham International Law Journal
Part I discusses the treatment of domestic violence as a human rights issue under international law, focusing on the shift in the conceptualization of violence against women from a private matter to a human rights issue. By framing gender-based violence as a means to perpetuate the social, economic, and political inequality of women, the international community has imposed positive obligations upon the state to not only punish but to prevent gender-based violence and to eliminate its root causes. In Parts II and III, I contrast the approaches of the highest courts of the United States and South Africa. Part II …
The Challenges Of International Criminal Prosecutions In Africa, Okechukwu Oko
The Challenges Of International Criminal Prosecutions In Africa, Okechukwu Oko
Fordham International Law Journal
This article evaluates the problems and challenges of international criminal prosecutions in Africa.Part I examines the values of criminal prosecution. It examines whether international criminal prosecutions can be used as a vehicle to contribute to "national reconciliation and to the restoration and maintenance of peace." I concede that punishing perpetrators of evil is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of evil. I argue, however, that the objectives of using criminal prosecution to reestablish social equilibrium and promote reconciliation, though …
Seeing The Forest For The Treaties: The Evolving Debates On Forest And Forestry Activities Under The Clean Development Mechanism Ten Years After The Kyoto Protocol, Romulo Silveira Da Rocha Sampaio
Seeing The Forest For The Treaties: The Evolving Debates On Forest And Forestry Activities Under The Clean Development Mechanism Ten Years After The Kyoto Protocol, Romulo Silveira Da Rocha Sampaio
Fordham International Law Journal
This Article focuses on the evolving debates concerning jointly implemented forest and forestry activities. More specifically, this Article focuses on forest and forestry activities under the Clean Development Mechanism ("CDM"). The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change ("Kyoto Protocol") effectively created the project-based flexibility mechanisms that would allow for joint implementation of policies and measures under the climate change legal regime. Article 6 envisioned joint implementation (between developed countries and economies in transition), and Article 12 envisioned the CDM (between developed and developing countries). The overall objective of this Article is to identify the …
Introduction: New Dimensions Of Cultural Property, Susan Scafidi
Introduction: New Dimensions Of Cultural Property, Susan Scafidi
Fordham International Law Journal
The articles in this symposium, and the scholars, practitioners, and passionately committed individuals who came together at the invitation of the Fordham International Law Journal to discuss current issues in cultural property law, represent important and diverse perspectives. Their work is a significant contribution to the growing body of scholarship on ownership of culture and offers a glimpse into the future of the field.
New Ways Of Thinking About Cultural Property: A Critical Appraisal Of The Antiquities Trade Debates, Alexander A. Bauer
New Ways Of Thinking About Cultural Property: A Critical Appraisal Of The Antiquities Trade Debates, Alexander A. Bauer
Fordham International Law Journal
In debates over the trade in archaeological objects or antiquities, on one end are those who believe that everyone has a shared interest in and claim to the common heritage of humanity, and thus support a vibrant and legal trade in cultural materials. On the other end are those who believe that cultural objects have special significance for specific groups and thus support the efforts of such groups to regulate their trade and seek their repatriation. The aim of this Essay is to critically examine the components of each group's arguments--their goals, assumptions, and inconsistencies--and try, where possible, to identify …
Photo Essay: The Crisis In Darfur, Olivier Bercault
Photo Essay: The Crisis In Darfur, Olivier Bercault
Fordham International Law Journal
This is a photo essay about the internal conflict in Darfur, one of the world's poorest and most inaccessible regions, on Sudan's western border with Chad.
The Passionate Expression Of Hate: Constitutional Protections, Emotional Harm And Comparative Law, Amnon Reichman
The Passionate Expression Of Hate: Constitutional Protections, Emotional Harm And Comparative Law, Amnon Reichman
Fordham International Law Journal
This Article will examine two possible models that seek to resolve the tension in principle: The U.S. model, under which speech enjoys preeminence, and the Israeli model, that protects human dignity as the principal value. Section I will outline and analyze a recent Israeli case that led to the first criminal conviction for the violation of an Israeli statute prohibiting the infliction of harm on religious sentiments. This case will provide a reference point for a three-part comparative analysis of the U.S. and Israeli models. Section II will address the normative infrastructure that separates the two models, Sections III and …
Non-Horizontal Mergers: A European Perspective, Carles Esteva Mosso
Non-Horizontal Mergers: A European Perspective, Carles Esteva Mosso
Fordham International Law Journal
In the last few years, the assessment of non-horizontal mergers in the European Union (“EU”) has evolved considerably. There is now a consistent body of jurisprudence and administrative decisions on the assessment of vertical and conglomerate concentrations. The goal pursued is consumer welfare; the potential benefits of non-horizontal mergers are recognized and sound economic thinking is relied upon in identifying those instances where such mergers could lead to anti-competitive effects. Several developments have significantly contributed to this evolution. Two judgments of the European Courts have necessarily to be mentioned first: in 2004 the European Court of Justice (“ECJ”) established general …
Repatriation Of The Kohinoor Diamond: Expanding The Legal Paradigm For Cultural Heritage, Saby Ghoshray
Repatriation Of The Kohinoor Diamond: Expanding The Legal Paradigm For Cultural Heritage, Saby Ghoshray
Fordham International Law Journal
This Article is segmented as follows: Part I provides an historical account of the temporal trajectory through which the Kohinoor diamond has evolved over the centuries. The exploration of the legality of repatriation begins in Part II, where it explains the structural difficulties presented by arguments that seek to justify the retention of cultural artifacts. This leads to the discussion of the existing international law framework in Part III. The background presented in these sections provides the foundation utilized to advance a theoretical framework that expands the definition of cultural artifacts to define the legal paradigm for the repatriation of …
The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren Fielder Redman
The Foreign Sovereign Immunities Act: Using A "Shield" Statute As A "Sword" For Obtaining Federal Jurisdiction In Art And Antiquities Cases, Lauren Fielder Redman
Fordham International Law Journal
The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court (ICC). The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked increase in international tribunals deciding disputes affecting individual interests. Despite these trends, Americans have been wary of the International Criminal Court. Federal courts principles borrowed from the legal process school can and should be implemented to govern relations between ICC and domestic …
Seeking Justice For Victims In Darfur: The Darfur Legal Training Program, Genevieve A. Cox, Jerome C. Roth
Seeking Justice For Victims In Darfur: The Darfur Legal Training Program, Genevieve A. Cox, Jerome C. Roth
Fordham International Law Journal
With relatives displaced from their homes and a fiancée who was arbitrarily imprisoned and abused in Darfur, Hayat comes to her work with victims in the refugee camps with a personal stake. ... This commitment to human rights defense and victims' advocacy led Hanifa and eight of his Sudanese colleagues to the Darfur Legal Training Program (the "Program"), a first-of-its-kind seminar in June of 2007 led by the American Bar Association Litigation Section (the "Section"), with funding from the MacArthur Foundation. ... The Program brought these lawyers to London for a week to train with a faculty of American trial …
Fifty Years Of European Integration: A Remarkable Achievement, Desmond Dinan
Fifty Years Of European Integration: A Remarkable Achievement, Desmond Dinan
Fordham International Law Journal
The following sections outline four main phases in the history of European integration. First, this Article examines the decisive contribution that European integration made in the immediate postwar years to solving the German question and achieving Franco-German rapprochement. Second, it looks at the steps taken in the mid-1950s to launch the broader European Economic Community (“EEC”). The next section explains the difficulties encountered in completing the single market, which were eventually overcome in the late 1980s. The mixed record of the EU, launched in 1993 following ratification of the Treaty on European Union ("Maastricht Treaty"), is then examined. The final …
Me And My Shadow: The European Court Of Justice And The Disintegration Of European Union Law, Anthony Arnull
Me And My Shadow: The European Court Of Justice And The Disintegration Of European Union Law, Anthony Arnull
Fordham International Law Journal
The European Court of Justice (“the ECJ” or “the Court”) is widely recognized as one of the world's most successful international tribunals and has been held up as a model for others. Its reputation is in large measure based on its contribution to the “constitutionalization” of the European Community Treaties and to the functioning of the common market, particularly in the 1960s and 1970s. What has perhaps received less attention is the range of mechanisms employed by the Member States since the late 1980s to contain what they regard as expansive lawmaking by the ECJ. Those mechanisms have sometimes generated …
Environmental Spill-Overs Into General Community Law, Professor Dr. Jan H. Jans, Professor Dr. Hanna G. Sevenster, Jos M.P. Janssen
Environmental Spill-Overs Into General Community Law, Professor Dr. Jan H. Jans, Professor Dr. Hanna G. Sevenster, Jos M.P. Janssen
Fordham International Law Journal
This Article will illustrate that indeed, European environmental law is not just another sectoral policy area of the European Union (“EU”). Over the years it has proven to have a major impact on various general doctrines of European law. In that sense, European environmental law had (and still has) an important spill-over impact upon general European Community (“EC”) law. It is the modest ambit of this Article to illustrate some of the environmental spill-overs into general European law, specifically examining the role of the European Court of Justice (“ECJ”) and its case law.
Economic Governance In The European Union: Should Fiscal Stability Outweigh Economic Growth In The Stability And Growth Pact?, Roger J. Goebel
Economic Governance In The European Union: Should Fiscal Stability Outweigh Economic Growth In The Stability And Growth Pact?, Roger J. Goebel
Fordham International Law Journal
This Article will initially discuss the genesis of the Stability and Growth Pact (“SGP”) in 1996-1997. The second section will analyze the legal structure of the legislation adopted in 1997 to enforce the stability aspect of the SGP, i.e., the Multilateral Surveillance Regulation (“MSR”) and the Initial Excessive Deficit Regulation (“EDR”). Next, the Article will briefly review the operational disputes over the application of the EDR to France and Germany in 2002-2003, culminating in the impasse at the November 25, 2003 Ecofin Council meeting. The following section will first summarize and then analyze the Court of Justice's judgment in 2004 …
The Lisbon Treaty: A Brief Outline, Giorgio Maganza
The Lisbon Treaty: A Brief Outline, Giorgio Maganza
Fordham International Law Journal
The story of the Lisbon Treaty cannot be told--nor can a brief outline thereof be sketched--without going back to the Constitutional Treaty, which represents the background to the Lisbon Treaty and against which the Lisbon Treaty ought to be assessed. That is why the present outline will first refer to the Constitutional Treaty, before addressing the structure and the content of the Lisbon Treaty.
Regulation And Modes Of Governance In Ec Competition Law: What's New In Enforcement?, Imelda Maher
Regulation And Modes Of Governance In Ec Competition Law: What's New In Enforcement?, Imelda Maher
Fordham International Law Journal
The Article first locates the modernization of European Community antitrust enforcement within the context of the regulatory state and the Lisbon agenda before turning to the debates on new governance. It then specifically analyzes the emergence of networks in general and the European Competition Network in particular before concluding.
Fifty Years Of European Union Law: A Panel Of Present And Former Judges, Moderated By Roger Goebel, Francis Jacobs, Richard Lauwaars, John L. Murray, Lord Slynn Of Hadley
Fifty Years Of European Union Law: A Panel Of Present And Former Judges, Moderated By Roger Goebel, Francis Jacobs, Richard Lauwaars, John L. Murray, Lord Slynn Of Hadley
Fordham International Law Journal
We are very pleased, very honored, to end this conference, this academic workshop, with a panel of present and former judges, who have kindly agreed to talk informally and frankly about some interesting issues that concern the European Court of Justice. We have two judges who are current judges: John Murray, the Chief Justice of the Supreme Court of Ireland; and we have Richard Lauwaars, who is a member of the Dutch Council of State, the supreme administrative court. And then we have Francis Jacobs, who has recently retired as Advocate General at the Court of Justice after three terms …
Is There A Better Way? Alternative Methods Of Treaty-Based, Investor-State Dispute Resolution, Jeswald W. Salacuse
Is There A Better Way? Alternative Methods Of Treaty-Based, Investor-State Dispute Resolution, Jeswald W. Salacuse
Fordham International Law Journal
Two factors--the increase in international investment and the increase in international investment agreements--have together led to a growth in the number and severity of treaty-based disputes between host states and individual investors. An increasing number of such disputes are being settled through international arbitration. However, the large amounts of some resulting arbitration awards, the cost to host countries of the arbitral process, and the constraints imposed thereby on the ability of governments to regulate enterprises in their territories have raised questions as to whether means other than arbitration and litigation can be found to resolve treaty-based, investor-State disputes. In short, …
Obiora Chinedu Okafor, Legitimizing Human Right Ngos: Lessons From Nigeria, Joel M. Ngugi
Obiora Chinedu Okafor, Legitimizing Human Right Ngos: Lessons From Nigeria, Joel M. Ngugi
Fordham International Law Journal
Professor Obiora Chinedu Okafor of Osgoode Hall School of Law, Toronto, Canada, has written a well-researched and valuable book about Human Rights Non-Governmental Organizations ("NGOs") in Nigeria. ... " Similarly, in many countries, NGOs, in their capacity as civic society, have been given official roles in some key governance institutions such as in Nigerian National Human Rights Commissions, media watchdogs, Governmental Commissions, and so forth. In chapter five of the book, Professor Okafor candidly describes the funding patterns of human rights NGOs in Nigeria. As Professor Okafor tells the story, the trail of the "popular legitimization crisis" of local human …
Human Rights And The European Court Of Justice: An Appraisal, Elizabeth F. Defeis
Human Rights And The European Court Of Justice: An Appraisal, Elizabeth F. Defeis
Fordham International Law Journal
Through the decisions of the European Court of Justice ("ECJ"), human rights have been placed at the forefront of the agenda of the European Union ("EU"). In analyzing the jurisprudence of the Court, one is struck both by the substantive impact that it has had on the development of human rights throughout the Union and by the procedural route through which this has been accomplished. This brief Essay will attempt to highlight both of these developments and explore some of the challenges that the Court faces as it confronts a vastly different world from that facing Europe in 1957.