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Full-Text Articles in International Law
Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee
Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee
Fordham International Law Journal
In Part I, the author will clarify the facts regarding the evolution of the incidents and the adoption of the resultant resolutions. In Part II, the author will analyze the legal questions regarding the two resolutions. Part II will first examine the legality of the missile launch on the basis of Security Council Resolution 1540, customary international law and the Chicago Convention on International Civil Aviation. Second, Part II will examine Resolution 1695's terminology by comparing it to previous resolutions. Third, it will discuss the sanctions based on national legal authorities and legislations. Fourth, Part II will examine international law …
We Will Still Live: Confronting Stigma And Discrimination Against Women Living With Hiv/Aids In Malawi, Chi Mgbako, Tracy E. Higgins, Jeanmarie Fenrich
We Will Still Live: Confronting Stigma And Discrimination Against Women Living With Hiv/Aids In Malawi, Chi Mgbako, Tracy E. Higgins, Jeanmarie Fenrich
Fordham International Law Journal
This report presents the findings of this research effort. Part I sets out Malawi's obligations under international and domestic law regarding the right of women living with HIV/AIDS to be free from discrimination and also explores non-binding international documents that provide guidance to governments in confronting discrimination against PLWHA. Part I then explores the ways in which lack of sexual autonomy, economic dependency, physical and sexual abuse, harmful traditional practices, commercial sex work, sexual exploitation of girls and young women, and conceptions of male sexuality increase women's vulnerability to HIV/AIDS in Malawi. Part II documents widespread community-level stigma against women …
Women, Children, And Victims Of Massive Crimes: Legal Developments In Africa, Justice Richard J. Goldstone
Women, Children, And Victims Of Massive Crimes: Legal Developments In Africa, Justice Richard J. Goldstone
Fordham International Law Journal
This issue of the Fordham International Law Journal is devoted to African themes. The articles concentrate on the most vulnerable in Africa, namely children, women and the victims of massive crimes.
Child Soldiers, Slavery And The Trafficking Of Children, Susan Tiefenbrun
Child Soldiers, Slavery And The Trafficking Of Children, Susan Tiefenbrun
Fordham International Law Journal
This article will examine the complex relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of the use of child-soldiers. Part II will examine the international and domestic laws and instruments that protect against the use of children as soldiers. Part III will examine some literary representations of the crime of child soldiering in order to raise the readers' awareness of the depths of this atrocity. Part IV will conclude by offering practical suggestions and economic solutions to make these legal instruments more effective. Children are humanity's most valuable …
Practice And Predicament: The Nationality Of The International Arbitrator (With Survey Results), Ilhyung Lee
Practice And Predicament: The Nationality Of The International Arbitrator (With Survey Results), Ilhyung Lee
Fordham International Law Journal
This Essay builds on the available literature to date and offers a more probing examination of the international arbitrator and nationality. The opening section reiterates how arbitrator nationality relates to the traditional requirements of arbitrator impartiality, independence, and neutrality (with which the "arbitrator" is most synonymous); how arbitral rules seek diversity of nationality between the tribunal and the parties; the underlying reasons for national neutrality being the accepted practice in international arbitration; and criticisms of the practice. With this background in place, the Essay poses challenging questions relating to the arbitrator's nationality, with the aid of hypothetical permutations of an …
Thieves Of Baghdad: Combatting Global Traffic In Stolen Iraqi Antiquities, Matthew Bogdanos
Thieves Of Baghdad: Combatting Global Traffic In Stolen Iraqi Antiquities, Matthew Bogdanos
Fordham International Law Journal
The argument for protecting artifacts in Iraq takes on added strength when the United States recognizes that the country is where it is today not just because of its failure to provide sufficient security to overcome the long-festering tribal and religious animosities, but also because of its continuing failure to appreciate the importance Iraqis place on the preservation of their history. This failure to protect a rich heritage going back to the dawn of civilization has convinced many in Iraq and the Middle East that the U.S. does not care about any culture other than its own. And their belief …
Introduction, Justice Richard J. Goldstone
Introduction, Justice Richard J. Goldstone
Fordham International Law Journal
Given the violence in Darfur and the ensuing international reaction, the Fordham International Law Journal decided to publish a special issue on Darfur. It is timely in light of the continuing violence in the Darfur region. This article serves as the Introduction to the special issue.
U.S. - China Relations And Darfur, Chin-Hao Huang
U.S. - China Relations And Darfur, Chin-Hao Huang
Fordham International Law Journal
This Essay will begin by first assessing China's economic stakes in Sudan. While economic interests and priorities remain important, it does not sufficiently explain China's shifting position on Darfur. The Essay will then examine the critical factors shaping China's expanding role in Africa, more broadly, as an important context in understanding its evolving approach to Sudan and the Darfur crisis. It will then delve more deeply into Beijing's accommodating shifts on Darfur, illustrating and mapping out the subtleties exhibited in China's diplomatic and economic engagements with the United States on the Darfur question.
Activism And Darfur: Slowly Driving Policy Change, Colin Thomas-Jensen, Julia Spiegel
Activism And Darfur: Slowly Driving Policy Change, Colin Thomas-Jensen, Julia Spiegel
Fordham International Law Journal
This article describes citizen activism about the situation in Darfur. Part I describes the birth of the activist movement. Part II describes the foundations and growth of the movement. Part III describes the movement in more detail and details govenrment responses as a result of this movement. Parts IV and V look towards the future.
Proving State Responsibility For Genocide: The Icj In Bosnia V. Serbia And The International Commission Of Inquiry For Darfur, Ademola Abass
Proving State Responsibility For Genocide: The Icj In Bosnia V. Serbia And The International Commission Of Inquiry For Darfur, Ademola Abass
Fordham International Law Journal
This Article discusses the Bosnia v. Serbia case and the Darfur Inquiry and asks whether, in coming to their respective decisions on Serbia and Sudan's responsibilities, the ICJ and the ICID did all that was required of them, especially under the law of State responsibility. This Article first considers whether, despite striking similarities in the circumstances of Darfur and Srebrenica, the ICID's decision that genocide did not occur in Darfur is credible, defensible and could withstand legal analysis under international law. The analysis here juxtaposes the ICID's findings with the ICJ's decision on the Srebrenica genocide.
Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility?, Dermot Groome
Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility?, Dermot Groome
Fordham International Law Journal
Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …
Why The Killing In Darfur Is Genocide, Jennifer Trahan
Why The Killing In Darfur Is Genocide, Jennifer Trahan
Fordham International Law Journal
In the “Anfal trial,” the Iraqi High Tribunal (“IHT”) in Baghdad convicted five former Iraqi high officials of genocide, crimes against humanity and war crimes committed in 1988 against the Iraqi Kurds. The evidence presented at trial—which included both voluminous documentary evidence as well as eye-witness testimony—demonstrated the clear existence of a genocidal campaign by the former Iraqi government and military, which eliminated an estimated 182,000 Iraqi Kurds in 1988, including through the use of chemical weapons (the eight-phased “Anfal campaign”). Ali Hassan al-Majid al-Tikriti (“Majid”), known by the moniker “Chemical Ali,” and four others were convicted—three of whom (including …
Pressuring Sudan: The Prospect Of An Oil-For-Food Program For Darfur, Russell P. Mcaleavey
Pressuring Sudan: The Prospect Of An Oil-For-Food Program For Darfur, Russell P. Mcaleavey
Fordham International Law Journal
This Note examines whether Justice Goldstone's proposal for an oil-for-food program is feasible in today's international political climate and whether it would be effective in curtailing the violence and aiding civilians in Darfur. Part I begins by examining the reasons behind China's reluctance to support international initiatives to achieve peace in Darfur. Part II discusses the U.N. Oil-for-Food Program in Iraq and outlines proposals for avoiding problems that plagued that program. Finally, Part III takes into consideration the political and logistical difficulties that are likely to arise from the institution of an oil-for-food program in Sudan, and concludes that such …
Fifty Years Of European Community Law , Roger J. Goebel
Fifty Years Of European Community Law , Roger J. Goebel
Fordham International Law Journal
Thus, it is highly appropriate for the Fordham Center on European Union Law and the Fordham International Law Journal ("ILJ") to join efforts to celebrate the achievements of the European Community, with particular recognition of the role and influence of the EC Court of Justice. Our conference, Fifty Years of European Community Law, held on February 29 and March 1, 2008, assembled thirty leading European and American experts in EU law fields, together with five former Court of Justice members and national court judges, for an impressive program reviewing different fields. This issue of the ILJ is the first of …
The Lisbon Compromise: A Synthesis Between Community Method And Union Acquis, Jacqueline Dutheil De La Rochère
The Lisbon Compromise: A Synthesis Between Community Method And Union Acquis, Jacqueline Dutheil De La Rochère
Fordham International Law Journal
Lisbon is a return to the community method: the word "Constitution" has disappeared along with the goal of drafting a self-sufficient document. A new treaty is proposed for ratification by Member States modifying on one side the Treaty on European Union ("TEU") and on the other side the Treaty establishing the European Community ("EC Treaty"); this last part of the modifying treaty is designated as the Treaty on the Functioning of the European Union ("TFEU"). Nothing has improved as regards clarity and simplification: the amendments cover 152 pages and prove very difficult to read in the absence of consolidation, not …
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
The Application Of Community Law By National Courts Ex Officio, Richard H. Lauwaars
Fordham International Law Journal
This Essay will mainly deal with the administrative jurisdiction, but to the extent that it is relevant, will also pay attention to civil suits as well, in a national context as in the Union. The Essay will describe the development of the case-law of the Court of Justice concerning the ex officio application of Community law, starting with the well-known van Schijndel & van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten and Peterbroeck, Van Campenhout & Cie SCS v. Belgian State cases of December 14, 1995 and ending with the van der Weerd & Others v. Minister van Landbouw, Natuur en …
Consumers Of Financial Services And Multi-Level Regulation In The European Union, Caroline Bradley
Consumers Of Financial Services And Multi-Level Regulation In The European Union, Caroline Bradley
Fordham International Law Journal
This Article focuses on the changing role of consumers of financial services in the development of financial services policy in the European Union (“EU”), illustrating tensions between two models of supranational rule-making: the technical and the political. As the European mode of governance has developed by claiming legitimacy largely through functional participation, it is important to focus on the workings of functional participation, and whether it delivers the claimed legitimacy. The first section of the Article describes in outline four different phases of financial services related policy-making in Europe: the period before the Single European Act, the period leading up …
Two Forms Of Modernization In European Competition Law, David J. Gerber
Two Forms Of Modernization In European Competition Law, David J. Gerber
Fordham International Law Journal
This Article makes two central claims. One is that the two processes are related in important ways and that neither can be fully understood without understanding the other. The other is that the relationships between the two reveal changes in the dynamics of European competition law that have so far been little noticed. This Article first sets out briefly the basic outlines of the procedural modernization process, focusing on aspects of its dynamics that are particularly relevant to the ties between it and the process of substantive modernization. It next depicts the process that I call “substantive modernization,” identifying the …
Improving Competition In European Energy Markets Through Effective Unbundling, Neelie Kroes
Improving Competition In European Energy Markets Through Effective Unbundling, Neelie Kroes
Fordham International Law Journal
This Article is structured as follows: first, it summarizes the European approach to developing integrated and well-functioning electricity and gas markets, giving an overview of the opening of energy markets through Community legislation and the development of the current unbundling regime. It puts the European approach in perspective, outlining experiences with unbundling in the United States. Secondly, the malfunctioning of European energy markets is analyzed, presenting the findings of the Sector Inquiry. It then explains how the problems identified can be addressed using instruments at the Commission's disposal, namely competition law enforcement and legislation. In this context, the main elements …
The Development By The Court Of Justice Of The Duties Of Cooperation Of National Authorities And Community Institutions Under Article 10 Ec, John Temple Lang
The Development By The Court Of Justice Of The Duties Of Cooperation Of National Authorities And Community Institutions Under Article 10 Ec, John Temple Lang
Fordham International Law Journal
Article 10 of the European Community Treaty has gradually given rise to a large body of case law on a wide variety of subjects, including several profoundly important constitutional principles of Community law: the duty of national courts to give effective protection to rights given by Community law, the duty to give direct effect to directives against the State, the duty to interpret national law so as to be compatible with Community law, and the right to judicial review. These principles are the foundation of the constitutional structure that the Court of Justice has built, in which national courts ensure …
The Evolution Of The Free Movement Of Capital, John A. Usher
The Evolution Of The Free Movement Of Capital, John A. Usher
Fordham International Law Journal
After considering the evolution and scope of the capital movement rules, this Article will examine two distinct themes: 1) the treatment of discriminatory taxation under the capital movement rules, looking in particular at whether there is a coherent approach to this issue across the Treaty “freedoms,” and 2) the reaction of the European Court to the extension of the capital movement rules to third countries.
Fifty Years Of Ec/Eu External Relations: Continuity And The Dialogue Between Judges And Member States As Constitutional Legislators, Pieter Jan Kuijper
Fifty Years Of Ec/Eu External Relations: Continuity And The Dialogue Between Judges And Member States As Constitutional Legislators, Pieter Jan Kuijper
Fordham International Law Journal
First, the progressive development of the Common Foreign and Security Policy (“CFSP”) and European Security and Defense Policy (“ESDP”) in the successive Treaty amendments will be sketched in its character as heritage of the French Fouchet Plan of 1961-62. Second, the idea of a dialogue between the European Court of Justice (“ECJ”) and the Member States as constitutional law-givers will be sketched in greater detail. This presumably will enable us to recognize some kind of continuity in these developments and the final question to be answered will be whether this continuity is also apparent in the considerably amended provisions on …
The European Central Bank's Independence And Its Relations With Economic Policy Makers, Professor Dr. René Smits
The European Central Bank's Independence And Its Relations With Economic Policy Makers, Professor Dr. René Smits
Fordham International Law Journal
In this Essay, written for the Fifty Years of European Union (“EU”) Law Conference organized by Fordham Law School, I intend to sketch the independent position of the European Central Bank (“ECB”) in the context of economic policy making within the European Union. I will briefly describe the law and the practice in respect of independence and economic-policy making, both the internal (domestic policies) and the external aspects (international policies). The law is stated as of February 25, 2008.
Silver Threads Among The Gold . . . 50 Years Of The Free Movement Of Goods, Laurence W. Gormley
Silver Threads Among The Gold . . . 50 Years Of The Free Movement Of Goods, Laurence W. Gormley
Fordham International Law Journal
The European Community (“EC”) is 50 years old this year, albeit having undergone a change of name and, just to confuse everyone, the articles of the Treaty establishing the European Community (“EC Treaty”) underwent a change in numbering. If the Treaty of Lisbon comes into force, the European Community itself will disappear, being absorbed into the European Union (“EU”), and the present EC Treaty will become the Treaty on the Functioning of the European Union (“FEU”). It is thus appropriate that this issue of the Fordham International Law Journal be devoted to the Golden Anniversary of the European (Economic) Community, …
The Eu Challenge To The Sec, Roberta S. Karmel
The Eu Challenge To The Sec, Roberta S. Karmel
Fordham International Law Journal
This Article argues that the European Union (“EU”) has been instrumental in moving the United States (“U.S.”) Securities and Exchange Commission (“SEC”) from a policy of national treatment of foreign (non-U.S.) issuers to a policy of mutual recognition of financial disclosure accounting standards based on convergence between U.S. accounting standards and international accounting standards. Further, future initiatives based on a national treatment model are under consideration by the SEC. At the same time, progress on the road to mutual recognition has been made possible by SEC influences on the EU, leading to securities regulation reform in the EU, and greater …
Industrial Policy And Competition Law And Policy, Neelie Kroes
Industrial Policy And Competition Law And Policy, Neelie Kroes
Fordham International Law Journal
This afternoon - and it's nearly evening - I would like us to try to rethink industrial policy. I think it makes no sense to speak of industrial policy and competition policy as distinct, one from the other, let alone as antagonistic policies. I would rather define industrial policy as one which frames the structural conditions necessary to ensure economic success in a globalizing economy. I therefore have no qualms in saying that competition policy should form a central plank in any industrial policy. As a member of the European Commission, I will focus my comments on the interconnect between …
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Fordham International Law Journal
This Article reviews the development of clinical education in South Africa and the valuable lessons such an analysis provides for those seeking to promote clinical education elsewhere. This Article reviews the obstacles faced in South Africa and the creative ways clinicians have attempted to overcome them, some much more successful than others.
Standing Of Private Plaintiffs To Annul Generally Applicable European Community Measures: If The System Is Broken, Where Should It Be Fixed?, Xavier Lewis
Fordham International Law Journal
This Article will examine the problem of the standing of private litigants by putting the action for annulment in its context. It will describe briefly how the Treaty of Rome set up a complex system in which the acts of the EC Institutions could be reviewed, a task that is shared between the European Courts and the courts of the Member States. It will also describe briefly the different correctives introduced by the Court of Justice and the Court of First Instance to the system as initially envisaged. It will be seen that a good deal of flexibility has been …
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Addressing The Incentive For Expropriation Within Business Groups: The Case Of The Korean Chaebol, Christopher Hale
Fordham International Law Journal
This Article builds upon prior empirical findings on the prevalence of pyramids and focuses on the financing subsidies derived through the internal capital markets of pyramids--particularly through affiliations with financial institutions. Part I of this Article provides a brief overview of the relevant literature and the role that pyramids can play in separating ownership and voting rights. Part II describes the phenomenon by which the financing advantages derived by firms with financial affiliates, often non-bank financial institutions (“NBFIs”), results in a distortion of the market that contributes to pyramid expansion, thereby exacerbating the risk of minority shareholder expropriation. Part III …
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Fordham International Law Journal
This Article focuses on the role of the private sector in fighting corruption. It argues that it is necessary for the private sector to take a more active role in creating meaningful deterrents to international bribery. Part I of the Article offers background on the concept and extent of corruption in general, and bribery in particular. Part II examines the existing U.S. and international legal framework for combating the payment of bribes abroad. Part III looks at non-State actors who may lead implementation efforts in the future.