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Full-Text Articles in International Law
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Fordham International Law Journal
This Article undertakes a review of maritime interception and rescue-at-sea practices by evaluating the nature and scope of legal protection that each mechanism affords to refugees encountered at sea. For both interception and rescue, the underlying legal framework and State practice will be discussed, and longstanding protection gaps inherent in each will be examined. Attention is then turned to recent protection improvements in both rescue and interception. These recent changes will be analyzed for their strengths and weaknesses, and some suggestions for improving maritime interception safeguards are offered.
John W. Head, The Future Of The Global Economic Organizations: An Evaluation Of The Criticisms Leveled At The Imf, The Multilateral Development Banks, And The Wto, Stephen Zamora
Fordham International Law Journal
This Article reviews Professor John W. Head’s book, The Future of Global Economic Organizations: An Evaluation of Criticisms Leveled at the IMF, the Multilateral Development Banks, and the WTO. Developing country advocates argue that international economic regimes reinforce unequal allocations of wealth both internally, within national economies, as well as among nations. Economic conservatives argue that the World Bank and other multilateral development banks are superfluous in an age of international capital mobility. Professor John W. Head analyzes these and other criticisms in his timely and insightful study.
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
Fordham International Law Journal
This Article analyzes the history from 1994-1999 of the secondary market in emerging markets debt, identifying the lessons learned from that period of market development. It pays particular attention to the increasing integration of the secondary market for emerging markets debt with traditional financial markets, and to the force for globalization that this secondary market therefore exerted in the period.
Roadblocks To Effective Representation Of Uncharged Indefinitely Imprisoned Clients At Guantanamo Bay Military Base, Martha Rayner
Roadblocks To Effective Representation Of Uncharged Indefinitely Imprisoned Clients At Guantanamo Bay Military Base, Martha Rayner
Fordham International Law Journal
In Part I, this Note will discuss the current epidemic of human trafficking, the various ways the United Nations and the United States have attempted to combat trafficking, and highlight the importance of U.S. prosecutorial duties of witness protection that are especially implicated in human trafficking cases. Part II will present criticisms of efforts by the United Nations and the United States to protect victims of trafficking and their family members. This part will also focus on current U.S. protections afforded to families of human trafficking survivors and programs such as the Witness Security Program, from which U.S. lawmakers may …
Applicability Of The Geneva Conventions To "Armed Conflict" In The War On Terror, Miles P. Fischer
Applicability Of The Geneva Conventions To "Armed Conflict" In The War On Terror, Miles P. Fischer
Fordham International Law Journal
This Essay briefly reviews the application of the Geneva Conventions of 1949 (the “Conventions”) in the so-called war on terror since September 11, 2001 (“9/11”), highlighting a few current issues of particular interest; notably, the concept of “armed conflict,” the role of Common Article 3, the impact of the MC Act, screening by “competent tribunals,” and enforcement of the Conventions in courts martial and against Central Intelligence Agency (“CIA”) operatives.
Jack Bauer And The Rule Of Law: The Case Of Extraordinary Rendition, James R. Silkenat, Peter M. Norman
Jack Bauer And The Rule Of Law: The Case Of Extraordinary Rendition, James R. Silkenat, Peter M. Norman
Fordham International Law Journal
This Essay examines the Bush Administration's use of a tactic in the “War on Terror” called “extraordinary rendition.” The term extraordinary rendition refers to the process by which alleged terrorists are captured by the U.S. Government, transferred to another country, interrogated, and possibly tortured--all without judicial involvement--so the U.S. Government may attempt to uncover possible terrorist activity. Extraordinary rendition thus differs from ordinary forms of rendition, since the latter refers broadly to any circumstance where a government takes or transfers custody of a person by means of procedures outside those of extradition treaties.
The Prosecution Of War Crimes: Military Commissions And The Procedural And Substantive Protections Beyond International Law, Tim Bakken
Fordham International Law Journal
This Article examines the procedures contained in the Military Commissions Act of 2006 (“MCA”) and finds that they are consistent with the practice of prior military tribunals, domestic and international law, and recent U.S. Supreme Court decisions. The Article discusses specifically two questions that have arisen since the U.S. Supreme Court's decision in Hamdan v. Rumsfeld and Congress's subsequent passage of the MCA. First, do the procedures in the MCA comport with international standards? The Article considers the procedures arising from international agreements and those used in military tribunals during and after World War II, the international tribunals for Rwanda, …
When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies
When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies
Fordham International Law Journal
This Article argues for pushing the envelope when three conditions are met: (1) the executive engages in dialogue with other players, either before the fact or through timely ex post ratification; (2) pushing the envelope will generate a net positive aggregate of institutional consequences, viewed from an intermediate and long-term perspective; and (3) pushing the envelope harmonizes executive policy with evolving international or domestic norms. When these conditions are met, the lawyer for the executive should recommend the action, even if it appears inconsistent with the letter of existing law. While acting gives both the lawyer and her client “dirty …
Military Commission Trials At Guantanamo Bay, Cuba: Do They Satisfy International And Constitutional Law?, Jennifer Trahan
Military Commission Trials At Guantanamo Bay, Cuba: Do They Satisfy International And Constitutional Law?, Jennifer Trahan
Fordham International Law Journal
Part I of this Article discusses historical precedent for the use of military commissions. Part II discusses President Bush's Military Order of November 13, 2001 (“Executive Order”) [FN14] as well as various procedural rules issued for the military commission trials. [FN15] Part III discusses the U.S. Supreme Court's decision, Hamdan v. Rumsfeld, which struck down those arrangements. Part IV discusses the recent revisions to trial procedures made in the Military Commissions Act, and also analyzes the extent to which these recent revisions: (a) diverge from trial procedures under the Uniform Code of Military Justice; (b) alter U.S. domestic implementation of …
Guantanamo And U.S. Law, Joseph C. Sweeney
Guantanamo And U.S. Law, Joseph C. Sweeney
Fordham International Law Journal
This Article deals with the United States' presence at Guantanamo Bay, Cuba, the domestic and international law issues that have arisen, and the nature of the jurisdiction exercised there by the United States. It does not deal with the operation of the prison facility. Guantanamo Bay is near the eastern end of Cuba, 628 miles (1000 km) from the capital, Havana. It is a deep-water harbor, protected by hills from the extremes of Caribbean weather; but it has an unhealthy tropical climate. The forty-five square miles of the Guantanamo Naval Base have been occupied by the United States since the …
The Guantanamo Protective Order, Brendan M. Driscoll
The Guantanamo Protective Order, Brendan M. Driscoll
Fordham International Law Journal
This Note analyzes the Green Protective Order, and the arguments of its proponents and critics. It aims to facilitate broader public awareness of an issue that, while not commanding newspaper headlines, may actually have greater consequence for Guantánamo prisoners and their counsel than those issues that do attract mass media attention. Part I provides a brief background on protective orders in general and their use in cases involving confidential national security, before examining the Green Protective Order in detail. Part II considers, in detail, three different assessments of the Green Protective Order named above, as these positions have been articulated …
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Fordham International Law Journal
This Article's thesis is that, although arbitrators in investment treaty arbitration are not formally bound by precedent in the same manner as common-law judges, there is an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law. This informal system, however, imperfectly supports the relevant policy goals. It is additionally being tested by an increasing diversity of arbitrators, who are themselves facing pressures from investors and host States to meet conflicting demands. This Article proposes that the structure of investment treaty arbitration can absorb such stresses if: (a) the …
Making Chinese Labor Law Work: The Prospects For Regulatory Innovation In The People's Republic Of China, Sean Cooney
Making Chinese Labor Law Work: The Prospects For Regulatory Innovation In The People's Republic Of China, Sean Cooney
Fordham International Law Journal
This Article examines the capacity of Chinese labor laws and labor institutions to combat abuses. It finds that the Chinese regulatory framework pertaining to work relationships is impeded by a failure to clarify key norms, a bureaucratic “command and control” approach to inspection and dispute resolution, and a narrow and ineffective range of tools for inducing compliance. The Article, however, also finds evidence of emerging regulatory innovation and sophistication that may lead to a much more effective legal response. The legal material relevant to China's labor abuses is vast and highly complex, so it is necessary to choose specific abuses …
Following The Path Of Oil: The Law Of The Sea Or Realpolitik - What Good Does Law Do In The South China Sea Territorial Conflicts?, Wendy N. Duong
Following The Path Of Oil: The Law Of The Sea Or Realpolitik - What Good Does Law Do In The South China Sea Territorial Conflicts?, Wendy N. Duong
Fordham International Law Journal
This Article describes the relevant features of United Nationas Convention on the Law of the Sea ("UNCLOS"), demonstrates how the Convention is ill-equipped to handle the complexity of the South China Sea disputes, and explores the role of the private sector behind State actors in any negotiated resolution of these disputes. This Article also surveys the development of these disputes from the last decade to the present day, using as a case study the tension between China and Vietnam in the 1990s when UNCLOS went into force. Although the case study occurred in the past decade, the pattern of behaviors …
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
Fordham International Law Journal
This Perspective explores the reality behind the headlines as well as more recent efforts to improve the situation. By examining legal developments and analyzing the obstacles to enforcement, this Perspective will highlight how the issues are largely symptomatic of a developing legal system--a system struggling to translate theory into practice as it attempts to bridge the gap between traditional Chinese and Western expectations of adjudication. Part I outlines the history and background of arbitration in China, while Part II considers the current state of the law, with a particular focus on recent legislative developments. Part III examines the institutional features …
Targeted Sanctions, Human Rights, And The Court Of First Instance Of The European Community, Elizabeth F. Defeis
Targeted Sanctions, Human Rights, And The Court Of First Instance Of The European Community, Elizabeth F. Defeis
Fordham International Law Journal
In response to the increasing rise of terrorist activities throughout the European Union (“EU”) and the attacks of September 11, the Council of the European Union (“Council”) acted through its powers under the Common Foreign and Security Policy. In addition to other measures, the Council enacted regulations that froze the assets of alleged terrorist individuals and entities. In some cases, the regulations froze assets of alleged terrorists that had been placed on a list published by the U.N. Sanctions Committee, while in another, the assets of individuals were frozen after the European Council itself placed individuals on a list that …
Some Thoughts On Evidence And Procedure In European Community Competition Law, Koen Lenaerts
Some Thoughts On Evidence And Procedure In European Community Competition Law, Koen Lenaerts
Fordham International Law Journal
This Article is written in honor of Bo Vesterdorf, President of the Court of First Instance of the European Communities, ("CFI") a court in which we were both sitting as founding judges. Without diminishing the input of Judge Vesterdorf as President of the CFI, I would like to take this opportunity to revisit the first big cartel case that was brought to the CFI. In the so-called Polypropylene case, I was the Judge Rapporteur, and Judge Versterdorf officiated as the Advocate General. This case raised important issues as to evidence and procedure in European Community competition law. Therefore, the aim …
Gender Equality And Customary Marriage: Bargaining In The Shadow Of Post-Apartheid Legal Pluralism, Tracy E. Higgins, Jeanmarie Fenrich, Ziona Tanzer
Gender Equality And Customary Marriage: Bargaining In The Shadow Of Post-Apartheid Legal Pluralism, Tracy E. Higgins, Jeanmarie Fenrich, Ziona Tanzer
Fordham International Law Journal
This Report represents the culmination of a year-long project undertaken by the Crowley Program in International Human Rights at the Fordham Law School to study issues surrounding women and customary law marriages in South Africa in light of its international legal commitments. This Report presents the findings of this research effort. Following this introduction, Part I of this Report describes South Africa's international and domestic legal obligations regarding culture and gender equality, particularly with respect to marriage, divorce, and family formation. Part I then sketches two distinct approaches to the tension between customary law and gender equality, both of which …
Asking The Tiger For His Skin: Rights Activism In China, Eva Pils
Asking The Tiger For His Skin: Rights Activism In China, Eva Pils
Fordham International Law Journal
Based on a discussion of consequentialist, pragmatist, and deontological forms of reasoning as applied in debates about Chinese rights-defending, this Article makes two related observations. First, some Chinese rights defenders assess actions merely by whether they will promote institutional reform. They may reject courses of action because they would consider themselves responsible for their bad consequences, such as official reprisals. Their attitude puts them in danger of blinding themselves to the limits of legal reform in China's current constitutional and political structure. Second, according to the more radical view also described here, the case for speaking out against certain wrongs …
Unresolved Questions In The Bill Of Rights Of The New Iraqi Constitution: How Will The Clash Between "Human Rights" And "Islamic Law" Be Reconciled In Future Legislative Enactments And Judicial Interpretations?, Mohamed Y. Mattar
Fordham International Law Journal
This Article endeavors to answer the question, are the provisions on “human rights” and “Islamic Law” in the new Iraqi constitution compatible? The new Iraqi Constitution recognizes the concept of “human rights” in accordance with Iraq's international obligations, establishes an independent “Supreme Commission for Human Rights,” limits the work of governmental intelligence agencies in accordance with human rights, and prohibits tribal customs that contradict human rights. At the same time, the Constitution makes some references to Islamic Shari'ah: it establishes Islam as the official religion of the State, recognizes Islam as a source of legislation, recognizes Iraq as a part …
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
Fordham International Law Journal
In the later part of 2007 China will be at yet another watershed moment. The 17th Party Congress will be held, where new leaders of China will jockey into position. Will these leaders proceed on the slow and cautious trail set out by their predecessors? Will they regress to the demands of the ultra-conservative “left-wingers”? Or will the likely rejuvenated leadership be bold enough to face the many challenges with a more progressive agenda? This Essay addresses these questions by briefly describing and analyzing the development and the potential of the Chinese judiciary. In this analysis, the judiciary functions more …
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Fordham International Law Journal
This Essay attempts a reconciliation of sorts between two perspectives on legal pluralism, via specific reference to Islamic law, most notably in its pre-modern guise. The Essay begins with a provisional commitment to legal centralism, but primarily as a means of securing a functional place for sub-State reglementary regimes. To this end, legal centralism, as presented, is tempered by a demonstration that, even where the State enjoys an exclusive monopoly on the application of sanctions with impunity, it need not be the actual source of every rule it recognizes or applies as law.
The Duality Of State Cooperation Within International And National Criminal Cases, Geert-Jan Alexander Knoops, Robert R. Amsterdam
The Duality Of State Cooperation Within International And National Criminal Cases, Geert-Jan Alexander Knoops, Robert R. Amsterdam
Fordham International Law Journal
This Article seeks to elaborate on various responses to challenges to the rule of law. The authors consider certain of the greatest of these challenges to center around illegitimate control of State organs by groups capable of infringing presumptive rights granted under treaty to States that in a systematic and continuous way resort to abuse of process. This Article, dealing with the equality of arms, is therefore only the first of a series exploring both this problem and the manner in which it may be addressed. This Article assesses whether and to what extent State cooperation, both before international tribunals …
Re-Imagining International Law: An Examination Of Recent Trends In The Reception Of International Law Into National Legal Systems In Africa, Richard Frimpong Oppong
Re-Imagining International Law: An Examination Of Recent Trends In The Reception Of International Law Into National Legal Systems In Africa, Richard Frimpong Oppong
Fordham International Law Journal
This article suggests that the trend of accepting the supremacy and direct application of international law represents a rethinking of the relationship between international and national law, and that its full implications are yet to be explored. The Article seeks to build on current writings on the subject by analyzing certain regional arrangements and judicial approaches relevant to, but often ignored in the discussion. It attempts not to situate these arrangements or approaches within or outside of the monist/dualist paradigm, but to assess the practical significance of these arrangements for international law, national law, and their respective subjects.
Global Collaboration In Law Schools: Lessons To Learn, Elizabeth B. Cooper
Global Collaboration In Law Schools: Lessons To Learn, Elizabeth B. Cooper
Fordham International Law Journal
This Introduction to the Symposium, Global Alliance for Justice Education (“GAJE”) North American Regional Conference, discusses four articles in the Fordham International Law Journal that advance a growing goal of the GAJE: developing scholarship to facilitate justice education and increasing awareness of the global justice movement. Each of the following four articles identifies ways in which collaborating law professors in significantly different contexts--China, South Africa, Nicaragua, and the United States--can learn from each other to develop vital programs of legal education and to strive for social justice.
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Fordham International Law Journal
This Article addresses how the procedural, educational, and professional changes in China’s legal system have affected criminal trial procedure and criminal trial practice in the country. It discusses how these changes have created a need for Chinese criminal judges, prosecutors, and defense attorneys to be well versed in the adversarial process. It describes how the China Trial Advocacy Institute, a collaborative project between Renmin University of China School of Law and Indiana University School of Law-Indianapolis, has developed to help address this emerging need.
Clinical Legal Education And The Reform Of The Higher Legal Education System In China, Mao Ling
Clinical Legal Education And The Reform Of The Higher Legal Education System In China, Mao Ling
Fordham International Law Journal
This Article presents an overview of the higher legal education system in China: its structure, purposes, teaching methods, and problems. The Article suggests ways to reform China's higher legal education system, including clinical legal education, one of the new practical teaching methods that has been used by many law schools in China with promising results.
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
Fordham International Law Journal
This Article first briefly discusses the use of distance learning in a law school environment, and considers the special implications of distance learning for persons with disabilities. It then explains the structure and rationale of these courses, reports on a course section taught in Nicaragua in the Fall-Winter of 2002, and considers plans to replicate the Nicaraguan experience throughout other nations with developing economies in Africa, Asia, Central America, and Central and Eastern Europe. Finally, this Article assesses the potential impact of such a course on developing-economy nations.
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
Fordham International Law Journal
Our specific topic is Guantanamo, but in my brief remarks I would like to take the long view of U.S. counterterrorism policy (including Guantanamo) and link it to the question of the compliance of the United States, as today's superpower, with international human rights norms, its relationship to the United Nations and, speaking very broadly, international law norms as conceived by the international community. This is partly a question of the relationship of U.S. counterterrorism policy to international law. But it is also a question of the relationship of the superpower to the rest of the international community, and in …
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
Fordham International Law Journal
First, the government restrictions found in the Protective Order and the new regulations severely limit the amount of contact the attorney can have with the client and the type of information that can be shared with the client. Second, the stay of the court proceedings since December 2004 has prevented any opportunity to present issues in the courts. Third, cultural barriers between attorneys and clients, including but not limited to the clients' inability to understand the rule of law and the role of lawyers in the Common Law adversary model in general, and in the U.S. legal system in particular, …