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Full-Text Articles in International Law
Kriegsraison Or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards The Conduct Of War, Scott Horton
Kriegsraison Or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards The Conduct Of War, Scott Horton
Fordham International Law Journal
One phrase from a memorandum issued by President George W. Bush early in the War on Terror offers an effective summary of a radically transformed military doctrine. “As a matter of policy,” Bush wrote, “the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The statement offered a sense of assurance of continuity of U.S. military doctrine, which many generations viewed as being at or near the vanguard in assuring high standards for the treatment of military prisoners. This was …
The Proliferation Of The Law Of International Criminal Tribunals Within Terrorism And "Unlawful" Combatancy Trials After Hamdan V. Rumsfeld, Geert-Jan Alexander Knoops
The Proliferation Of The Law Of International Criminal Tribunals Within Terrorism And "Unlawful" Combatancy Trials After Hamdan V. Rumsfeld, Geert-Jan Alexander Knoops
Fordham International Law Journal
This Article examines the arguments that led the Supreme Court to its landmark judgment, in particular: (i) the jurisdiction of federal courts to ascertain procedural challenges to the lawfulness of military commission proceedings; (ii) the relation to the Geneva Convention; (iii) the aspect of conspiracy as a (non-)legal basis for indictments issued before military commissions, especially in the argument raised by the defense in the Hamdan case; and (iv) the case law of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) with respect to the concept of conspiracy and joint criminal enterprise (“JCE”). The case law of the ICTY, …
Don't Forget The Family: A Proposal For Expanding Immediate Protection To Families Of Human Trafficking Survivors, Katrina Lynne Baker
Don't Forget The Family: A Proposal For Expanding Immediate Protection To Families Of Human Trafficking Survivors, Katrina Lynne Baker
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 …
A New Tort Code Emerges In China: An Introduction To The Discussion With A Translation Of Chapter 8- Tort Liability, Of The Official Discussion Draft Of The Proposed Revised Civil Code Of The People's Republic Of China, George W. Conk
Fordham International Law Journal
In 1986, the Sixth National People's Congress enacted the General Principles of Civil Law of the People Republic of China ("1986Code). The 1986 Code is now undergoing comprehensive revision. The Standing Committee of the National Peoples Congress (the national legislature) issued a comprehensive draft revised civil code for discussion on December 17, 2002 "Standing Committee Discussion Draft". Discussion in China of the 2002 Standing Committee Discussion Draft has recently centered on the chapter on property rights. Passed on March 16, 2007, after seven drafts, the property rights chapter has been the source, one can readily understand, of much more controversy …
The Policies Of State Succession: Harmonizing Self-Determination And Global Order In The Twenty-First Century Tai-Heng Cheng, State Succession And Commercial Obligations, Robert D. Sloane
Fordham International Law Journal
I differ with Cheng's appraisal of certain events and think that we need a more sophisticated analysis of the twin policy goals he identifies and embraces--self-determination and global order--before they can offer real policy guidance. But State Succession and Commercial Obligations stands out as a rigorously researched, original, and insightful effort to understand this quite confused and opaque body of international law. Cheng's work will both enable and encourage a more candid, reasoned, and constructive debate about the global policies at stake each time “a state fundamentally changes its structures of power and authority, and an authoritative international response is …
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Fordham International Law Journal
This Note examines whether amendment of the ITS charter is necessary to effectuate researcher access, or whether, as a matter of international law, in its capacity as an international organization (“IO”), the ITS can allow access without amendments. Addressing this question implicitly raises two collateral issues that inform the discussion. First, to what degree should an IO Member State's domestic legal framework dictate that State's position in a consensus-based IO decision-making process. Second, when changes in the global political context render an existing IO legal structure ill-suited to an IO's evolving mission, to what degree is it appropriate to re-interpret …
A Tribute To Judge Bo Vesterdorf, Roger J. Goebel
A Tribute To Judge Bo Vesterdorf, Roger J. Goebel
Fordham International Law Journal
Judge Bo Vesterdorf retires this fall after serving as Judge on the Court of First Instance (“CFI”) since its inauguration on September 25, 1989, acting as its President for three successive terms since 1998. It is accordingly highly appropriate that the editors of the Fordham International Law Journal (“ILJ”) should dedicate this annual issue devoted to European Union (“EU”) law to Judge Vesterdorf as an eminent jurist who has significantly contributed to the development of the CFI's jurisprudence, and also provided able pragmatic leadership as its presiding judge. The ILJ can be considered to act on behalf of the entire …
Efficiency Consideration And Merger Enforcement: Comparison Of U.S. And Eu Approaches, Robert Pitofsky
Efficiency Consideration And Merger Enforcement: Comparison Of U.S. And Eu Approaches, Robert Pitofsky
Fordham International Law Journal
Discussion in this Essay is designed to explore recently introduced efficiency considerations and to compare developing law in the United States and the European Union. The following sections discuss why incorporation of efficiency factors has been controversial, explore efficiency analysis in connection with mergers under U.S. law, explore comparable developments in EU law, and, finally, offer a comparison of developments in the two jurisdictions.
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Fordham International Law Journal
In this Article the author givesPart I of this Article goes through a brief overview of the contours of state aid in the European Union. Part II is devoted to a specific aspect of the acquis communitaire. As it is well known, Article 87 [of the European Community Treaty] identifies the five preconditions for a State measure to be defined as aid: Transfer of State resources, advantage, selectivity, distortion of competition, and effect on intra-Community trade. The reflections in this Part is confined to the first of those conditions.
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Fordham International Law Journal
This article seeks to provide a comparative overview of relevant practice of the European Union ("EU") and the World Trade Organization ("WTO") with regard to the interpretation and use made of "good governance," and in particular with regard to "transparency," one of its core component elements.
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Fordham International Law Journal
This Note discusses the territorial disputes in the Arctic, which are becoming increasingly contentious as a result of the Arctic melt, and the potential resolutions through the mechanisms of international law. Part I discusses the scientific consensus regarding the changing Arctic climate and the resulting conflicts that arise from increased interests in the region. Part II evaluates the varying legal paradigms that may be utilized in order to navigate through the competing claims. Part III argues that, given the uncertainties surrounding both the outcome of any potential International Court of Justice ("ICJ") decision and entering into an Arctic Treaty, universal …
The Abuse Of Girls In U.S. Juvenile Detention Facilities: Why The United States Should Ratify The Convention On The Rights Of The Child And Establish A National Ombudsman For Children's Rights, Christina Okereke
Fordham International Law Journal
This Note argues that, to address the abuse of detained girls, the United States should ratify the CRC. This Note further argues that establishing a national independent office or ombudsman to monitor children's conditions of confinement in the United States is a superior proposal to creating a U.N.-appointed special representative on violence against children. This Note concludes that, upon ratifying the CRC, the United States should establish a national ombudsman for children's rights. Part I of this Note presents the problem of physical and sexual abuse of detained girls in the United States and reviews the applicable international human rights …
Toward More Effective Judicial Implementation Of Treaty-Based Rights, John Quigley
Toward More Effective Judicial Implementation Of Treaty-Based Rights, John Quigley
Fordham International Law Journal
This Article argues that the approach to treaties taken early in the history of the Republic is more consistent with the intended meaning of the Supremacy Clause than the approach reflected in recent judicial practice.
Exporting Despair: The Human Rights Implications Of U.S. Restrictions On Foreign Health Care Funding In Kenya, Mehlika Hoodbhoy, Martin S. Flaherty, Tracy E. Higgins
Exporting Despair: The Human Rights Implications Of U.S. Restrictions On Foreign Health Care Funding In Kenya, Mehlika Hoodbhoy, Martin S. Flaherty, Tracy E. Higgins
Fordham International Law Journal
This Report culminates a year-long project undertaken by the Joseph R. Crowley Program in International Human Rights to study the impact of the Mexico City Policy in Kenya and to analyze the applicable international human rights standards. This Report sets out the findings and legal analysis that resulted. Following this Introduction and a cataloguing of our recommendations, Part I examines those international human rights obligations that the Mexico City Policy most obviously implicates. In Part II, the Report turns to the impact of the Mexico City Policy upon these rights in Kenya. Part III of this Report turns to the …
The Limits Of American Generosity, Raj Bhala
The Limits Of American Generosity, Raj Bhala
Fordham International Law Journal
This Article discusses generosity and its relevance in international trade law. Generosity, then - in international trade law - does matter, at least if a better world for the poor is imagined and if their world view is acknowledged. With good reason, many individual Americans - from the Great Plains of Kansas to the five boroughs of New York City - regard themselves as generous people. They give as private citizens, and through their favorite non-governmental organizations ("NGOs"), especially their churches, mosques, synagogues, and other houses of worship. Yet, from overseas, America is not perceived as a generous nation - …
Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram
Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram
Fordham International Law Journal
Even as the International Criminal Court undertakes investigations in Uganda and the Democratic Republic of Congo, policymakers and academics continue to debate what the “right” tools to respond to past atrocities are. Naturally there are concerns that justice must be done, weighed against concerns that weak States will be destabilized by attempts at accountability. While many have celebrated the entry into force of the International Criminal Court Statute and the exercise of universal jurisdiction, the United States continues to challenge both of these tools of international justice as undemocratic and illegitimate. There are also reasons to be concerned that tools …
Court Of Justice Oversight Over The European Central Bank: Delimiting The Ecb's Constitutional Autonomy And Independence In The Olaf Judgment, Roger J. Goebel
Court Of Justice Oversight Over The European Central Bank: Delimiting The Ecb's Constitutional Autonomy And Independence In The Olaf Judgment, Roger J. Goebel
Fordham International Law Journal
An article devoted to the European Court of Justice's (“ECJ” or the “Court”) judicial review of the European Central Bank's (“ECB”) level of constitutional autonomy and independence may seem a bit arcane in a book dedicated to honor Advocate General Francis Jacobs upon his retirement from the Court. The topic is, however, eminently suitable, because it highlights his influence in a case remote from the many fields of law in which his impact has been so marked-- e.g., free movement of goods, competition law, trademarks and other intellectual property rights, free movement of services and establishment rights, human rights protection, …
Citizenship Of The Union, Governance, And Equality, Robin C.A. White
Citizenship Of The Union, Governance, And Equality, Robin C.A. White
Fordham International Law Journal
This Article focuses on the effects of introduction of citizenship of the European Union (or “Union”) into the Treaty establishing the European Community (the “EC Treaty”) by the Maastricht Treaty. It has been accompanied by an explosion of writing on its significance for the development of the European Union. Some of this writing is critical; some questions whether Union citizenship can be a “genuine” citizenship or is rather an ill-judged attempt to create a European identity where none exists. It is not the writers alone who have examined citizenship; lawyers and the courts have also done so. The Court of …
Standards Of Proof And Standards Of Judicial Review In European Commission Merger Law , Tony Reeves, Ninette Dodoo
Standards Of Proof And Standards Of Judicial Review In European Commission Merger Law , Tony Reeves, Ninette Dodoo
Fordham International Law Journal
This Article considers, in light of the judgment in Tetra Laval ECJ, what standard the Commission's decisions in the field of merger control must satisfy if they are to withstand judicial scrutiny, and whether the Commission's concerns that the standard has been raised are justified. We also consider how the Courts' review of Commission decisions has evolved, what the standard of such judicial review now is, and what margin of appreciation is left to the Commission. Along the way, some observations are made as to how the position could be clarified further so as to ensure a satisfactory competition law …
International Law At Fordham Law School, Joseph C. Sweeney
International Law At Fordham Law School, Joseph C. Sweeney
Fordham International Law Journal
As we celebrate Fordham Law School's Centennial and pause to examine its history from a number of vantage points, this piece will describe the evolution of the international law program at the Law School, its current place in the course of study, and plans for its future development.
The Children Left Behind: Roma Access To Education In Contemporary Romania, Aram A. Schvey, Martin S. Flaherty, Tracy E. Higgins
The Children Left Behind: Roma Access To Education In Contemporary Romania, Aram A. Schvey, Martin S. Flaherty, Tracy E. Higgins
Fordham International Law Journal
This Report concludes a full-year project conducted by the Joseph R. Crowley Program in International Human Rights at the Fordham University School of Law. The 2004-2005 Crowley Fellow, Aram Schvey, taught a human-rights seminar on Roma Access to Education in Contemporary Romania. The course culminated in a two-week-long human-rights fact-finding mission to Romania that he organized. During the course of the mission, the students and faculty members traveled hundreds of miles across Romania and spoke to dozens of Roma and non-Roma students and parents, as well as teachers, principals, human rights advocates, government officials, and members of international organizations, such …
A Commentary On Selected Opinions Of Advocate General Jacobs, Rosa Greaves
A Commentary On Selected Opinions Of Advocate General Jacobs, Rosa Greaves
Fordham International Law Journal
This Article seeks simply to demonstrate, by reference to carefully selected opinions, Advocate General Jacobs' commitment to the establishment of the internal market (as illustrated by HAG II, Leclerc-Siplec, Alpine Investments, and Silhouette) and to the development of a Community legal order in which individual rights are fully protected at national and Community levels (in, for example, Konstantinidis, Vaneetveld, Unilever, and UPA).
The Icj And Municipal Law: The Precedential Effect Of The Avena And Lagrand Decisions In U.S. Courts, Philip V. Tisne
The Icj And Municipal Law: The Precedential Effect Of The Avena And Lagrand Decisions In U.S. Courts, Philip V. Tisne
Fordham International Law Journal
This Note argues that neither the framers of the Optional Protocol (“the Framers”), nor the U.S. Senate that ratified it, intended to delegate to the ICJ the authority to interpret the Vienna Convention as a matter of U.S. law. Part I of this Note describes the role and function of international law in the U.S. domestic legal system. Part I then presents the structure and history of the Permanent Court of International Justice (“PCIJ”) and the ICJ (collectively, “the World Courts”). Part I also describes the history and relevant provisions of the Vienna Convention and the Optional Protocol. Part II …
Advocate General Jacobs' Contribution To Competition Law, Valentine Korah
Advocate General Jacobs' Contribution To Competition Law, Valentine Korah
Fordham International Law Journal
This Article focuses on some of AG Jacobs' opinions regarding matters of competition, starting with his contributions on the meaning of “undertaking” in Höfner and AOK, under a combination of the Treaty Establishing the European Community (“EC Treaty”) Articles 82 and 86 (special and exclusive rights), and Risparmio, under Articles 86 and 87 (State aids). It does not deal with many other opinions he wrote on the meaning of “undertaking,” such as those in Albany and Pavlov. Finally, it discusses his opinions on refusals to deal in Bronner and Syfait, along with a selection of other judgments on the topic.
The Impact Of U.N. Human Rights Commission Reform On The Ground: Investigating Extrajudicial Executions Of Honduran Street Children, Caroline Mchale
The Impact Of U.N. Human Rights Commission Reform On The Ground: Investigating Extrajudicial Executions Of Honduran Street Children, Caroline Mchale
Fordham International Law Journal
This Note uses the case of Honduran street children to demonstrate that the U.N. Principles have not been adequately implemented, and argues that the international community should use the creation of the U.N. Human Rights Council (“Council”) as an opportunity to insist on better training and monitoring of investigative personnel worldwide. Part I reviews the legal standards establishing extrajudicial executions of street children as a major human rights violation and the Honduran State's duty to investigate. Part I also examines challenges facing Honduran investigative police agencies, including budget crises and accusations of corruption and complicity. Part I concludes with a …
Introduction: One Hundred Years Of International Law At Fordham University, William Michael Treanor
Introduction: One Hundred Years Of International Law At Fordham University, William Michael Treanor
Fordham International Law Journal
In the past 100 years, the connotations of the term "international" have changed dramatically. The ideas we have of concepts such as "international communication" and "global travel" are dramatically different from what those concepts would have meant to our forebears - if they had even thought in such terms. But an international perspective is not new at Fordham Law School. The idea of the interconnectedness of our social and legal systems with those of other Nations is one of the foundational values of our school, and it has shaped our history since we opened our doors 100 years ago.
Private Enforcement Of Commission Commitment Decisions: A Steep Climb Not A Gentle Stroll, John Davies, Manish Das
Private Enforcement Of Commission Commitment Decisions: A Steep Climb Not A Gentle Stroll, John Davies, Manish Das
Fordham International Law Journal
This Article examines the validity of the Commission's position on the private enforceability of commitment decisions in national courts in the European Union in light of the current state of European law and other important procedural and practical considerations for third parties wishing to bring enforcement proceedings. As will become apparent, national courts faced with an application for private enforcement will have to grapple with a series of challenging legal issues concerning the nature of commitment decisions. The first of these questions will concern whether a commitment decision, which is a Community measure, will be capable of enforcement by application …
Exhaustion Of Local Remedies In Alien Tort Litigation: Implications For International Human Rights Protection, Emeka Duruigbo
Exhaustion Of Local Remedies In Alien Tort Litigation: Implications For International Human Rights Protection, Emeka Duruigbo
Fordham International Law Journal
This Article looks at the scope and application of the local remedies rule in international law and the implications of its introduction in ATS litigation. As has been the case in the rule's introduction to human rights proceedings in other settings, its application in ATS litigation could mean additional work for the courts in fashioning the right way to interpret and apply the rule. For victims of human rights abuse who are seeking justice in the United States, it may not herald a lot of changes, although it could still make their quest a little more difficult. However, it could …
Recognition Of Cross-Border Insolvency Proceedings: An Evaluation Of Solvent Schemes Of Arrangement And Part Vii Transfers Under U.S. Chapter 15, Jennifer D. Morton
Recognition Of Cross-Border Insolvency Proceedings: An Evaluation Of Solvent Schemes Of Arrangement And Part Vii Transfers Under U.S. Chapter 15, Jennifer D. Morton
Fordham International Law Journal
This Note analyzes whether solvent schemes of arrangement and Part VII transfers should be recognized under Chapter 15. Although this issue primarily concerns U.K. insurance companies, the discussion of Chapter 15 is useful outside the context of insurers. Part I of this Note outlines the requirements for recognition of a scheme of arrangement under § 425 of the Companies Act 1985 and for Part VII transfers under the FSMA, and their prior treatment under 11 U.S.C. § 304. Part II evaluates the statutory criteria under Chapter 15, highlighting differences between Chapter 15 and former § 304, and asserts that solvent …
Private International Law-Making For The Financial Markets, Caroline Bradley
Private International Law-Making For The Financial Markets, Caroline Bradley
Fordham International Law Journal
This Article argues that transnational financial transactions create new opportunities for private groups to influence legal and regulatory rules. Internationalization of the financial markets has led to harmonization of financial law. Much harmonization of financial law occurs through processes that are apparently public, state-centered, and transparent, but this Article describes three ways in which private and opaque processes have a significant influence on policy development in the area of financial law. These are private international law-making through private involvement in public rule-making processes, through contracting, and through the actions of private sector regulatory entrepreneurs.