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Full-Text Articles in International Law
Critical Analysis Of The International Court Of Justice Ruling On Israel's Security Barrier, Michael J. Kelly
Critical Analysis Of The International Court Of Justice Ruling On Israel's Security Barrier, Michael J. Kelly
Fordham International Law Journal
On July 9, 2004, the International Court of Justice (“ICJ”) handed down an Advisory Opinion concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In producing the Opinion, the Court traversed issues concerning its jurisdiction to deal with the request, the applicable law, the adherence by Israel to that law, the right of self-defense and the consequences of its findings of unlawfulness. It is well known that the long running issue of Israeli and Palestinian reconciliation is a politically heated one and the work of the ICJ has not been immune from the effects …
Economic Growth, Democracy, The Rule Of Law, And China's Future, Miron Mushkat, Roda Mushkat
Economic Growth, Democracy, The Rule Of Law, And China's Future, Miron Mushkat, Roda Mushkat
Fordham International Law Journal
China still relies predominantly on the “rule of man” (as distinct from the rule of law) and is by no means ready to embrace democracy. Its foreign policy stance has not been overly aggressive for some time but China may have not acted, at least consistently and unambiguously so, in a manner that reflects its size and status as a leading regional power. The rapid economic growth it has experienced--a pattern that should remain intact--might thus contribute toward internal relaxation and external moderation. Both the internal and external sides of the picture merit careful consideration. However, this Essay focuses, from …
International Trade & Developing Countries, Steve Charnovitz
International Trade & Developing Countries, Steve Charnovitz
Fordham International Law Journal
This is an introduction to Fordham International Law Journal, Volume 29, Number 2. This book quite appropriately addresses the challenge of trade and developing countries.
Developing Countries At Crossroads: Aid, Public Participation, And The Regulation Of Trade In Genetically Modified Foods, J.M. Migai Akech
Developing Countries At Crossroads: Aid, Public Participation, And The Regulation Of Trade In Genetically Modified Foods, J.M. Migai Akech
Fordham International Law Journal
This Article reviews the experience of developing countries with the regulation of trade in GM food products in light of such bilateral pressures and argues that there is a need for broader public participation in the regulation of biotechnology as this will facilitate national governance in an era in which the international trade regime is rapidly eroding national regulatory decision-making autonomy. Furthermore, broadening public participation promises to rescue governments of developing countries from the aforementioned bilateral pressures by helping to strengthen their hands in negotiations for technical assistance and food aid. That is, developing country governments can use participatory regulatory …
Leveling The Playing Field: Labor Provisions In Cafta, Marisa Anne Pagnattaro
Leveling The Playing Field: Labor Provisions In Cafta, Marisa Anne Pagnattaro
Fordham International Law Journal
Part I of this Article details labor problems in CAFTA countries, with specific emphasis on problems related to fundamental labor rights. Part II discusses the labor-related trading objectives mandated by the U.S. Congress in the TPA, including the relationship of those objectives to core international labor standards promulgated by the International Labor Organization ("ILO"). Part III then analyzes the labor provisions that are included in CAFTA. To the extent that these provisions do not fulfill the labor objectives set forth in the TPA and do not adequately promote core international labor standards, Part IV proposes provisions that the United States …
"External" Versus "Internal" In International Law, Martin S. Flaherty
"External" Versus "Internal" In International Law, Martin S. Flaherty
Fordham International Law Journal
The issues and analyses in this issue of the Fordham International Law Journal provide excellent cases for testing how a conventional approach would mediate current external pressures for legal change on current international and foreign relations law commitments. As it turns out, the results suggest that sovereigntist concerns are overblown, but that internationalist advocates ignore them completely at their peril.
Transnational Common Laws, H. Patrick Glenn
Transnational Common Laws, H. Patrick Glenn
Fordham International Law Journal
Today, the notion of transnational, or sometimes transsystemic, law has progressed well beyond Jessup's concept. It now includes the international law that Jessup generally dealt with – the (often) national law regulating actions or events that transcend national frontiers – but also now clearly extends to law that is transnational in origin, as opposed to application. The new transnational law can thus be applied to purely internal, and not only international, cases, and its transnational character is derived from the extra-national character of its source or sources. It is often seen in the form of “general principles of law,” which …
Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Judicial Invocations Of Foreign And International Law, Donald J. Kochan
Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Judicial Invocations Of Foreign And International Law, Donald J. Kochan
Fordham International Law Journal
Part I of this Article presents the background regarding the invocation of foreign and international law in federal courts. It discusses their use as precedential and supportive sources of authority and as the bases for legal liability. Part II discusses the fundamental infirmities and dangers related to the invocation of international and foreign law in U.S. jurisprudence. Further, this Part discusses the implications of such behavior on sovereignty, the rule of law, democratic values, constitutional adherence, foreign policy, and development. In conclusion, this Article finds that adherence or even reference to foreign and international authorities should be avoided if the …
Dedication To Advocate General Francis Jacobs, Roger J. Goebel
Dedication To Advocate General Francis Jacobs, Roger J. Goebel
Fordham International Law Journal
This issue of the Fordham International Law Journal represents a solid tribute to the attainments of Francis Jacobs produced by a group of respected scholars. Some Articles present a serious analysis of his own opinions, while others review major current issues in the field. Altogether the authors join in expressing their highest respect for Francis Jacobs' extraordinary contribution to the evolution of European Union law, and their expectation that he will continue to provide a valuable impetus to European Union studies as he returns to academic life.
Tackling Exclusionary Practices To Avoid Exploitation Of Market Power: Some Preliminary Thoughts On The Policy Review Of Article 82, Neelie Kroes
Fordham International Law Journal
The subject of this speech is how to improve enforcement of Europe's ban on abuse of monopoly power. This ban is laid down in Article 82 of the Treaty Establishing the European Community (“EC Treaty”), our equivalent of Section 2 of the Sherman Act in the United States. Such enforcement is a crucially important element in ensuring an effective competition policy, which is in turn a key factor in increasing Europe's competitiveness.
Constitutional Lessons From Europe, George A. Bermann
Constitutional Lessons From Europe, George A. Bermann
Fordham International Law Journal
All legal transplants are problematic, constitutional transplants especially so. And constitutional transplants for federal systems are among the most problematic of all. Still, especially in light of the apparent derailing of the EU's Draft Constitutional Treaty, the question of the relevance of EU constitution-making for constitution-making in federal-style systems elsewhere seems nothing less than compelling. Two problematic themes emerge most forcefully from the EU constitutional adventure just witnessed. One is the utter importance of a sense of identity, and the other is the profound challenge of satisfactorily organizing the processes of democratic participation.
Judicial Review: Advice For The Deaf?, Laurence W. Gormley
Judicial Review: Advice For The Deaf?, Laurence W. Gormley
Fordham International Law Journal
This article examines the state of judicial protection in the European Community system largely against the background of the debate of recent years, and discusses critically the ostrich-like reaction of the Court to the chorus of criticism relating to its interpretation of the concept of “individual concern” in the fourth paragraph of Article 230 of the Treaty establishing the European Community (“EC Treaty”). It also examines the attempt in the Treaty establishing a Constitution for Europe to establish a different approach to admissibility in respect of some types of Community acts.
Harmonization Of Legislation On Migrating Eu Citizens And Third Country Nationals: Towards A Uniform Evaluation Framework?, Piet Jan Slot, Mielle Bulterman
Harmonization Of Legislation On Migrating Eu Citizens And Third Country Nationals: Towards A Uniform Evaluation Framework?, Piet Jan Slot, Mielle Bulterman
Fordham International Law Journal
This Article will deal with the rights of European Union (“EU”) citizens and third country nationals. It first gives a brief overview of the classical doctrine of harmonization of legislation. This is followed by an analysis of the harmonization issues for rights of EU citizens (Part II) and third country nationals (Part III). Subsequently, harmonization methods are discussed (Part IV). Finally, it will attempt to sketch a framework for analysis (Part V).
From Stockholm To New York, Via Rio And Johannesburg: Has The Environment Lost Its Way On The Global Agenda?, Paolo Galizzi
From Stockholm To New York, Via Rio And Johannesburg: Has The Environment Lost Its Way On The Global Agenda?, Paolo Galizzi
Fordham International Law Journal
This Article will examine the response of the international community to the compelling evidence on the environmental crisis facing our Planet. It will analyze the place of the environment in the international agenda from the early 1970s, when an international environmental agenda emerged, to the 2005 World Summit, where Heads of State and Government gathered to renew their commitment to the international agenda for the twenty-first century agreed at the Millennium Summit. More specifically, the Article will examine the "comprehensive" international environmental agenda that has emerged within the U.N.
The Commission, The "Community Method," And The Smaller Member States, John Temple Lang, Eamonn Gallagher
The Commission, The "Community Method," And The Smaller Member States, John Temple Lang, Eamonn Gallagher
Fordham International Law Journal
This Article discusses several developments concerning the position of the Commission in the institutional structures of the European Union ("EU") that have occurred since then. It does not touch on the many other matters that influenced the debate on the draft Constitutional Treaty, leading to its failure at referendum in France and the Netherlands; these matters include the scope of the draft Treaty, questions concerning its economic, social, and political benefits or disadvantages, the working of the Stability Pact in the Eurozone and the ongoing debate on freedom of services legislation, the purposes for which the EU was originally created …
Revisiting Miranda After Avena: The Implications Of Mexico V. United States Of America For The Implementation Of The Vienna Convention On Consular Relations In The United States, Elizabeth Samson
Fordham International Law Journal
This Article explores the tension between the limited power of the federal government to implement the ICJ's ruling and the authority of individual U.S. states to effect criminal justice, in consideration of the Vienna Convention and the requirements of the Avena decision. The application of international law within the U.S. federal system will be analyzed, in particular with respect to the Avena, LaGrand, and Breard cases. In view of those cases, the efficacy of remedies in the U.S. federal system for the correction of past violations as well as the prevention of future breaches of the Vienna Convention will be …
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
The Simplification Of International Data Privacy Rules, Joel R. Reidenberg
Fordham International Law Journal
This Essay suggests that simplification will actually complicate data protection and will lead to unexpected burdens on industry along with an increase in the data surveillance of citizens. Part I begins with an examination of the global push for simplification. Part II addresses the opportunities for simplification through multiple instruments and some of the experiences with these instruments. Part III presents the obstacles to simplification. These obstacles illustrate fundamental problems with simplification. Part IV concludes with a proposal on “simplifying” technologies that calls for the development and increased use of privacy rights management technologies and technology audits to facilitate international …
A Tale Of Two Jurisdictions And An Orphan Case: Antitrust, Intellectual Property, And Refusals To Deal, Eleanor M. Fox
A Tale Of Two Jurisdictions And An Orphan Case: Antitrust, Intellectual Property, And Refusals To Deal, Eleanor M. Fox
Fordham International Law Journal
This Essay examines both the U.S. law and the EU law through the window of a recent U.S. case: New York Mercantile Exchange v. Intercontinental Exchange (“NYMEX”). The NYMEX facts are similar in concept to the facts in IMS but present a stronger case for liability. The Essay argues that the opinion in NYMEX, along with a growing set of U.S. cases, interprets Trinko to impose rigid requirements on a Section 2 plaintiff, not all of which are inherent in Trinko. It argues that the formalistic post-Trinko analysis, which would require dismissal of cases that do not fit within one …
The European Convention On Human Rights And Counter-Terrorism, John Hedigan
The European Convention On Human Rights And Counter-Terrorism, John Hedigan
Fordham International Law Journal
No part of the world has more experience with terrorism than Europe. The response of the Council of Europe through the jurisprudence of the European Court of Human Rights to its experience of terrorism may therefore assist in the ongoing battle against terrorism. The European Convention reflects in many ways libertarian political and cultural values shared with the United States. Its interpretation by the Court in the light of counter-terrorist measures by concerned governments may therefore have some relevance in the United States.
Refuge In An Insecure Time: Seeking Asylum In The Post-9/11 United States, Eleanor Acer
Refuge In An Insecure Time: Seeking Asylum In The Post-9/11 United States, Eleanor Acer
Fordham International Law Journal
The current climate of insecurity has in a sense presented an opportunity for those with restrictive immigration agendas to use a new vocabulary to advance long desired objectives as well as new policies that sacrifice fairness and negatively affect immigrants. The result has been a decline in due process and the undermining of basic protections of international refugee and human rights law, including: the prohibition on arbitrary detention, embodied in Article 9 of the International Covenant on Civil and Political Rights; the prohibition on returning a refugee to persecution, the cornerstone of the 1951 Convention Relating to the Status of …
Universal Jurisdiction In Abstentia, Ryan Rabinovitch
Universal Jurisdiction In Abstentia, Ryan Rabinovitch
Fordham International Law Journal
The purpose of this Article is to provide some clarification of universal jurisdiction in absentia. It begins with a brief overview of the state of international law on the issue, centering on the decision of the minority judges who treated it in the Arrest Warrant decision, and discuss the applicable principles of international law, international treaties, and custom. It then briefly examines whether allowing States to exercise universal jurisdiction in absentia is consistent with the historical and philosophical justifications for the existence of universal jurisdiction generally. The final section of the Article discusses the policy implications of such an exercise.
The Security Council As "Global Legislator": Ultra Vires Or Ultra Innovative?, Eric Rosand
The Security Council As "Global Legislator": Ultra Vires Or Ultra Innovative?, Eric Rosand
Fordham International Law Journal
This Article begins by taking a closer look at the two Security Council resolutions at the center of this debate: Resolution 1373 and Resolution 1540. It argues that they make pragmatic sense as necessary responses by the Security Council to address urgent, global threats. Further, it explains how they serve to fill the existing gaps in international law, which, if not addressed, would hinder the international community's ability to tackle these twenty-first century threats. Part II, after providing a brief summary of the Council's powers under the U.N. Charter, focuses on whether this activity falls within the Security Council's mandate. …
The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals, James Cockayne
The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals, James Cockayne
Fordham International Law Journal
This Article looks in detail at whether the Special Court is, at present, succeeding or failing, drawing lessons along the way both for the system of international criminal justice generally, and more specifically for U.N. enforcement of the law of war. In Section II, this Article suggests a method for measuring success and failure in an international criminal tribunal. It suggests that there are a number of identifiable performance standards which should guide our assessment, each linked to a stakeholder group: the international community, the affected population, and the defendants. In Sections III-V, this Article assesses the Special Court's early …
Argentina's Reparations Bonds: An Analysis Of Continuing Obligations, Christina M. Wilson
Argentina's Reparations Bonds: An Analysis Of Continuing Obligations, Christina M. Wilson
Fordham International Law Journal
This Note will address the various avenues along which the reparation recipients might pursue the vindication of their right to reparations. Part I will provide background information on the Dirty War, reconciliation process, reparation laws and the economic events that resulted in Argentina's sovereign debt crisis. Part I will also describe the various sources of law both domestic and international upholding the right to reparations. Part II will explore the various cases that have interpreted this right and the implications they have on the reparation recipients' possible remedies. Part III will analyze which of these remedies seems most likely to …
Building A Protective Wall Around Terrorists – How The International Court Of Justice's Ruling In The Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory Made The World Safer For Terrorists And More Dangerous For Member States Of The United Nations, Rebecca Kahan
Fordham International Law Journal
Part I of this Note will examine two recent actions in the war against international terrorism: the Israeli plan to build a separation barrier between Israel and the OPT, and the invasion of Afghanistan during Operation Enduring Freedom. Part II will discuss two important deviations by the ICJ from past interpretation of international law that were announced in the advisory proceedings against Israel: a new elucidation by the ICJ regarding principles of judicial propriety and a new analysis of the abilities of States to act in self-defense under Article 51 of the U.N. Charter. Part III will address the impact …
An Interdisciplinary Approach To Improving Competition Policy And Intellectual Property Policy, William E. Kovacic, Andreas P. Reindl
An Interdisciplinary Approach To Improving Competition Policy And Intellectual Property Policy, William E. Kovacic, Andreas P. Reindl
Fordham International Law Journal
This Paper suggests that interdisciplinary cooperation and coordination should focus on IP policy issues as well. This Paper discusses whether greater emphasis on interdisciplinary cooperation and coordination could contribute to more effective international convergence. We address the topic as follows. Part 2 describes the interdependency between the CP and IP regimes and potential benefits of expanded cooperation between the two fields on a domestic level. Part 3 sketches the existing collection of domestic and international institutions that make up the CP and IP communities and examines the consequences of institutional multiplicity for efforts to achieve better harmony between the two …
Development Without Refugee Rights? A Civil Society Response, Merrill Smith
Development Without Refugee Rights? A Civil Society Response, Merrill Smith
Fordham International Law Journal
More than 300 non-governmental organizations (“NGOs”) and notable individuals from around the world have endorsed the Statement Calling for Solutions to End the Warehousing of Refugees, half representing refugees in or from the southern hemisphere. These NGOs are not just signing statements but taking concrete actions in donor and host nations to reshape the refugee protection agenda. Such international breadth of support is the beginning of a coordinated campaign to bring pressure to bear on the relevant parties.
The "Friendly But Cautious" Reception Of International Law In The Jurisprudence Of The South African Constitutional Court: Some Critical Remarks, Erika De Wet
Fordham International Law Journal
As the title indicates, the purpose of this Article is to reflect on the manner in which the South African Constitutional Court has dealt with the application of international law during its first decade. It attempts to add a critical note to the overwhelmingly positive attention the Court has thus far received internationally. There is no doubt that the inspiration that the Court has thus far drawn from international (human rights) law is impressive, and in many ways exemplary. Nonetheless, there is still room for improvement, as the subsequent analysis reveals. In analyzing the Court's methodology, this article does not …
Just War Theory Requires A New Federation Of Democratic Nations, John J. Davenport
Just War Theory Requires A New Federation Of Democratic Nations, John J. Davenport
Fordham International Law Journal
I have two goals in these remarks: to support Elshtain's Augustinian argument in her lecture that there can be no true peace with tyrannical regimes, and to critique the U.N. versus U.S. dichotomy that she employs in her most recent book, Just War Against Terror. This book was finished after September 11, 2001 and the war against the Taliban, but before the current U.S. administration began advocating a war to overthrow Hussein's dictatorship in Iraq. Yet the questions that her book raises have become even more relevant since the breakdown of our old alliances over the Iraq war.
The Utility Of Pro Bono Representation Of U.S.-Based Amicus Curiae In Non-U.S. And Multi-National Courts As A Means Of Advancing The Public Interest, Madeleine Schachter
The Utility Of Pro Bono Representation Of U.S.-Based Amicus Curiae In Non-U.S. And Multi-National Courts As A Means Of Advancing The Public Interest, Madeleine Schachter
Fordham International Law Journal
Among the myriad ways that the interests of underprivileged persons and groups can be protected and promoted, and other causes of public interest can be served, is through the participation by amicus curiae in litigation adjudicating relevant issues. Amici must "identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief." An amicus who has been adversely affected as an individual by enforcement of a law that a corporate litigant is contesting may be able to poignantly present the law's ramifications through personal …