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Full-Text Articles in International Law
Introduction: In Honor Of Gordon Slynn, U.K. Law Lord And Judge Of The Ec Court Of Justice, Roger J. Goebel
Introduction: In Honor Of Gordon Slynn, U.K. Law Lord And Judge Of The Ec Court Of Justice, Roger J. Goebel
Fordham International Law Journal
This symposium issue and the next issue of the Fordham International Law Journal are dedicated to the memory of Gordon Slynn, 1930–2009, a distinguished jurist, accomplished barrister, and a renowned expert in European Union and international law.
A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach
A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach
Fordham International Law Journal
The underlying thesis of this Article is that while smaller-sized particles and separate nano-sized carriers of known agents are clearly covered by the CWC, nanomimics are not as squarely within the relevant provisions. The bulk of this Article deals with that question. Despite the invitation to woolgather, this Article is limited to the tightest possible analytical approach. Part I begins with definitions of chemical and biological agents within existing treaties, and of nanoproducts, including those existing beyond presently-known technical capabilities, but which are at least reasonably conceivable (“nanobots”). Part II provides an overview of treaty law that is potentially applicable …
Antitrust In A Globalized Economy: The Unique Enforcement Challenges Faced By Small And Developing Jurisdictions, Michal S. Gal
Antitrust In A Globalized Economy: The Unique Enforcement Challenges Faced By Small And Developing Jurisdictions, Michal S. Gal
Fordham International Law Journal
One of the main challenges of this decade in the antitrust arena is the creation of some form of cooperative international antitrust regime. The potential benefit of increased international trade and cooperative competition policies to all countries involved are enormous. This Article analyzes this issue from the point of view of small and developing jurisdictions. Part I sets the stage by suggesting a typology of the challenges created by globalization. Part II analyzes the current international antitrust regime from a wider perspective that incorporates the enforcement challenges faced by small and developing jurisdictions. Part III builds upon these findings and …
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Fordham International Law Journal
This Article examines whether the Special Tribunal for Lebanon's ("STL's") in absentia trial provisions violate human right norms and, if so, whether the right to tribunal-appointed counsel or to retrial remedies any such violation. Part I explains the operation of the STL, with particular attention drawn to the funding difficulties the tribunal faces, and details the STL's in absentia trial provisions and subsequent right to counsel and retrial. Part II compares the in absentia trial provisions of the STL to those of other tribunals to demonstrate that the STL's in absentia trial provisions represent a radical departure from prior law. …
On Options Of Citizens And Moral Choices Of States: Gays And European Federalism, Dimitry Kochenov
On Options Of Citizens And Moral Choices Of States: Gays And European Federalism, Dimitry Kochenov
Fordham International Law Journal
Focusing on gay rights in the European Union, this Article addresses questions all dealing with the likely dynamics of gay-rights development in Europen in the near future. This is done by applying to the legal context of the European integration project of Kreimer's vision of federalism, Karst's analysis of the "freedom of intimate association," and Koppelman's representation of sexual-orientation discrimination as sex discrimination. The argument will proceed as follows: Part I gives a short outline of the importance of federalism for the preservation of liberty. Part II will build on Koppelman's analysis of the nature of sexual orientation discrimination as …
The Legal Obstacles To Foreign Direct Investment In Mexico's Oil Sector, Martin Miranda
The Legal Obstacles To Foreign Direct Investment In Mexico's Oil Sector, Martin Miranda
Fordham International Law Journal
This Note will present the arguments for and against foreign direct investment, but assess the Pemex reforms under the assumption that reform through privatization is necessary for survival. This Note will examine the likelihood of success for the recently proposed Pemex reforms, and what the Mexican government may expect with regards to Pemex's future. Part I provides an introduction to FDI and the legal and political framework that President Calderon must work in to accomplish Pemex reforms. Part II presents two financial models for energy reform that may serve as a blueprint for Pemex: 1) Mexico's electric power deregulatory scheme, …
The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane
Fordham International Law Journal
This Article assesses the wisdom of the substantive laws enacted in the wake of 9/11 and the procedures set up to combat this enemy. This Article is divided into four parts. Part I evaluates the doctrinal debate relating to the definition of terror, terrorism and terrorists. More particularly, it attemps to demonstrate the difficulty in identify the "terrorist" that needs to be excluded, and how that definition affects the immigration laws. Part II sets the stage for a comparative analysis by briefly surverying the terrorism-related immigration laws and procedures of each jurisdiction to this study. Part III provides a detailed …
Fighting Piracy In Somalia (And Elsewhere): Why More Is Needed, Milena Sterio
Fighting Piracy In Somalia (And Elsewhere): Why More Is Needed, Milena Sterio
Fordham International Law Journal
This Article argues that pirates should be treated as terrorists and that piracy-fighting countries should rely on a variety of antiterrorist conventions to justify the capture and prosecution of pirates. To provide a comprehensive outlook on piracy, Part I of this Article describes the history of piracy and its reappearance in the modern world. Part II briefly describes the resurgence of modern-day piracy, first in Southeast Asia and then in Somalia. Part III provides the current international legal framework for battling piracy, by focusing first on the definition of piracy in international law, and then on the existing international legal …
Uprooting Children In The Name Of Equity, Merle H. Weiner
Uprooting Children In The Name Of Equity, Merle H. Weiner
Fordham International Law Journal
This Article ultimately recommends that courts should reign in, if not abandon, the doctrine of equitable estoppel as it is used in Hague child abduction cases. This Article supports its thesis in four parts. Part I describes the equitable estoppel argument as it has emerged within the Hague Convention framework. Part II then examines the Convention's legislative history and argues that the doctrine is incompatible with that history. Part III analyzes the principle policy basis offered in support of the doctrine: the deterrence of concealment. Part IV focuses on the best way to address concealment within the confines of the …
Between A Rock And A Hard Place: Tensions Between The U.S.-Rok Status Of Forces Agreement And The Duty To Ensure Individual Rights Under The Iccpr , Rijie Ernie Gao
Between A Rock And A Hard Place: Tensions Between The U.S.-Rok Status Of Forces Agreement And The Duty To Ensure Individual Rights Under The Iccpr , Rijie Ernie Gao
Fordham International Law Journal
This Note argues that the Korea SOFA illustrates how the current approach to implementing SOFA agreements hinder state parties from complying with their legal obligations under article 2 of the ICCPR. Part I first provides an overview of the two competing bodies of international law at issue: the law governing the U.S. approach to foreign criminal jurisdiction, on the one hand, and the development of human rights law and the terms of article 2 of the ICCPR, on the other. Part II assesses the incompatibility between ICCPR and SOFA obligations from the point of view of both receiving and sending …
Rule 11 Bis: An Examination Of The Process Of Referrals To National Courts In Icty Jurisprudence, Olympia Bekou
Rule 11 Bis: An Examination Of The Process Of Referrals To National Courts In Icty Jurisprudence, Olympia Bekou
Fordham International Law Journal
Rule 11 bis forms a cornerstone of the ICTY's completion strategy. Part I of this Article provides an analysis of the elements of the rule. This Part will highlight the purpose of Rule 11 bis, offer an overview of the legal basis through which the transfer of jurisdiction has taken place in the ICTY, discuss the referral process and the elements necessary for a successful referral, and, finally, round out the discussion with an overview of the decision making process of the referral bench in identifying which state is suitable to proceed with a trial once it is determined that …
Tilting The Balance Between Capital And Labor? The Effects Of Regulatory Arbitrage In European Corporate Law On Employees, Martin Gelter
Tilting The Balance Between Capital And Labor? The Effects Of Regulatory Arbitrage In European Corporate Law On Employees, Martin Gelter
Fordham International Law Journal
This Article examines an issue of regulatory competition that seems to be of greater interest for the corporate governance of large, publicly traded firms: the position of the employees. The Article proceeds in three parts. Part I sets out the basic premise of the analysis by describing why employees may be relevant to the corporate governance structure. This Part will briefly draw on economic theory to explain why, at least under certain circumstances, it can be beneficial to create an institutional structure that facilitates long-term commitment between firms and their employees. Part II identifies aspects of European corporate law that …
From Baghdad To Bagram: The Length & Strength Of The Suspension Clause After Boumediene, Justin D. D'Aloia
From Baghdad To Bagram: The Length & Strength Of The Suspension Clause After Boumediene, Justin D. D'Aloia
Fordham International Law Journal
This is a predictive Note that will examine the doctrine relating to war-time detention and endeavor to decipher who currently maintains a right to challenge executive detention in the wake of Boumediene. This Note therefore does not centrally discuss the authority of the United States to detain wartime prisoners, what procedure is due to detainees, the wisdom of the Boumediene approach to constitutional domain, or any other related issues. Instead, this Note will attempt to define the outer contours of the Suspension Clause by looking through the Boumediene prism to determine who may presently invoke the protections of the Suspension …
An Unsatisfactory Case Of Self-Determination: Resolving Puerto Rico's Political Status, Lani E. Medina
An Unsatisfactory Case Of Self-Determination: Resolving Puerto Rico's Political Status, Lani E. Medina
Fordham International Law Journal
In the case of Puerto Rico, the exercise of self-determination has raised, and continues to raise, particularly difficult questions that have not been adequately addressed. Indeed, as legal scholars Gary Lawson and Robert Sloane observe in a recent article, “[t]he profound issues raised by the domestic and international legal status of Puerto Rico need to be faced and resolved.” Accordingly, this Note focuses on the application of the principle of self-determination to the people of Puerto Rico. Part I provides an overview of the development of the principle of self-determination in international law and Puerto Rico's commonwealth status. Part II …
"A Mere Pretense Of Justice": Complementarity, Sham Trials, And Victor's Justice At The Rwanda Tribunal, Lars Waldorf
"A Mere Pretense Of Justice": Complementarity, Sham Trials, And Victor's Justice At The Rwanda Tribunal, Lars Waldorf
Fordham International Law Journal
This Article beings by sketching the background of the recent Rwandan Patriotic Front ("RPF") trial, focusing on domestic impunity for RPF crimes and strained relations between Rwanda and the International Criminal Tribunal for Rwanda ("ICTR"). It next describes and analyzes the components of the ICTR-Rwanda agreement: the agreement itself, the RPF trial, and the ICTR prosecutor's assessment of the trial. The Article then explores the larger issues of prosecutorial discretion and independence, complementarily, and victor's justice, while examining the implications for the International Criminal Court ("ICC").
The Precedent Of Pretrial Release At The Icty: A Road Better Left Less Traveled, Megan A. Fairlie
The Precedent Of Pretrial Release At The Icty: A Road Better Left Less Traveled, Megan A. Fairlie
Fordham International Law Journal
This Article facilitates just such an inquiry by tracking the progression of pretrial provisional release at the ICTY. This Article first considers pretrial release (or release pursuant to bail) in the abstract along with those rights that may theoretically be implicated by an act of pretrial detention. It then examines the relevant activity of the ICTY's predecessors, interim advancements in human rights law and the absence of a release-based statutory provision at the Yugoslav Tribunal. The applicable rule adopted by the ICTY is then assessed, along with subsequent amendments. At each stage, specific regard is given to the rights affected …
Resale Price Maintenance: Explaining The Controversy, And Small Steps Towards A More Nuanced Policy, Matthew Bennett, Amelia Fletcher, Emanuele Giovannetti, David Stallibrass
Resale Price Maintenance: Explaining The Controversy, And Small Steps Towards A More Nuanced Policy, Matthew Bennett, Amelia Fletcher, Emanuele Giovannetti, David Stallibrass
Fordham International Law Journal
Part I of this Essay sets out why the legal framework in the EU amplifies what are, in reality, relatively small differences in thinking about resale price maintenance ("RPM"). This amplification is primarily due to the fact that the legal system asks economists, in the name of legal certainty, to draw a false dichotomy between those agreement and practices that are harmful and those that are beneficial. For practices like naked price-fixing, it is relatively easy for economists to agree on an answer. It is harder, however, for practices like RPM, which can give rise to serious anticompetitive harm, but …
The Influence Of The European Convention On Fundamental Rights On Community Law, John L. Murray
The Influence Of The European Convention On Fundamental Rights On Community Law, John L. Murray
Fordham International Law Journal
This Article examines the operation of the European Convention on the Protection of Human Rights and Fundamental Freedoms system ("European Convention on Human Rights" or "Convention") (i.e., the Council of Europe's system for human rights protection, based on the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights, as distinct from the unique system of the European Union). The system is examined in an effort to discern the enhanced impact the Convention may have on Community law under the Lisbon Treaty, and the difficulties this may present.
Of Trailers And Jet Skis: Is The Case Law On Article 34 Tfeu Hurtling In A New Direction?, Peter Oliver
Of Trailers And Jet Skis: Is The Case Law On Article 34 Tfeu Hurtling In A New Direction?, Peter Oliver
Fordham International Law Journal
The provision which is the focus of this Article is article 34 of the Treaty on the Functioning of the European Union ("TFEU" or "Treaty") (formerly article 28 EC). This Article focuses on an analysis of two recent judgments on this important issue delivered by the European Court of Justice ("Court") in 2009, namely the Trailers decision and the Mickelsson decision. Before reaching these judgments, the Article discusses very briefly the relationship between the four freedoms (free movement of goods, persons, services, and capital) and then, as to the scope of article 34, reminds the reader of what is "the …
The Growing Influence Of European Union Law, Piet Eeckhout
The Growing Influence Of European Union Law, Piet Eeckhout
Fordham International Law Journal
This Essay discusses a number of themes which show the growing influence of European Union ("EU") law. Four themes were chosen to illustrate that influence. The themes are interconnected, and hopefully bringing them together allows the reader to get a sense of the unique experiment which this "new legal order" continues to conduct. Part I examines the EU's own "federal question:" what exactly is the scope of EU law, and how is it determined? How does the case law, in particular that of the EU's supreme court, the European Court of Justice ("ECJ"), determine the boundaries of the EU law …
Selected Opinions Of Lord Slynn As Advocate General, Rosa Greaves
Selected Opinions Of Lord Slynn As Advocate General, Rosa Greaves
Fordham International Law Journal
During Lord Gordon Slynn's period in office as the Advocate General at the European Court of Justice ("ECJ" or "Court") in Luxembourg, Lord Slynn delivered opinions in many significant cases covering the whole range of European Communities ("EC") competences, from cases concerning common agricultural policy and civil services to those concerned with the development of the common market and the interpretation of the substantive law of the European Community. Comments on Lord Slynn's opinions in cases concerning the substantive law of the internal market and on state aid cases have been published in other works. In this short Essay, the …
The Doctrine Of Manifest Disregard Of The Law After Hall Street: Implications For Judicial Review Of International Arbitrations In U.S. Courts, Annie Chen
Fordham International Law Journal
This Note examines the doctrine of manifest disregard, its impact on international arbitration, and its future after Hall Street. The focus of the discussion is U.S. law. Part I sets out the legal framework for arbitration in the United States and the statutory and extrastatutory grounds for vacatur of awards. It discusses the development and application of the doctrine of manifest disregard of the law in U.S. common law and the tension this has created with the FAA. Part II analyzes the Hall Street decision and the subsequent developing circuit split, including the case's impact on viability of manifest disregard. …
Eu Law, International Law, And Economic Sanctions Against Terrorism: The Judiciary In Distress?, Takis Tridimas, Jose A. Gutierrez-Fons
Eu Law, International Law, And Economic Sanctions Against Terrorism: The Judiciary In Distress?, Takis Tridimas, Jose A. Gutierrez-Fons
Fordham International Law Journal
This Article seeks to examine the relationship between European Union (“EU”) law, international law, and the protection of fundamental rights in light of recent case law of the European Court of Justice (“ECJ”) and the Court of First Instance (“CFI”) relating to economic sanctions against individuals. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question of whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the UNSC, whether the ECJ has jurisdiction to review Community measures …
New Frontiers In The Relationship Between National And European Courts, George A. Bermann
New Frontiers In The Relationship Between National And European Courts, George A. Bermann
Fordham International Law Journal
The central question pervading this discussion is simply stated: whether and to what extent the European Court of Justice (“Court of Justice” or “Court”) (and the European institutions more generally) can count on the courts of the Member States to perform their judicial tasks in ways that are faithful to the ground rules of European Union (“EU”) law, be those rules substantive or procedural in character. Looking back over the past five decades, I am struck by the succession of different forms this question of national court “fidelity” to Community law, for lack of a better term, has taken. (The …
"Back To The Future" - Reflections On The Beginning Of The Beginning: International Criminal Law In The Twenty-First Century, David M. Crane
"Back To The Future" - Reflections On The Beginning Of The Beginning: International Criminal Law In The Twenty-First Century, David M. Crane
Fordham International Law Journal
Part I begins by stating that though there has been atrocity throughout our history, certainly the last century has earned the title "the bloody century." The author then discusses the past conflicts that have earned that title for the last century. Next, the author acknowledges that in just ten years, the international community created the justice mechanisms to show that the rule of law is more powerful than the rule of the gun. In Part II, the author cites examples of what justice mechanisms have been implemented. Part III focuses on the challenges ahead for the international justice mechanisms. In …
The Blood Of Going Green: Using Environmental Initiatives To Account For The Human Rights Violations Of The Green Movement, Noushin Ketabi
The Blood Of Going Green: Using Environmental Initiatives To Account For The Human Rights Violations Of The Green Movement, Noushin Ketabi
Fordham International Law Journal
Part I of this Note first illustrates the science of climate change and the push for biofuel development. Next, this Note uses human rights to define the problems associated with biofuel development in Brazil, Argentina and Paraguay, and introduces the environmental law framework that can address these human rights violation. Part II details the main human rights violations in Brazil, Argentina, and Paraguay occurring at the hands of the soy industry, and surveys the main existing certification proposals that attempt to mitigate social and environmental abuses. Finally, Part III proposes ways that developed countries can collectively mitigate the negative human …
Antidiscrimination Law In The European Community, Erica Szyszczak
Antidiscrimination Law In The European Community, Erica Szyszczak
Fordham International Law Journal
This Article examines how an economic international Treaty arrangement in 1957, which was openly and unapologetically aimed at trade liberalization, arrived at including such fundamental social constitutional values in the Treaty of Lisbon 2007. This Treaty facilitates the constitutional framework for political and economic co-operation in the newly enlarged Union of twenty-seven Member States, setting the agenda for the next fifty years of European integration. In making this journey we will not be taking a nostalgic look backwards at the achievements of the Community, but we will examine how the groundwork was laid to lead what became the Union to …
Regulation Of Civil Society In China: Necessary Changes After The Olympic Games And The Sichuan Earthquake, Karla W. Simon
Regulation Of Civil Society In China: Necessary Changes After The Olympic Games And The Sichuan Earthquake, Karla W. Simon
Fordham International Law Journal
This Article will address the following topics with regard to the regulation of civil society in China: (1)Making the existing regulations for social organizations (shehui tuanti, “SOs”), nonprofit non-commercial entities (minban fei qiye danwe, “NCEs”),and foundations (jijin hui) more user-friendly, including making it possible for de facto networks that provide and coordinate disaster relief to be recognized, perhaps as semi-legal entities for a short period of time. The liberalization of the SO regulations should permit mutual benefit organizations to be established in order to fully implement the freedom of association guaranteed by Article 35 of the Chinese Constitution. (2) Making …
Soft Law As Delegation, Timothy Meyer
Soft Law As Delegation, Timothy Meyer
Fordham International Law Journal
This article examines one of the most important trends in international legal governance since the end of the Cold War: the rise of “soft law,” or legally non-binding instruments that are given legal effect through domestic law or internationally binding agreements such as treaties. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as …
Filling Some Of The Gaps: The International Law Association (American Branch) Law Of The Sea Definitions Project, George K. Walker
Filling Some Of The Gaps: The International Law Association (American Branch) Law Of The Sea Definitions Project, George K. Walker
Fordham International Law Journal
The Law of the Sea Committee (“LOS Committee” or “Committee”) of the International Law Association's American Branch (“ABILA”) will complete its project, Terms in the 1982 U.N. Convention on the Law of the Sea or in Convention Analysis that the Convention Does Not Define (“Report”), in 2009. If the U.S. Senate gives advice and consent, and President Barack Obama exchanges ratifications, the U.N. Convention on the Law of the Sea (“UNCLOS” or “Convention”) and its 1994 protocol will, belatedly in the view of many, become law for the United States, as they already are for much of the world. It …