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Full-Text Articles in International Law
Russia's Labor Pains: The Slow Creation Of A Culture Of Enforcement, Katerina P. Lewinbuk
Russia's Labor Pains: The Slow Creation Of A Culture Of Enforcement, Katerina P. Lewinbuk
Fordham International Law Journal
This Article offers a general examination and analysis of Russian labor law, including its historic origin and current status, and it also examines the existing enforcement mechanisms for its provisions. It also provides a comparison of Russian labor law and enforcement to the labor regulations and enforcement in four other countries: the United States of America, the United Kingdom, Australia, and Mexico. The Article concludes that Russia's failure to comply with and enforce its labor regulations is deeply rooted in the culture's historic distrust and disrespect for the law that was typical during Soviet times and continues into the current …
China's New Labor Contract Law And Protection Of Workers, Li Jing
China's New Labor Contract Law And Protection Of Workers, Li Jing
Fordham International Law Journal
This Comment will discuss the labor conditions in China that prompted many provisions in the recently enacted Labor Contract Law, and how the new law responds to deficiencies of China's Labor Law to address various labor problems. Part I of this Comment contains a brief presentation of the historical and economic background of the emergence of migrant workers. Part I also examines the causes of the main problems faced by migrant workers, in particular the insufficiencies of China's Labor Law in protecting migrant workers. Part II looks into the legislation's background and specific provisions of China's new Labor Contract Law …
Surrendering The Rule Of Law In Foreign Relations, Martin S. Flaherty
Surrendering The Rule Of Law In Foreign Relations, Martin S. Flaherty
Fordham International Law Journal
Foreign relations specialists for the most part agree on this much: Medellin v. Texas may prove to be the most important case in the field in recent memory—more than even the recent line of Guantanamo decisions, significant as the general public assumes these to be. Agreement fades, however, concerning exactly what Medellin’s importance will be. Does it signal a reversal of the doctrine that treaties are presumptively self-executing? Or does it (merely) suggest hostility toward domestic application of multi-lateral agreements, especially when they confer individual rights? Is the Court’s opinion driven by a salutary commitment to domestic democratic process in …
An African Marshall Plan: Changing U.S. Policy To Promote The Rule Of Law And Prevent Mass Atrocity In The Democratic Republic Of The Congo, Gregory S. Gordon
An African Marshall Plan: Changing U.S. Policy To Promote The Rule Of Law And Prevent Mass Atrocity In The Democratic Republic Of The Congo, Gregory S. Gordon
Fordham International Law Journal
This Article discusses what the United States can do to promote the rule of law and human rights in DR Congo. This Article contends that U.S.-DR Congo policy has been formulated in dribs and drabs, limited in quantity relative to the enormity of the crisis, and without an overarching plan for promoting legal coherence and yielding long-term, systemic change. To be effective, U.S.-Congolese policy must be crafted and executed with a holistic approach-security, disarmament, infrastructure, food assistance, and health care must all undergird greater efforts to establish the rule of law. In effect, the United States must initiate an "African …
Gravity And The Legitimacy Of The International Criminal Court, Margaret M. Deguzman
Gravity And The Legitimacy Of The International Criminal Court, Margaret M. Deguzman
Fordham International Law Journal
References to gravity are threaded throughout the Rome Statute's provisions relating to jurisdiction and its exercise. These references reflect the drafters' philosophical vision for the Court, but fail to provide the institution with clear legal guidance. Part II begins by examining the relevant statutory provisions, exploring ambiguities in the text and suggesting how it should be interpreted. It then canvases the legislative history for indications of the drafters' intent and evaluates the approaches to gravity adopted thus far by the Court's judges and Prosecutor. The analysis in this Part demonstrates that gravity plays two essential and distinct roles for the …
The Nexus Of Public And Private In Foreign Direct Investment: An Analysis Of Ifc, Miga, And Opic, Adam L. Masser
The Nexus Of Public And Private In Foreign Direct Investment: An Analysis Of Ifc, Miga, And Opic, Adam L. Masser
Fordham International Law Journal
This Report will provide an exposition of the most recent activities of three of the most important public supporters of foreign direct investment ("FDI"): the International Finance Corporation ("IFC"), the Multilateral Investment Guarantee Agency ("MIGA"), and the Overseas Private Investment Corporation ("OPIC"), with a focus on their regional and sectoral investment patterns. While not a panacea to the incredible challenges in achieving reductions in poverty, FDI is an essential element in the overall strategy to ensure successful, sustainable development. It is also an element that, especially in the least developed countries ("LDCs"), has suffered from consistent underperformance. Part I will …
It's Not Ok: New Zealand's Efforts To Eliminate Violence Against Women, Jorge Contesse, Jeanmarie Fenrich
It's Not Ok: New Zealand's Efforts To Eliminate Violence Against Women, Jorge Contesse, Jeanmarie Fenrich
Fordham International Law Journal
This Report presents the findings of this research effort. It consists of three parts: Part I sets out the normative framework on domestic violence, both at the international and national level, and explains the relevant norms that govern the relationship between Maori and the Crown. Part II begins with a background discussion regarding the level of domestic violence in New Zealand. It then proceeds to detail the problems with the domestic law and implementing regulations addressing domestic violence, both with the law as written and problems with the law and regulations as implemented or enforced, the "implementation gaps." It presents …
The European Counterterrorist As The Next U.S. Cold Warrior: Why The United States Should Select From The German And British Models Of Procedure, Evidence, And Oversight For National Security Wiretapping, Daniel Saperstein
Fordham International Law Journal
The War on Terror is not limited to the United States, but rather, requires the cooperation and dedication of European allies which also have suffered from deadly terrorist attacks. A casualty of President Bush's foreign policy at times during his term was the alienation of the United States' traditional European allies which have acquired invaluable experience in counterterrorist operations and strategy stemming from their historical circumstances. This Note will discuss the historical differences between the U.S. and European attention and approaches to counterterrorism to provide a context in which to contrast the spectrum of national security wiretapping procedures, standards of …
The Distinct Cases Of Kosovo And South Ossetia: Deciding The Question Of Independence On The Merits And International Law, Ronald Thomas
The Distinct Cases Of Kosovo And South Ossetia: Deciding The Question Of Independence On The Merits And International Law, Ronald Thomas
Fordham International Law Journal
The cases of Kosovo and South Ossetia provide two opportunities for the community of nations to reconcile the rights of Serbia and Georgia with the rights of the peoples within their borders. Instead of doing so, other countries used these cases for ideological and political posturing and continued to do so as of the end of 2008. This Note will review Kosovo and South Ossetia and attempt to take the politics out of an inherently political decision-whether or not to recognize them as independent states. Part I of this Note will review how the United Nations has approached the issues …
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 …
Joseph Sweeney: Scholar, Teacher, Pillar Of The Fordham Law School Community, Roger J. Goebel
Joseph Sweeney: Scholar, Teacher, Pillar Of The Fordham Law School Community, Roger J. Goebel
Fordham International Law Journal
This issue of the Fordham International Law Journal is dedicated to Professor Joseph Sweeney on the occasion of his seventy-fifth birthday.
Ethics In The Multijurisdictional Practice Of Admiralty Lawyers, Michael Marks Cohen
Ethics In The Multijurisdictional Practice Of Admiralty Lawyers, Michael Marks Cohen
Fordham International Law Journal
In June 2002 the Commission on Multijurisdictional Practice of the American Bar Association (“ABA”) issued a report which covered a wide range of subjects including state judicial regulation and discipline of lawyers, the special problems of large firms moving lawyers around to work in branch offices, the use of in-house counsel not licensed in the state where they work, the particular problems of federal government and military lawyers practicing as part of their official duties in states where they are not licensed, as well as model rules for admission to practice on motion, for licensing of foreign legal consultants, and …
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 …
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 …
Rule Of Law In Central And Eastern Europe, Frank Emmert
Rule Of Law In Central And Eastern Europe, Frank Emmert
Fordham International Law Journal
Pursuant to the same logic that prevailed when Jean Monnet and Robert Schuman reached out to Germany after the end of World War II, and in keeping with the promise made in the Preamble of the founding treaty, the EU now reached out to Central and Eastern Europe after the end of the Cold War and offered integration. In recognition of the difficulties for the EU on the one side of absorbing a large number of countries without jeopardizing the functioning of the institutions, and the difficulties for the Central and Eastern European Countries ("CEECs") on the other side of …
The European Union’S Shareholder Voting Rights Directive From An American Perspective: Some Comparisons And Observations, Arthur R. Pinto
The European Union’S Shareholder Voting Rights Directive From An American Perspective: Some Comparisons And Observations, Arthur R. Pinto
Fordham International Law Journal
The European Union (“EU”) has recently celebrated its 50th anniversary. This Article is based upon my presentation in the Symposium celebrating the anniversary held at Fordham Law School and sponsored by the Fordham International Law Journal. The Article will look at how the European Union has recently approached company law issues (usually referred to as corporate law in the United States) and particularly shareholder voting rights through the recent EU directive on the exercise of certain rights of shareholders in listed companies (“Voting Rights Directive” or “Directive”). My focus is on company law with regard to the corporate governance of …
Gendercide And The Cultural Context Of Sex Trafficking In China, Susan Tiefenbrun, Christie J, Edwards
Gendercide And The Cultural Context Of Sex Trafficking In China, Susan Tiefenbrun, Christie J, Edwards
Fordham International Law Journal
This paper discusses the interconnection of historic, legal, and cultural contexts that result in the perpetuation of discrimination against women in Chinese society. The contextual analysis attempts to explain the causes for an increase in trafficking of women and the deplorable human rights violations perpetrated upon women in China today. The remedies to eliminate trafficking proposed in this paper are not easily implemented. The OCP must be revised to provide more incentives to rational family planning rather than harsh punishments and coercion. China needs to reverse a long-standing cultural tradition of male son preference and discrimination against women. We know …
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 …
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 …
When Chinese Criminal Defense Lawyers Become The Criminals, Yanfei Ran
When Chinese Criminal Defense Lawyers Become The Criminals, Yanfei Ran
Fordham International Law Journal
This Article tries to find some practical resolutions for the problematic situation of Chinese defense lawyers. Part I introduces how Chinese laws and regulations provide legal protection for criminal defendants and their defense lawyers, and compares Chinese laws with well-established international standards. Part II focuses on examples of the problems and difficulties faced by Chinese lawyers in their defense work. Part III specifically discusses criminal charges that lawyers face in their practice. Part IV argues that the long-awaited new Chinese Lawyers Law cannot solve all of the problems or wipe away all obstacles they face. Rather, solving those problems requires …
Ocean Carriers' Duty Of Care To Cargo In Port: The Rotterdam Rules Of 2009, Prof. Dr. David Morán Bovio
Ocean Carriers' Duty Of Care To Cargo In Port: The Rotterdam Rules Of 2009, Prof. Dr. David Morán Bovio
Fordham International Law Journal
On December 11, 2008, the General Assembly of the United Nations adopted General Assembly (“G.A.”) Resolution 10798, accepting a Convention prepared by the United Nations Commission on International Trade Law on “Contracts for the International Carriage of Goods Wholly or Partly by Sea,” in lieu of a diplomatic conference, and scheduled the convention to be signed, subject to subsequent ratification, on September 23,2009 at Rotterdam.10 The new Convention is designed to replace two earlier international conventions, popularly known as the Hague Rules of 1924 (“HR”), with the Visby Amendments of 1968, and the Hamburg Rules of 1978 (“HamR”), thus the …
Congress, The Supremacy Clause, And The Implementation Of Treaties, John T. Parry
Congress, The Supremacy Clause, And The Implementation Of Treaties, John T. Parry
Fordham International Law Journal
This Article intervenes in the self-execution debate by revisiting the early American understandings of treaty implementation in the decades before Foster. I first assess the significant materials from the founding era, some of which have never before been discussed in this context. I also critique the interpretations of other commentators who have been too quick to find support for a broad notion of self-execution in the historical materials. Although I conclude the founding generation generally assumed treaties would be law without congressional intervention, I emphasize that the ordinary story of consensus on these issues is inaccurate. Second, I analyze post-ratification …
A Theory Of Internationally Regulated Goods, Asif Efrat
A Theory Of Internationally Regulated Goods, Asif Efrat
Fordham International Law Journal
This Article examines the overlooked countertrend of international trade regulation. It offers a theory of internationally regulated goods ("IRGs") that explains why certain goods are regulated internationally, how governments form their preferences on international regulation, and how they establish cooperation. This Article argues that international regulation allows governments to make up for the deficiencies of national regulation by inducing the externalities-generating countries to establish proper controls. Beyond identifying and analyzing the trend of internationally regulated goods, this Article makes several additional contributions. Most importantly, the theoretical model bridges rationalist and nonrationalist accounts of international law by combining self-interest calculations with …
Legal Case For Russian Intervention In Georgia, Nicolai N. Petro
Legal Case For Russian Intervention In Georgia, Nicolai N. Petro
Fordham International Law Journal
This Article examines the legal argument for Russia's military intervention in Georgia. Russia's emphasis on the legal justification for intervention should be viewed as a significant step to the adaptation of Russian foreign policy to post-Soviet norms. Finally, having weathered this crisis, Russia will increasingly construct its foreign policy arguments with an eye toward both following and shaping international law. Part I discusses the various legal documents Russia used in order to justify its intervention in Georgia. Part II gives a critique of the Russian intervention as a peace keeping operation to protect citizens. The article concludes questioning the circumstances …
Pacta Sunt Servanda And State Promises To Foreign Investors Before Bilateral Investment Treaties: Myth And Reality, Jason Webb Yackee
Pacta Sunt Servanda And State Promises To Foreign Investors Before Bilateral Investment Treaties: Myth And Reality, Jason Webb Yackee
Fordham International Law Journal
In their 1959 proposal to build a new international legal order founded upon principles of human dignity, Professors Myres McDougal and Harold Lasswell admonished international legal scholars to continuously reappraise the suitability and necessity of existing international legal institutions, taking due notice of the "myths" on which current arrangements are based and justified.' The aim of this Article is to take McDougal and Lasswell's admonition seriously in analyzing one of the persistent myths that serves to explain and to justify bilateral investment treaties ("BIT"s) that form the backbone of the modern system of international investment law. The author’s aim is …
"For These Reasons, The Chamber: Denies The Prosecutor's Request For Referral": The False Hope Of Rule 11 Bis, Amelia S. Canter
"For These Reasons, The Chamber: Denies The Prosecutor's Request For Referral": The False Hope Of Rule 11 Bis, Amelia S. Canter
Fordham International Law Journal
This Note will examine decisions from two of the potential transfer cases, Prosecutor v. Gaspard Kanyarukiga and Prosecutor v.YussufMunyakazi, and discuss their implications for the ICTR." Part I addresses the early history of the ICTR, including the initial criticisms leveled against it and its rocky relationship with Rwanda. It also examines the introduction of 11 bis and the changes made by Rwanda to come into compliance with the Rule's requirements. Part II discusses the referral decisions themselves. Finally, Part III assesses the different approaches taken by the two chambers within their respective denials. Through an examination of the reasons given …
New Strategies For Progressive Realization Assessments Of Economic, Social, And Cultural Rights: Cambodian Aids-Related Orphans And Vulnerable Children As The Hard Case, Elizabeth Shura
Fordham International Law Journal
This Note proposes two alternatives to the standard use of progressive realization assessments under international human rights law. The first is to identify "key rights"-immediately enforceable civil and political rights that are so deeply intertwine with related social, economic, and political rights that enforcing the first unlocks access to the second. This strategy relies on the deep interconnection of all human rights a connection that is heightened among vulnerable populations such as Cambodian AIDS-related orphans. The second solution offered is an alternative method of conducting analysis under the progressive realization standard. Economic, social, and cultural rights can be examined and …
"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 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. …
Taking Shots At Private Military Firms: International Law Misses Its Mark (Again), Kevin H. Govern, Eric C. Bales
Taking Shots At Private Military Firms: International Law Misses Its Mark (Again), Kevin H. Govern, Eric C. Bales
Fordham International Law Journal
Part I of this Article takes a brief tour through military history on the consistent use of mercenaries through the ages, which Peter Singer illuminates masterfully in Corporate Warriors. Next, a brief overview on the binding nature (or not) of international custom and treaty is explored in Part II and then the codifications of international law are taken up in Part III, beginning with the Hague and Geneva Conventions. Several United Nations (“U.N.”) instruments are analyzed for their efficacy in changing the long-standing customary international law on the use of mercenaries and whether or not each is applicable to PMF …