International Law Commons^™

Dazzling The World: A Study Of India's Constitutional Amendment Mandating Reservations For Women On Rural Panchayats, Eileen Kaufman, Louise Harmon

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No abstract provided.

Wings For Talons: The Case For Extraterritorial Jurisdiction Over Sexual Exploitation Of Children Through Cyberspace, Christopher L. Blakesley

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To cope more effectively with the changed landscape of child exploitation, it is necessary for laws to expand their extraterritorial reach. Some statutes in the “child exploitation arena” have already been ruled to apply extraterritorially. The prime example of this is 18 U.S.C. § 2252 (2004) (certain activities relating to the material involving the sexual exploitation of minors). Two of the more useful statutes in combating online pedophiles are 18 U.S.C. § 1470 (2003) (transfer of obscene materials to minors) and 18 U.S.C. § 2422 (2003) (coercion and enticement). These latter statutes, however, have yet to receive significant or …

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

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In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …

Comment, Post-War Iraq: Prosecuting Saddam Hussein, Elizabeth Chamblee Burch

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On January 9, 2004, the United States officially declared Saddam Hussein a prisoner of war and indicated that it will turn him over to a special court established by the Iraqi Governing Council under the direction of the Coalition Provisional Authority. Yet, prosecution in this forum fails to ensure proof of guilt beyond a reasonable doubt as required by Article 14 of the International Covenant on Civil and Political Rights and does not prohibit the death penalty. Further, such prosecution requires the application of Iraqi criminal law and procedure where otherwise unarticulated in the statute creating it. This might allow …

Rhetoric Or Rights?: When Culture And Religion Bar Girls' Right To Education, Elizabeth Chamblee Burch

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Women account for almost two-thirds of the world's illiterates. In the year 2000, the World Education Forum met in Dakar, Senegal and set goals to (1) eliminate gender disparities in primary and secondary education by 2005, and (2) achieve gender equality in education by 2015. Two months before 2004, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) reported that sixty percent of the 128 countries that attended the Dakar Conference would not meet these goals. The report attributed the failure to sharp discrimination against girls in social and cultural practices.

The report failed to mention that social and cultural …

Non-State Actors In The Nuclear Black Market: Proposing An International Legal Framework For Preventing Nuclear Expertise Proliferation & Nuclear Smuggling By Non-State Actors, Thomas V. Burch

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While there are a number of disincentives that prevent states from participating in the nuclear black market, most of these deterrents do not apply to non-state actors. This article focuses on the difficulties this situation presents in a time of global terrorism. The author points out that terrorists already have the money, means and motive to build or purchase nuclear devises. In analyzing this issue the author proposes two options. First, member parties could amend one of all of several existing treaties of the subject. Second, the international community can draft a new treaty or convention on nuclear smuggling and …

Guantánamo, Diane Marie Amann

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This article addresses not only offshore detainees at Guantánamo and elsewhere, but also the two Americans and one Qatari held in the United States as enemy combatants. It focuses on the critical issues in U.S. litigation - extraterritoriality and deference - yet also examines the scope of detention and the propriety of proposed special tribunals. After demonstrating that in the wake of September 11, 2001, no U.S. constitutional precedent governed these issues, the article then looks to norms drawn from international humanitarian and human rights law to aid decision. The Supreme Court increasingly consults such external norms as persuasive authority; …

Introduction: From Autocracy To Democracy: The Effort To Establish Market Democracies In Iraq And Afghanistan, David Shipley, Clete D. Johnson

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These remarks were made at the Georgia Journal of international and Comparative Law's conference of April 16, 2004, "From Autocracy to Democracy: The Effort to Establish Market Democracies in Iraq and Afghanistan."

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

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As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

The American Challenge To International Law: A Tentative Framework For Debate, Harlan G. Cohen

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The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay …

Misreading A Canonical Work: An Analysis Of Mansfield's 1994 Study, Paul J. Heald

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It would be hard to overestimate the influence of Edwin Mansfield's 1994 empirical study for the International Finance Corporation (an arm of the World Bank) of American business executives' attitudes toward low levels of intellectual property protection in developing nations. His paper is ubiquitously cited for the proposition that if developing countries raise their level of intellectual property protection (especially patents), they will attract foreign investment and technology transfer. In the spirit of the honoree of this symposium, I take a skeptical new look at a canonical work and conclude that the developing world should be very suspicious of the …

The Economics Of Uniform Laws And Uniform Law Making, John Linarelli

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Uniform law making has a substantial history in the twentieth century. It seems to be continuing with some force into the twenty-first century. A significant American law and economics literature, however, questions its merit. By contrast, there have been limited rational choice oriented investigations of unification or centralization of law in Europe. Critics of the uniform law movement in the United States use methods of analysis influenced by public choice theory, political economics and positive political theory. The paper does not call into question the methods and assumptions of these approaches. The paper claims that economic analysis supports public policy …

Ruminations On Terrorism & Anti-Terrorism In Law And Literature, Christopher L. Blakesley

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Discussing terrorism in light of the September 11 atrocities is daunting. It requires one to wonder how to maintain an equilibrium in the face of a menace that wishes its own death as long as it flows from the slaughter of ‘the enemy.‘ How is it possible to combat this menace without falling into a trap of hatred or blind fear that leads to the use of terror to fight terrorism? The overarching issues relating to September 11, terrorism, and counter-terrorism include: whether oppression can provide any justification for that atrocity; similarly, whether that attack calls for or allows self-defense …

Anticipatory Repudiation Of Letters Of Credit, Keith A. Rowley

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Letters of credit play a vital role in financing international transactions, and are becoming increasingly popular domestically as substitutes for more traditional secured financing. As such, they deserve substantially more scholarly attention than they receive outside of specialized treatises and banking trade publications. Moreover, as unilateral promises by issuers of the letters of credit to pay money to their beneficiaries, the fact that Article 5 of the Uniform Commercial Code and pre-UCC common law recognize the right of a beneficiary to sue for anticipatory repudiation is at odds with the prevailing rule in this country that a promisee cannot sue …

Is Truth In The Eye Of The Beholder? Objective Credibility Assessment In Refugee Status Determination, Michael Kagan

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Credibility assessment is often the single most important step in determining whether people seeking protection as refugees can be returned to countries where they say they are in danger of serious human rights violations. Despite its importance, credibility-based decisions in refugee and asylum cases are frequently based on personal judgment that is inconsistent from one adjudicator to the next, unreviewable on appeal, and potentially influenced by cultural misunderstandings. Some of the people who need protection most are especially likely to have trouble convincing decision-makers that they should be believed.

This article sets out principles, standards, and criteria drawn from international …

Assessing International Criminal Adjudication Of Human Rights Atrocities, Diane Marie Amann

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These remarks were presented on January 5, 2001, as part of a panel on international criminal adjudication at a conference entitled "Into the 21st Century: Reconstruction and Reparations" in Cape Town, South Africa.

The United States joined a number of countries that rushed to sign the treaty to establish the International Criminal Court. They included states like Yemen, Iran, and Israel. These three, along with the United States, were among the few that had refused to vote in favor of the treaty when it was adopted at a diplomatic conference in Rome in 1998. By the end of 2000, 139 …

Symposium On The Ilc's State Responsibility Articles: Introduction And Overview, Daniel M. Bodansky, John R. Crook

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In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission's longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend[ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

The ILC articles address the fundamental questions: when does a state breach an international obligation and what are the legal consequences? Rather than attempting to define particular “primary” rules of conduct, the …

Employer Beware? Enforcing Transnational Labor Standards In The United States Under The Alien Tort Claims Act, Sarah J. Adams-Schoen

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The Alien Tort Claims Act (ATCA) arguably allows non-U.S. citizens to bring claims for violations of customary international law (CIL). Although CIL litigation typically embraces only egregious human rights violations, the scope of CIL actually encompasses all universally recognized rights, including some labor rights. This Comment explores the possibility that the ATCA may be used to litigate claims by non-U.S. citizens alleging violations of international labor rights. It concludes that the Act likely provides a vehicle for aggrieved employees to bring suit in U.S. court for violations of international labor standards. Finally, this Comment recognizes that the impact of ATCA …

The Economics Of Private Law Harmonization, John Linarelli

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No abstract provided.

Persecution In The Fog Of War: The House Of Lords’ Decision In Adan, Michael Kagan, William P. Johnson

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International law requires that a refugee have a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. It is not enough to be at risk of being persecuted, nor is it even enough to be a member of a particular race or religion. There must be a “nexus” between the danger and one of the five Convention-recognized reasons for persecution. In the 1998 decision in Adan v. Secretary of State for the Home Department, the House of Lords concluded that a man fleeing clan warfare in Somalia could not …

The Terrors Of Dealing With September 11th, Christopher L. Blakesley

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No abstract provided.

Trade-Related Aspects Of Intellectual Property Rights And Biotechnology: European Aspects, John Linarelli

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There does not seem to be a widely held view among WTO members of the proper role and scope of TRIPS. One of the main reasons why TRIPS is controversial is because it allocates rights in innovation, some would say beyond the bounds of what a trade agreement should seek to do. The lines of the debate are often conceptualized in terms of 'developing' versus 'developed' country differences. One of the major areas of disagreement is how TRIPS deals with rights in biotechnology. Some developing countries are relatively rich in biodiversity and traditional knowledge but poor in capital and scientific …

A Common Private Law For Europe, Alan Watson

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A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

The United States Of America And The International Criminal Court, Diane Marie Amann, M.N.S. Sellers

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The United States of America has not ratified the treaty establishing a permanent international criminal court, and it is highly un-likely to do so. This is not simply a question of delay caused by cumbersome ratification procedures; rather, it reflects deep-seated opposition by the U.S. executive branch and by many members of Congress. The United States voted against the Rome Statute of the International Criminal Court when it was adopted on July 17, 1998, at the U.N. Diplomatic Conference of Plenipotentiaries. President William J. Clinton approved signature of the statute on the last day that a state, by signing, could …

Hemispheric Integration And The Politics Of Regionalism: The Free Trade Area Of The Americas (Ftaa), Christopher M. Bruner

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This article examines negotiations toward a Free Trade Area of the Americas (FTAA). It seeks to discern what key negotiating parties want out of such an agreement, and the means through which they have sought to achieve their disparate goals.

The United States and Brazil, in particular, have employed complex negotiating strategies in order to gain theupper hand - strategies prompted by a variety of economic and political dynamics at domestic andsubregional levels. These dynamics include the significant pressure exerted on U.S. policy-makers by constituent groups sensitive to globalization's impact on labor and the environment, as well as the challenge …

Intervention In Roman Law: A Case Study In The Hazards Of Legal Scholarship, Peter A. Appel

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In this Article, I offer a case study of one of the hazards presented by legal scholarship in law reviews as it has evolved over the last century. The standard law review article typically begins with an overview of the author's subject, frequently involving a historical perspective or a chronology of the development of a doctrine. This background section stems from a number of causes, but many attribute it to the fact that most law reviews are student-edited. In order to evaluate an author's argument, students need a brief course in, say, the basics of trade law and pollution control …

Capital Punishment: Corporate Criminal Liability For Gross Violations Of Human Rights, Diane Marie Amann

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These remarks were presented on February 24, 2001, in a panel concluding a conference entitled "Holding Multinational Corporations Responsible Under International Law" at Hastings College of the Law, San Francisco, California.

Cultural Relativism, Economic Development And International Human Rights In The Asian Context, Richard Klein

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No abstract provided.

Calling Children To Account: The Proposal For A Juvenile Chamber In The Special Court For Sierra Leone, Diane Marie Amann

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In a unique proposal to the United Nations Security Council, U.N. Secretary-General Kofi Annan recommended that a Juvenile Chamber of the Special Court have authority to try defendants as young as fifteen. The plan sparked immediate controversy. Sierra Leoneans wanted the worst perpetrators punished regardless of age, while human rights organizations argued that juvenile prosecutions would weaken rehabilitative efforts. The Security Council subsequently diluted the proposal; nevertheless, it merits examination, given the increasing use, in Africa and around the world, of children in combat.

Harmonic Convergence? Constitutional Criminal Procedure In An International Context, Diane Marie Amann

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Throughout the world, a trend toward a shared - a constitutional - criminal procedure may be detected. It is evident in common-law, civil-law, and mixed systems: individual states like China adopt laws promising once-alien concepts like a presumption of innocence, even as supranational bodies like the International Tribunal for the former Yugoslavia debate how to adapt certain norms to a hybrid structure. Some have suggested that such developments may herald a harmonic convergence of criminal procedure rules. This Article examines the likelihood of such a convergence. It establishes as a keynote around which harmony may develop the model of constitutional …