International Law Commons^™

Sixty Years In The Making: The Definition Of Aggression For The International Criminal Court, Keith A. Petty

UC Law SF International Law Review

The post-war trials of Axis, war criminals marked the last time that the crime of aggression was prosecuted. Today, the Special Working Group on the Crime of Aggression (SWG) is nearing agreement on a definition that will likely be adopted by the Assembly of States Parties to the International Criminal Court (ICC) - a prerequisite to the Court's exercise of jurisdiction over this, particular offense. In spite of decades of work, several key issues remain to be resolved before the definition is finalized. These include: The level of involvement of the Security Council in determining when a State commits aggressive …

Balancing, The Global And The Local Judicial Balancing As A Problematic Topic In Comparative (Constitutional) Law, Jacco Bomhoff

UC Law SF International Law Review

Courts in Europe, North America and elsewhere frequently use the language of "balancing" when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or "weighing," to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force …

Recognition And Enforcement Of U.S. Punitive Damages Awards In Continental Europe: The Italian Supreme Court's Veto, Francesco Quarta

UC Law SF International Law Review

Once again, a European court denied the enforcement of a U.S. punitive damages award. Different actors, same outcome: punitive damages are deemed contrary to public policy in Europe, where the different national systems of civil liability do not seek punishment, but strict compensation. This article studies the developments of punitive damages within the United States, highlighting the anomalies that such doctrine carries with regard to both private and criminal law. Among the explicit goals of this study is the disclosure of the main (constitutional) hurdles which the Italian legal system poses to the judicial recognition of U.S. punitive damages awards. …

Constitutional Changes, Transitional Justice, And Legitimacy: The Life And Death Of Argentina's "Amnesty" Laws, Jose Sebastian Elias

UC Law SF International Law Review

The article analyzes in-depth the legal and political process through which Argentina came, first, to grant amnesty to former military officers who took part in the repression during the last dictatorship (1976-1983) and then, to nullify those "amnesties" and indict the officers again eighteen years later. The thematic core is the legitimacy (or lack of it) of constitutional changes carried out by these unconventional means, which were the unavoidable consequence of the difficult process of transitional justice in Argentina.

Section I gives an overview of the most salient legal and political facts of the last twenty-five years and poses the …

Worldwide Corporate Convergence Within A Pluralistic Business Legal Order: Company Law And The Independent Director System In Contemporary China, Chi-Wei Huang

UC Law SF International Law Review

This article will introduce both the dominant corporate model and corporate ownership structure as well as the model for the most efficient corporate governance system under the New Pluralistic Business Legal Order, as promoted by the proponents of the theory of global convergence of corporate governance. The author discusses how this phenomenon impacts China's corporate governance system during its ongoing economic and legal reforms. The author identifies the path dependencies and other problems the Chinese corporate governance system has been encountering, and suggests measures to address these problems. The article concludes by exploring why the path dependencies are harder to …

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, Kristoffel Grechenig, Martin Gelter

UC Law SF International Law Review

Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors. First, American legal realism enjoyed great success, whereas the German freelaw movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

International Law And Legitimacy And The Palestine Question, Rashid Khalidi

UC Law SF International Law Review

In this speech delivered at the Fourth Annual Rudolf B. Schlesinger Memorial Lecture on October 25, 2006, Rashid Khalidi discussed aspects of the history of how international law and the growing 20th century framework of international legitimacy emerging from the League of Nations and the United Nations have intersected with the issue of Palestine over the past century or so. Indeed, in some measure, the treatment of the Palestine issue by these two bodies has shown the limits of international law, and of an international order founded on it. In making policy on Palestine over most of the past century, …

Ireland Goes Bananas: Irish Insider Trading Law And Price-Sensitive Information After Fyffes V. Dcc, Jeremiah Burke

UC Law SF International Law Review

In Fyffes v. DCC, the Irish High Court ruled that James Flavin, a non-executive director of the banana distributer, Fyffes PLC, did not engage in insider trading. The case is Ireland's most significant ruling on insider trading because it clarifies the test, under Irish law, for determining whether information available to an insider is price-sensitive. A comparison of Irish and American securities law reveals that an American court may have viewed Flavin's dealings as insider trading because American courts focus on whether non-public information is material. While Fyffes was not a sympathetic plaintiff, the Irish statutory focus on price-sensitive information …

Nao Valel A Pena (Not Worth The Trouble?) Afro-Brazilian Workers And Brazilian Anti-Discrimination Law, Benjamin Hensler

UC Law SF International Law Review

In this paper Benjamin Hensler examines the paradoxical underdevelopment of Brazilian antidiscrimination law and its impact on the country's Afro-Brazilian population - a group that includes more than 40% of Brazil's citizens, and the vast majority of its poor. The author considers why, despite the presence of both widespread racial discrimination in the country's private labor market and explicit prohibitions on employment discrimination in its constitution, there has been - until quite recently - a glaring absence of successful legal challenges to racial discrimination by Afro-Brazilian workers. His paper discusses the interwoven relationships among three key factors that have inhibited …

Deportation Of Human Rights Abusers: Towards Achieving Accountability, Not Fostering Impunity, Simona Agnolucci

UC Law SF International Law Review

This article discusses recently enacted changes to U.S. immigration law allowing for deportation of violators of international human rights norms. By (1) examining Canada's implementation of similar immigration-based accountability measures for human rights violators; (2) analyzing three cases of alleged human rights violators who left their countries of origin; and (3) discussing deportation. of human rights violators in light of traditional theories of criminal punishment, this paper concludes that deportation alone is an inadequate means of achieving accountability. The article concludes with a series of guidelines for determining whether deportation should be used as part of a greater scheme to …

From Mice To Men: Genetic Doping In International Sports, Kristin Jo Custer

UC Law SF International Law Review

Elite athletes have a long history of using various doping methods to enhance performance, from ingesting cocaine to injecting growth hormones. The World Anti-Doping Agency has taken a number of steps to rid sports of doping to level the playing field for all athletes. A new frontier in doping, however, is beginning to emerge in the form of genetic doping, whereby athletes may alter their genetic makeup to improve performance and speed recovery from injuries. This note discusses various legal implications and concerns of the rising threat of genetic doping to international sports.

You Say You Want A Revolution: Argentina's Recovered Factory Movement, Adam David Cole

UC Law SF International Law Review

The Recovered Factory Movement in Argentina - in which workers assume control and ownership of factories abandoned by their owners - has piqued the interest of social activists worldwide. However, despite a noticeable buzz within leftist circles, the movement has received little more than a cursory examination from its enthusiasts. This note attempts to nudge the discourse in a substantive direction by explaining the pertinent law, discussing the changes sought by the movement, and analyzing the accompanying policy issues. In so doing, this note is meant to serve as a starting point to encourage more exhaustive treatment of the relevant …

End-Of-Life Decisionmaking For Patients In Persistent Vegetative States: A Comparative Analysis, Suzanne Rode

UC Law SF International Law Review

The attention that the Schiavo case has brought to end-of-life decisionmaking presents an opportunity to re-examine current laws addressing treatment for incompetent patients. In the United States, the right to self-determination is the primary value in making treatment decisions for incompetent patients. Alternatively the United Kingdom and Australia recognize a more objective "best interest" approach, and Japan places primary importance on the role of families in end-of-life decisionmaking. This note describes these different approaches to making treatment decisions for patients in persistent vegetative states and explores how the "best interest" and family-centered approaches can inform and improve healthcare law in …

The Hague Convention On The Civil Aspects Of International Childhood Abduction: Where Are We, And Where Do We Go From Here, Dan Beth Finkey

UC Law SF International Law Review

Each year, hundreds innocent children are abducted from their homes and taken to foreign countries - victims of international parental abduction. In 1980, the U.N. developed The Hague Convention on Civil Aspects of International Childhood Abduction in order to protect children from wrongful international abduction, and to ensure that abducted children are safely returned to their homes. Although scholars laud the Convention as being generally effective, perverse results sometimes arise in the U.S., where courts are struggling to interpret the Convention's provisions so that they do not harm victims of domestic violence. This note suggests a novel way to improve …

A Moral Imperative: The Human Rights Implications Of Climate Change, Sara C. Aminzadeh

UC Law SF International Law Review

Even conservative forecasts of climate change predict dramatic effects to environments, economies, and people around the world. Though the causal link between climate change and human rights is not as readily apparent as with other environmental issues, climate change impacts public health, food security, infrastructures, and natural resources. For the Inuit living in the rapidly melting Arctic, and citizens of small island developing states facing sea level rise, climate change has become a matter of human rights. This note explores the effect of climate change on human rights, such as the right to life and the right to health, as …

The Use Of Offensive Force In U.N. Peacekeeping: A Cycle Of Boom And Bust, James Sloan

UC Law SF International Law Review

U.N. peacekeeping operations have traditionally been expected to adhere to three key principles: they must operate with the consent of the host state, they must act impartially and they must limit their use of force to self-defense. This article focuses on the final characteristic, the self-defense principle, and chronicles the attitude of the U.N. towards its observance. As the article will show, there have been three main periods where the self-defense principle has been ignored: with ONUC operation in the Congo in the early 1960s, with several missions in the early 1990s and, finally, with the current period, beginning in …

Agreeing To Disagree: Cultural Relativism And The Difficulty Of Defining Terrorism In A Post-9/11 World, Sami Zeidan

UC Law SF International Law Review

Paradoxically, in a post-9/11 world where there is an unprecedented international joint response to counter-terrorism, there is still no universal, permanent and comprehensive definition of terrorism. This essay exposes the legal and political issues arising from the tension created between the universal agreement to coordinate counter-terrorism efforts on the one hand, and the proliferation of culturally relativistic definitions of terrorism on the other.

France: Banning Legal Pluralism By Passing A Law, Jessica Fourneret

UC Law SF International Law Review

On March 15, 2004, French president Jacques Chirac enacted a law prohibiting public school students from wearing clothing and insignia that manifests a religious affiliation. The clear aim of the law was to prohibit female Muslim students from wearing headscarves to public schools. Critics of the ban state that wearing the headscarf is a Muslim woman's religious duty, akin to a law she must follow. This article explores the Western system of laws and the conflict between that system and religious belief systems which impose differing sets of laws. The author examines the impossible choice imposed on school-aged children as …

Farmers In The Ip Wrench - How Patents On Gene-Modified Crops Violate The Right To Food In Developing Countries, Peter Straub

UC Law SF International Law Review

Patented gene-modified crop seeds have a growing impact on how farming is done in the countries where they are sold and used. Modem patent regimes make all plants and plant material containing modified gene-material subject to the intellectual property rights of transnational corporations. Farmers are then faced with the choice of either entering into licensing agreements, or becoming patent infringers-with all the legal consequences-by marketing the fruits of their labor. This article examines how socioeconomic rights-especially the right to food as defined by Article 11.2 of the International Covenant on Economic, Social and Cultural Rights (CESCR)-of small-hold subsistence farmers in …

A Comparative Look At The Right To Refuse Treatment For Involuntary Hospitalized Persons With A Mental Illness, Jennifer Fischer

UC Law SF International Law Review

The issues surrounding the legal responsibility of caring for and maintaining a person with a mental illness go back almost 2500 years. There has been considerable debate about the questions of involuntary hospitalization and the right to refuse treatment in the past few decades, especially in North America and Western Europe. As the importance of mental health and rights of persons with mental disabilities take on greater significance internationally, however, the debate is moving to the rest of the world. The objective of this article is to look at the various perspectives in the current debate and at how different …

Russian Web Sites Jeopardize U.S. Users: The Dangers Of Importing Copyrighted Material Over The Internet, James Chapman

UC Law SF International Law Review

Russian web sites offer electronic versions of copyrighted music over the Internet for pennies a song. Protected by international borders and favorable domestic legal constraints, these Russian music distributors sell songs at much lower prices and without anti-piracy protections. The web sites claim the right to sell the music under Russian law, and unknowing purchasers are buying music believing they have finally found a cheap, legal, and moral alternative to domestic vendors and P2P networks. However, common misunderstandings of the copyright law may be placing purchasers of music from these Internet sites in danger of criminal and civil sanctions. This …

Queer Refuge: A Review Of The Role Of Country Condition Analysis In Asylum Adjudications For Members Of Sexual Minorities, Arwen Swink

UC Law SF International Law Review

More than 80 countries around the world have laws criminalizing sexual activity between consenting adults of the same sex. Physical and sexual abuse, harassment, detention, and extortion by police are common means of enforcing these laws. For many LGBT people who have been subjected to or who rightly fear persecution, political asylum may offer hope of protection, but the asylum process is not without its pitfalls. This article seeks to explore some of the difficulties the asylum adjudication process may pose for LGBT people seeking refuge from persecution. Specifically, this article addresses the various ways in which asylum adjudicators in …

The Emergence Of The Hellenic Deliberative Ideal: The Classical Humanist Conception Of Comparative Law, Richard Brooks

UC Law SF International Law Review

Modern comparative law is based upon the failed Enlightenment premise of comparative law as legal science. Awareness of the earlier writings of Hellenic historians, philosophers, rhetoricians, and dramatists suggest that comparative law should be conceived as a process of political deliberation. Herodotus, Thucydides, and Polybius suggest how history frames the choices which comparativists must make. Aristotle and Plato demonstrate how to deliberate about conflicting laws and legal regimes. The rhetorician, Isocrates, argues for rhetoric to be brought to bear on the debates about different legal regimes. The Greek dramatists portray the anguish and regret which necessarily follows the final choice …

Beyond Good Intentions: Can Hybrid Tribunals Work After Unilateral Intervention, John Dermody

UC Law SF International Law Review

The use of a hybrid tribunal - a tribunal comprised of both international and domestic elements - was advocated in the wake of the Iraq war and the capture of Saddam Hussein. The hybrid model is considered to offer significant advantages over purely international and purely domestic tribunals. Although hybrid tribunals have been used in Kosovo, East Timor, and Sierra Leone, the hybrid model has yet to be implemented after unilateral intervention. This note examines whether the hybrid model is feasible and whether the advantages of the hybrid model can be maintained in the wake of unilateral intervention.

Looking Over A Crowd And Picking Your Friends: Civil Rights And The Debate Over The Influence Of Foreign And International Human Rights Law On The Interpretation Of The U.S. Constitution, Stanley A. Halpin

UC Law SF International Law Review

Since the 1940s Civil Rights advocates have attempted, with little success, to use International Human Rights law to protect the rights of African Americans in the United States. However, in recent terms, the United States Supreme Court has seemingly opened the door, at least a crack, to some limited recognition of international human rights norms as a legitimate influence upon their interpretation of the Constitution. This article examines the efforts of Civil Rights Advocates to utilize human rights law and develops from this history four models of enforcement of human rights law in the United States. It details the Court's …

A Golden State Solution To The Israeli-Palestinian Water Conflict, Brandon Hollinder

UC Law SF International Law Review

Israel and the Palestinian territories face a shortage of water resources that have created tensions at the center of the current political conflict between the two parties. Many of these resources are subject to dual control and authority as well as continuing degradation and overuse, all of which exacerbate the situation. This paper offers a solution to that problem: the adoption of a Water Board with authority over the combined region of Israel and the Palestinian territories. This Board would employ and enforce laws based upon current California Water Law with a few minor, yet critical, changes. This solution offers …

Recent Developments In The Debate Concerning The Use Of Foreign Law In Constitution Interpretation, Lisa Sofio

UC Law SF International Law Review

Comparative analysis, the interpretive technique of using foreign and international law to better understand the United States Constitution, may be a valuable tool for modern judges. Legislative proposals and statements made by various members of Congress reveal that Congress is opposed to the judiciary's use of comparative analysis and appears prepared to take drastic measures to prevent judges from looking to foreign law to answer difficult questions. This note explores the propriety and reasons for this response and explores whether comparative analysis has merit as an interpretive tool.

Misconceptions, Miscalculations, And Mistakes: P2p, China, And Copyright, Tao Leung

UC Law SF International Law Review

The entertainment industry initially treated the advent of peer-to-peer ("P2P") technologies as a death-knell for copyright protections and attempted to fix the perceived problem with solutions that were misguided, litigious, ineffective, and costly. By viewing P2P technology as a threat, the industry failed to capitalize on a new technology that might have provided limitless opportunity. Moreover, the recording industry's narrow-minded attempt to curtail illegal file sharing mirrored the U.S. government's attempt to enforce intellectual property protection in China. Both the entertainment industry and the United States failed to understand the economic, social, and cultural realities in the areas in which …

Headscarf Stories, Ian Ward

UC Law SF International Law Review

The seemingly intractable issue of headscarves - when they can be worn, and when they cannot - is currently contested in much of Europe. The apparent intractability is a common experience. The purpose of this article is to present three headscarf 'stories,' and in so doing, stress the narrative nature of this intensely moral and political, as well as legal, controversy. Narrativity, it will be suggested, offers a far more effective means of approaching this kind of issue and its inevitable indeterminacies than the simple recourse to blunt legal instrumentation. While the law must, it seems, play a role in …