International Law Commons^™

The European Free Trade Association Court And Positive Action, Thomas Trelogan, Steve Mazurana, Paul Hodapp

UC Law SF International Law Review

"Affirmative Action" in the United States, "Positive Action" in Europe. Although Europeans and Americans have both enacted laws to prevent discrimination based on gender, the differences have been in more than just name. In this introduction to "positive action" law, the authors provide an overview of the European Court of Justice, the European Free Trade Association Court, and how disputes over positive action are resolved in Europe. The authors then conclude with a discussion of a representative positive action case.

Can't We Enlarge The Blanket And The Bed - A Comparative Analysis Of Positive/Affirmative Action In The European Court Of Justice And The United States Supreme Court, Thomas Trelogan, Steve Mazurana, Paul Hodapp

UC Law SF International Law Review

In a time when race-based affirmative action is the focal discrimination issue in the United States, the subject of gender equality runs the risk of stagnation. The authors return the attention to sex-based affirmative action by examining the arguments for and against European positive action plans, and several of the resulting European Court of Justice cases. The authors conclude with a comparison to similar gender-based discrimination laws in the United States, and a discussion of the similarities and differences of the two systems.

De Facto Abandonment Of Territoriality: Protection Of (Not-So-) Well-Known Foreign Trademarks In Japan And The United States, Ryota Charles Goto

UC Law SF International Law Review

In an ever-more interconnected world, it becomes increasingly important for a business to protect its trademark on a global scale. Japanese Trademark law Article 4(1)(xix), combined with other provisions, has proven to be generally effective in defending the rights of foreign trademark owners. On the other hand, U.S. law regarding the protection of foreign trademarks has remained surprisingly and disappointingly static. The author proposes that Person's v. Christman be overruled and that a provision identical or similar to Japanese Trademark Law Article 4(1)(xix) be adopted.

Descent Into Authoritarianism: Barriers To Constitutional Rule In Belarus, Eric R. Reed

UC Law SF International Law Review

The switch from authoritarianism to constitutional democracy has found varying levels of success in the former Soviet republics. Belarus, under President and former collective farm manager Alexander Lukashenka, has reverted from a promising democracy back to an authoritarian regime. This note begins with the historical underpinnings of Belarus' democratic collapse, and then examines the political, social, and judicial factors that contributed. The author concludes with a discussion of how Belarus might regain its democratic footing.

A Toothless Tiger: President Uribe's Proposed Amnesty Bill, Sarah R. Sandford-Smith

UC Law SF International Law Review

On August 21, 2003, Colombian President Alvaro Uribe presented a bill that would permit certain paramilitary and guerilla leaders to avoid prison for gross human rights violations. These individuals would merely have to pay a fee - as reparations to the victims and their families. This note begins by discussing the history behind the bill, and then looks at two possible alternatives: a United Nations truth commission and jurisdiction by the International Criminal Court. The author concludes by suggesting that a truth commission would be the best solution.

Reparations Decisions And Dilemmas, Naomi Roht-Arriaza

UC Law SF International Law Review

The International Bill of Rights declares a right to a remedy for violations of human rights. States are obliged to provide remedies for violations, both as a matter of treaty law and as part of the general rules of state responsibility. The U.N. Human Rights Commission and its Subcommission have formulated draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (Principles), which outline restitution, rehabilitation, compensation and satisfaction as interlinked but distinct obligations on states. In addition, the statute of the newlycreated International Criminal Court …

Legalistic Individualism: An Alternative Analysis Of Kagan's Adversarial Legalism, Michael Dominic Meuti

UC Law SF International Law Review

An underlying ethos of American law is that an adversarial setting is a prerequisite for proper resolution of a dispute. But is that accurate? Comparative scholars have illustrated the diversity of methods available. In Adversarial Legalism, Robert Kagan considers the merits of these alternative systems. Although the book is not intended as a comprehensive agenda for reform, Kagan's message is clear: our procedures and methods for resolving disputes are a matter of choice, no matter how natural or entrenched they may appear to be. To the extent they do not serve us well, we should exercise our ability to make …

Legal War: When Does It Exist, And When Does It End, John Alan Cohan

UC Law SF International Law Review

The popular conception of war is clearly different from war in the legal sense. It is important to ascertain when war in the formal, legal sense (Legal War) exists because various legal consequences attach. However, when a Legal War exists between belligerent states is far from certain. Few wars are waged pursuant to a formal declaration, and there is substantial disagreement as to when a Legal War has ended. Further complicating the problem, governments have engaged in significant armed conflicts while vigorously denying a state of war has existed between them, notwithstanding the obvious state of belligerency, the engagement of …

Preemption, Prevention And Anticipatory Self-Defense: New Law Regarding Recourse To Force, Thomas M. Franck

UC Law SF International Law Review

On September 17, 2002, the National Security Strategy was published. This paper outlines the reach of the Strategy, focusing on the extent it creates new ground in asserting a right to use "preemptive" force. Traditional notions of anticipatory self-defense, found in the Caroline Doctrine, have been extended such that the Strategy allows the United States to respond with force to "rogue states before they are able to threaten" an attack. But, who has the right to determine whether a state may someday constitute a threat?

Professor Franck's Lament, Abraham D. Sofaer

UC Law SF International Law Review

Not only does the National Security Strategy rely on the use of force, but it also advocates other means of achieving security, such as diplomacy and alliances. In contrast to Professor Franck, this paper defends the approach the Bush Administration has taken with regards to the National Security Strategy. The text of the Strategy does not give the United States the power to use force whenever it feel that its superiority is threatened. The U.N. Charter also does not prohibit a state from using force to preserve the integrity of that state.

Unipolar Disorder: A European Perspective On U.S. Security Strategy, Diane Marie Amann

UC Law SF International Law Review

The publication of the National Security Strategy provoked debate throughout the United States and Europe. This paper examines the Strategy from a European viewpoint; a perspective that prefers dialogue to dictate. By examining the United States' actions through the eyes of Europeans, the United States may better understand its audience, and itself.

The Bush Doctrine: Making Or Breaking Customary International Law, Joel R. Paul

UC Law SF International Law Review

The international legal system operates to minimize violence. This paper examines whether the Bush Doctrine violates or creates international law. If the Bush Doctrine is understood to mean that only the United States may use force preemptively, then it is not creating law; it is merely a unilateral assertion of power. If, on the other hand, all states may use the Bush Doctrine to act to prevent war, then violence is maximized. In order for the Bush Doctrine to be accepted as law, there must be a limiting principle.

The Rule-Outcome Paradox, Madness Cascades And The Fog Of Preemption: Seeking The Best Rule For Use Of Force, David D. Caron

UC Law SF International Law Review

The National Security Strategy emphasizes outcomes as opposed to process. This paper discusses the differences between those who value process and those who seek immediate answers to a dangerous situation presented before them, particularly in relation to the Bush Administration's actions in Iraq. Those who value process speak in terms of the law and look to see how actions will effect the future. Those who value outcomes will emphasize the reality of the moment. These viewpoints divide the reactions to the Bush Administration's threat prevention use of force doctrine.

Is Capitalism Un-American - An Analysis Of Corporate Inversions And Expatriation Proposals In Response, Eric Tak Han

UC Law SF International Law Review

Reincorporating companies have been called "Benedict Arnold corporations" by many U.S. politicians. However, reincorporation (corporate inversion) reduces a corporation's costs, and therefore, maximizes its profits. This note discusses the tax benefits corporations receive if they reincorporate outside of the United States, and suggests that this reincorporation does not cause a loss of jobs; rather, the decision not to reincorporate may lead to a loss of jobs in the United States, because these domestic corporations cannot compete on the global market. This note looks at the U.S. tax system by comparing two corporations, Tyco International Inc., a company that did reincorporate, …

Venezuela: How A Hydrocarbons Law Crippled An Oil Giant, Stacy Rentner

UC Law SF International Law Review

In November 2001, Venezuelan president Hugo Chavez Frias unilaterally enacted the new Decreto con Fuerza de Ley Organica de Hidrocarburos (Hydrocarbons Law), which completely restructured the oil industry, the driving force of Venezuela's economy, for the first time in nearly 60 years. This single-handed restructuring of the country's central industry outraged Venezuelans and proved to be the final blow to Chavez's already waning popularity. In an attempt to convince Chavez to step down from the presidency, Venezuelan oil workers initiated a strike, which was accompanied by a national work stoppage in all areas of the economy. February 2003 marked the …

Forum Selection For International Dispute Resolution In China - Chinese Courts Vs. Cietac, William Heye

UC Law SF International Law Review

The large volume of foreign-invested entities in China has created a need for reliable dispute resolution. Chinese law does not allow for foreign courts or foreign arbitration; as a result, foreign-invested entities must chose between the Chinese courts and the Chinese International Economic Arbitration Commission. However, many foreign parties are skeptical of the Chinese courts, and have chosen arbitration. This note suggests that not only may a satisfactory outcome for a foreign party be possible in the Chinese courts, but that the Chinese courts may be a better option for foreign-invested entities seeking to prevail in a suit against a …

Introduction: Brief Of Amici Curiae, William S. Dodge

UC Law SF International Law Review

No abstract provided.

Brief Of Professors Of Federal Jurisdiction And Legal History As Amici Curiae In Support Of Respondents, Nicholas W. Van Aelstyn, William S. Dodge

UC Law SF International Law Review

No abstract provided.

Comparative Legal Responses To Terrorism: Lessons From Europe, Jeremie J. Wattellier

UC Law SF International Law Review

After September 11, 2001, the U.S. Congress and President initiated legal changes to combat terrorism. In the late 20th century, Europe also experienced terrorist attacks on its soil and initiated legal adaptations. Europe's legal history with terrorism shows that harsh procedure-stripping rules do not stop terrorism and come at great costs in civil liberties and legal clout. More procedural safeguards would bring the U.S. legal response back in line with its traditional legal values while still providing a way to fight terrorism. This note investigates the European legal response to its terrorist attacks-measuring successes and gauging costs where possible-and evaluates …

Trade Treaty Threats And Sub-National Sovereignty: Multilateral Trade Treaties And Their Negligible Impact On State Laws, David I. Spector

UC Law SF International Law Review

Advocates of free trade extol the virtues of trade without borders, while opponents decry its abysmal consequences. While debates about the benefits and detriments of free trade seem never-ending, there has been comparatively little discussion of the actual impact of international trade obligations on sub-national components of federal governments. Although the relationship between America's trade treaties and the policies of state governments has become a more visible issue in international trade, relatively little is known about how these international trade obligations really shape state law-making among the fifty U.S. states. This Note examines how international trade treaties have actually impacted …

Introduction 21st Annual Scholarly Programs: The Future Of Force: Waging War In The 21st Century

UC Law SF International Law Review

This year's 21st Annual Scholarly Programs featured two events that brought leaders in the field together to discuss the legal bases for waging war in the 21st Century. The first event, the Scholars Forum, featured Professor Thomas M. Franck, who discussed his paper, Preemption, Prevention and Anticipatory Self-Defense: New Law Regarding Recourse to Force? Professor Diane Marie Amann, Professor David D. Caron, Professor Joel R. Paul and Judge Abraham D. Sofaer responded to Professor Franck's paper and offered their own perspectives. Professor Naomi Roht-Arriaza served as the mediator. The second event, the Rudolph B. Schlesinger Memorial Lecture, featured Michael J. …

The Eu Regulation On Insolvency Proceedings: The Need For A Modified Universal Approach, Jully Pae

UC Law SF International Law Review

The growth of cross-border insolvencies has increased with the growth of international business activity. As courts of multiple jurisdictions are implicated, conflict-of-law problems surface. This note examines different theories which purport to overcome these conflict-of-law problems. This note also proposes that a modified universalism theory, as opposed to the dominant universalism theory, is the best solution to the problems which arise from the cross-border insolvencies.

The Problem Of Enforcing Environmental Norms In The Wto And What To Do About It, Sanford E. Gaines

UC Law SF International Law Review

National and international focus and efforts on trade has led to the comparative disadvantage of international environmental policy relative to trade policy in what is known as the trade-environment problematique. The tension between trade and the environment does not exist because trade norms trump environmental norms, but because of the tension between environmental protection and the intensification of economic activity to provide for the world's growing population. This article argues that rather than creating a new international institution to address the trade-environment problematique, international environmental policy should instead be more fully and deeply integrated into economic policy, which can only …

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

UC Law SF International Law Review

In the space of one generation, through both national and international agreements, nations have established norms and a framework for environmental stewardship of the Earth. One sign of the acceptance and maturation of environmental norms is that nations now worry about how to enforce environmental law and how to achieve compliance. Enforcement of environmental laws is essential to attaining the international objective of sustainable development. To be effective, this enforcement must be routine, reasonably resourced and predictable-an arduous challenge. In order to build a sustainable global community, the nations of the world must renew their commitment to the United Nations, …

A Comparative Look At Anti-Stalking Legislation In The United States And Japan, Nga B. Tran

UC Law SF International Law Review

Even with anti-stalking laws in place in the United States, the persistence of stalking crimes is alarming. Providing victims with maximum protection under a legal system requires drafting constitutionally valid statutes, mandatory police education and training on the subject and prevention and early intervention. In addition, comparing the anti-stalking laws in the United States with the newly implemented anti-stalking laws in Japan, which have been very effective in curbing the activities of stalkers, leads to the conclusion that anti-stalking laws in the U.S. should incorporate many of Japan's victim-oriented measures.

The Origin And Emergence Of International Environmental Norms, Armin Rosencranz

UC Law SF International Law Review

In this symposium essay, I intend to explore the origins and influence of international environmental norms. I believe I can identify twenty norms as either prevailing or rising norms of global environmental law: sic utere tuo ut alienum non laedas (use your property so that the property of others is not damaged); subsidiarity; cultural diversity; the environment is a human right; the common heritage of humankind; environmental impact assessment; intergenerational equity; state sovereignty; the polluter pays principle; active role of civil society and NGOs; notification and consultation; equal access to justice; monitoring, reporting and disclosure; sustainable development; the precautionary principle; …

International Environmental Justice: Rights And Remedies, Kenneth F. Mccallion

UC Law SF International Law Review

Although environmental rights are not explicitly enumerated in the Universal Declaration of Human Rights, it has become generally recognized that environmental rights are closely linked with the right to life, which is the most fundamental jus cogens norm, without which no other rights can be exercised. As the environmental crisis has accelerated in the nineteenth and twentieth centuries, constitutional drafters around the globe have explicitly enshrined in their constitutions some form of obligation to protect the environment or other environmental rights. Consequently, states have come to realize the existence of a duty to prevent grave environmental destruction, particularly in the …

Remedying Past Abuses Of Governmental Power - Legal Accountability For The 1968 Events In Poland, Susanne Starecki

UC Law SF International Law Review

Since the 1968 events in Poland, the Polish government has systematically subjected Polish Jews to degrading treatment, denied them their rights to freedom of religion, denied them their right to the enjoyment of property and engaged in numerous acts of discrimination. The issue of justice and reparations for these Polish Jews must be addressed. This note examines the means Polish Jews may explore to remedy Polish governmental abuses. Due to the absence of applicable domestic laws and reparations by Poland, Polish Jews need to utilize international tribunals, particularly the European Court of Human Rights.

Out Of The Crooked Timber Of Humanity: The Conflict Between South Africa's Truth And Reconciliation Commission And International Human Rights Norms Regarding Effective Remedies, Sherrie L. Russell-Brown

UC Law SF International Law Review

Judicial review in the United States is a strong and effective remedy. However, it is a limited remedy because the courts act only when asked and because courts have developed an entire jurisprudence of reasons why they cannot hear cases. For past violations there is no constitutional remedy; and there is no constitutional obligation upon Congress, or upon the States, to provide remedies, or to compensate victims for violations of their rights.

In contrast to the U.S. Constitution, various comprehensive human rights and regional human rights treaties explicitly include, in some form, the right to a remedy for violations of …

Declaring War On The Japanese Constitution: Japan's Right To Military Sovereignty And The United States' Right To Military Presence In Japan, Derek Van Hoften

UC Law SF International Law Review

An analysis of the Japanese military and its relationship with the United States military necessarily involves an analysis of historical events, legal issues and international law. Specifically, it involves a detailed examination of the United States' post-war occupation of Japan and the new U.S.-drafted Japanese constitution that followed; of the intricacies of that constitution, including its renunciation of the right to belligerency or to maintenance of armed forces; of internal and external pressures to amend or reinterpret that constitution; of practical realities such as diplomacy, self defense and economic growth; of the legitimacy of a document called a constitution, for …