International Law Commons^™

The European Union V. The North Atlantic Treaty Organization: Estonia's Conflicting Interests As A Party To The International Criminal Court, Barbi Appelquist

UC Law SF International Law Review

The United States has requested that states party to the ICC sign agreements-referred to as Article 98 treatiesexempting U.S. citizens from ICC jurisdiction. The EU has opposed Article 98 treaties on the grounds that they threaten the legitimacy of the ICC. This note evaluates the conflicting political pressure exerted on Estonia to either sign or refrain from signing an Article 98 treaty. Part One summarizes the theory of transplantation and how Estonia's relationships with the EU, NATO and the ICC have affected Estonia's international legal obligations and diplomatic options. Part Two analyzes Estonia's relations with the United States, NATO and …

Enforcing Arms Control Agreements By Military Force: Iraq And The 800-Pound Gorilla, Davis Brown

UC Law SF International Law Review

Despite Iraq's complete disdain for international law, the community of States, acting in accordance with international law, had allowed the Ba'ath regime to remain in power. Iraq therefore enjoyed the benefits of the principles of sovereign equality, non-interference with internal affairs, and, for the most part, non-use of force, without shouldering any of the responsibilities that come with the privilege of recognition as a State. This article begins with a presentation of a new approach to jus ad bellum which takes just war theory to the next level, where force is used as a remedy to a grave injury caused …

Reining In The American Litigator: The New Role Of American Judges, Richard L. Marcus

UC Law SF International Law Review

The American lawyer has long seemed unique in the world-almost a cowboy figure doing justice against the odds. The American judge, on the other hand, has remained a background figure, rarely taking the initiative and serving instead as a passive, impartial umpire in the contest of the lawyers. During the last half-century, however, the latitude accorded the American lawyer has increasingly been reined in by American judges. Although there has been resistance to this trend, it shows no signs of abating. This paper begins with a very general sketch of the role of attorneys in U.S. society and government, and …

Roles Of Judges And Attorneys Under The Non-Sanction Scheme In Japanese Civil Procedure, Koichi Miki

UC Law SF International Law Review

In many jurisdictions, the roles of judges and attorneys in modern civil procedure are becoming multi-faceted and, accordingly, more and more complex. This paper outlines the Japanese situation, focusing on the most recent reform of the Japanese Code of Civil Procedure (the New Code), which occurred in 1996. The reform introduced several innovative devices, none of which contained sanction provisions for implementation or enforcement of their legal effect. The inclination towards non-sanction schemes of this kind reflects the recent trend in reforms. The non-sanction scheme inevitably has an influence on the roles of judges and attorneys. Therefore, it is necessary …

The Multiple Roles Of Judges And Attorneys In Modern Civil Litigation, Astrid Stadler

UC Law SF International Law Review

In contrast to the U.S. adversary system, the great influence of the judge on the conduct of litigation in continental Europe, especially in Germany, is based upon a different understanding of the relationship between the state and its citizens. Based upon historical experience, especially under German law, judges have great constitutionally-based independence. The German Civil Procedure Rules Act had as its goals the reform of the German civil procedure remedy system, the development of a more consumer-friendly, efficient and transparent civil procedure, the encouragement of faster trials and the increase of court-directed settlements. It is still too early for a …

Justice For Some - U.S. Efforts Under Article 98 To Escape The Jurisdiction Of The International Criminal Court, Cosmos Eubany

UC Law SF International Law Review

In April 2002, ten countries ratified the Rome Statute and deposited their instruments with the United Nations. These actions brought the International Criminal Court into force with over sixty ratifications. A month later, the United States declared that it no longer intended to pursue ratification of the treaty and asked to remove its signature from the statute. The United States then launched a campaign to ensure that its nationals would not fall within the jurisdiction of the Court. To ensure that the ICC does not gain jurisdiction over its nationals under any circumstance, the United States is currently seeking "non-surrender" …

The Right Of Abode Cases: Hong Kong's Constitutional Crisis, Anne R. Fokstuen

UC Law SF International Law Review

This note examines the relationship between the Hong Kong Special Administrative Region ("HKSAR") and the People's Republic of China ("PRC") after the handover, and focuses on recent Court of Final Appeals ("CFA") decisions involving the interpretation of Hong Kong's Constitution, the Basic Law, in the "right of abode" context. The author analyzes the most recent decisions in the context of the unacknowledged political balancing act required by the judiciary in post handover Hong Kong and explores the outlook for the "one country, two systems" framework set up at the time of the handover.

Introduction Symposium Of The Japan Association Of The Law Of Civil Procedure: The Role Of The Judge In The Development Of Civil Litigation, Makoto Ito

UC Law SF International Law Review

This year's symposium focused on the role of the judge in development of civil litigation. The role of the judge is surely central to many aspects of civil procedure; as the authority and latitude of the judge expand, the authority and latitude of the lawyers may diminish. There is significant evolution of the role of the judge in Japan, Germany and the United States, but whether this evolution is proceeding at the same speed, or in the same direction, is a matter for discussion and further study.

The Byrd Amendment Battle: American Trade Politics At The Wto, Claire Hervey

UC Law SF International Law Review

The Byrd Amendment has been controversial in both domestic U.S. politics and in international trade law since its enactment. In the international sphere, the controversy surrounds its validity under the WTO, the world's strongest supranational legal regime. In the largest joint dispute resolution action in the history of the WTO, thirty countries challenged the Byrd Amendment as a violation of the ban on governmental subsidies, and won. The U.S. Congress failed to comply with this ruling by its implementation deadline (December 27, 2003) as well as with several other decisions of the WTO, deepening the rift between America and its …

Commanding International Judicial Respect: Reciprocity And The Recognition And Enforcement Of Foreign Judgments, Susan L. Stevens

UC Law SF International Law Review

The recognition and enforcement of foreign judgments have become one of the most prominent areas of interest for many countries in this day of heightened globalization. While the United States has been generous in its recognition and enforcement of foreign judgments, many foreign countries have been unwilling to honor U.S. judgments. U.S. recognition and enforcement of foreign judgments is currently handled on a state-by-state basis, governed by state statute or common law. From a foreign country perspective, this "system" provides no unified procedure indicating under what conditions foreign judgments will be recognized and enforced. The Council of the American Law …

Sovereignty: The State, The Individual, And The International Legal System In The Twenty First Century, Ronald A. Brand

UC Law SF International Law Review

In its origins, the concept of sovereignty dealt with the relationship between the individual and the "sovereign." Its application to the role of the state in international law developed as a secondary matter, bringing with it discussions of relationships between "sovereign" states. However, international law has moved beyond contemporary notions of sovereignty. Concerns about "giving up sovereignty" through participation in multilateral organizations are often misplaced. In this century the most important developments in international law will not be in state-state relationships but rather in the status and rights of the person in international law. The ultimate propriety of new international …

The Brazilian Legal Tradition And Environmental Protection: Friend Or Foe, Janelle E. Kellman

UC Law SF International Law Review

Brazil is home to almost forty-two percent of the area known worldwide as the Amazon basin. Despite its tremendous beauty and ecological richness, the Amazon forest is being destroyed at an unprecedented rate. Legal historians and international scholars have argued that the controversy surrounding the Amazon has stemmed from conflicting economic uses of the forest. Economics, however, is only one piece of the puzzle that accounts for the massive destruction of the rainforest and its surrounding ecosystem. Brazil has a complex set of environmental regulations and statutes. This Article examines how Brazilian legal culture and society have made it virtually …

Governance Of Internet Domain Names Against Cybersquatters In China: A Framework And Legal Perspective, Mo Zhang

UC Law SF International Law Review

Registration of domain names in China has been burgeoning at an accelerated pace in recent years. Due to the lack of an effective link between domain name registration and protection of trademarks, speculators, driven by the potential profit derived from registering famous marks and service marks of others, often abuse the registration and use of domain names. Consequently, trademark infringement stemming from illegal registration and use of domain names has emerged as a serious legal issue. Despite China's efforts to manage and control the registration of domain names through administrative schemes, such remedial measures seem inadequate to solve the thorny …

State Sponsorship And Support Of International Terrorism: Customary Norms Of State Responsibility, Scott M. Malzahn

UC Law SF International Law Review

International terrorists survive and flourish while working underground and out of sight. However, for all its secrecy, terrorism develops within national borders, often in cooperation with public officials or at the acquiescence of political leaders. This note explores the symbiotic relationship between states and private persons who commit crimes of international terrorism, and analyzes the relevant customary norms of international law that may serve as a legal device to hold states accountable in damages for state sponsorship and support of international terrorism. Although legal remedies to acts of terrorism are not always satisfactory, the potential value and positive externalities of …

Extradition And The Conflict In Northern Ireland: The Past, Present And Future Of An Intractable Problem, Margaret I. Branick

UC Law SF International Law Review

British government efforts to extradite members of the Provisional Irish Republican Army (IRA) from the United States have posed challenges to U.S. extradition policy since the 1970s. Under extradition law, "political offenses" traditionally are treated as non-extraditable offenses. Use of the political offense exception to deny extradition of IRA fugitives from the United States prompted the United Kingdom and the United States to sign a Supplementary Treaty in 1985, which eliminated the political offense exception for broad categories of violent acts.

This Note briefly reviews the background of the conflict in Northern Ireland, and discusses extradition law and the political …

Electronic Signatures: A Comparison Of American And European Legislation, Lance C. Ching

UC Law SF International Law Review

The federal Electronic Signatures in Global and National Commerce Act, effective on October 1, 2000, established that a signature, contract, or record related to an interstate or foreign transaction cannot be denied legal effect simply because it is in electronic form, subject to certain exceptions. For much the same purpose, the European Parliament and Council adopted the Directive on a Community Framework for Electronic Signatures in December 1999.

This Note discusses the approaches taken by the United States and the European Union toward establishing the validity of electronic signatures. It provides a brief overview of the history of electronic commerce …

Identifying Terrorists: Privacy Rights In The United States And The United Kingdom, Joyce W. Luk

UC Law SF International Law Review

While the privacy concerns raised by technological advances are widely recognized, recent terrorist attacks and developments in surveillance and information technologies have led to a convergence of technologies that present new challenges to the right to privacy.

This Note gives a general background on video surveillance and facial recognition software and discusses the technology behind, and uses of, closed circuit television in the United States and elsewhere. The Note also explores the meaning of privacy, privacy rights, and their applicability to facial recognition technology, video surveillance, and other emerging surveillance technologies in the United States. It discusses privacy rights and …

Sovereignty, Influence, Realpolitik And The World Trade Organization, Matthew Schaefer

UC Law SF International Law Review

During the U.S. governmental consideration of the Uruguay Round agreements creating the World Trade Organization ("WTO"), claims of "lost sovereignty" were used as a rhetorical device by numerous groups opposed to the WTO. The primary users of the rhetoric were supporters of a more protectionist trade policy, most prominently Pat Buchanan and environmental activists associated with Lori Wallach. However, the ease with which the legalistic response debunked the claim of lost sovereignty and the selective application of sovereignty rhetoric by these groups suggested that their actual concerns did not match the rhetoric. Instead, the underlying concern appears to be over …

Relative Sovereignty Of The Twenty First Century, Ivan Simonovic

UC Law SF International Law Review

The quality of state sovereignty in the contemporary world, both in internal and external relations, has fundamentally changed. Sovereignty of the state in international relations is changing from a system of international relations based on concentration of power in states alone into a system of power-sharing and balance between state and non-state actors. The principle of noninterference in the "internal affairs of a state" is being challenged by the international community's belief in its "responsibility to protect" the world's citizens from persecution, large-scale human rights abuses, and other sufferings. However rational, the process of increasing power-sharing between states, international organizations, …

International Law And The Internet: An Ill-Suited Match - Case Note On Uejf & Licra V. Yahoo! Inc., Caitlin T. Murphy

UC Law SF International Law Review

Internet users, legal scholars, and international observers have been predicting a clash over ideas on the Internet for quite some time. The truly global nature of the medium, the uncertain status of Internet jurisdiction, and the fact that international laws about speech are divergent have created a sense that a collision of ideology and practical legal concerns was imminent. These predictions were realized in May, 2000 when various human rights groups in France filed suit against the American internet giant Yahoo! Inc. over the posting and selling of Nazi paraphernalia on American Web sites that French users can access. This …

Nobody's Perfect: Proximate Cause In American And Jewish Law, Steven F. Friedell

UC Law SF International Law Review

Although it may seem counterintuitive, wrongdoers are not liable for most of the damage they cause. The law leaves most of the burden of torts on the victims because it would be neither just nor practical to hold culpable defendants liable for all the harm they cause. The difficult task for any legal system is to define the criteria that determine the limits of liability and to prescribe the procedures for applying those criteria.

This Article will explore the problem in both the American and Jewish legal systems and suggest ways in which the American system can be reformed. First, …

The Sovereignty Continuum And Conflict Resolution, Dennis Cusack

UC Law SF International Law Review

The history of Tibet's relations with China is itself an interesting study in notions of sovereignty, autonomy and "suzerainty," the label the British gave to their view of Tibet's status at the turn of the last century. Under the 1988 Strasbourg Proposal, the Dalai Lama offered to negotiate a status for Tibet under which Tibet would surrender its right to formal sovereignty, defer to China on matters of foreign relations and defense, but retain control over all domestic matters. This article offers examples and patterns of cases in which conflicts over sovereignty have been successfully resolved through non-violent conflict resolution.

Relative Normativity: Challenging The Sovereignty Norm Through Human Rights Litigation, William J. Aceves

UC Law SF International Law Review

Since 1945, two developments in human rights law have challenged the dominion of the sovereignty norm. First, the international community has recognized the existence of competing human rights norms, some of which now compete with the sovereignty norm for primacy. Second, a diverse group of institutions has applied these norms to challenge the sovereignty norm by imposing civil and criminal liability on government officials when they commit human rights violations. This essay examines how the sovereignty norm has been challenged through human rights litigation. Two recent human rights cases. Filartiga v. Pena-Irala and Regina v. Bow Street Metropolitan Stipendiary Magistrate, …

A Proposal To Use Alternative Dispute Resolution As A Foundation To Build An Independent Global Cyberlaw Jurisdiction Using Business To Consumer Transactions As A Model, Victoria C. Crawford

UC Law SF International Law Review

Alternative Dispute Resolution ("ADR") has traditionally operated on the outskirts of the law as an alternative or supplement to traditional court constructs. ADR is typically described as operating in the shadow of the law and certainly not as the foundation for it. The uniqueness of the internet has the potential to reverse this traditional relationship. This paper suggests that online ADR techniques could be used as a foundation upon which to build an independently existing global cyberlaw jurisdiction for business to consumer transactions.

Sovereignty, Territoriality, And The Rule Of Law, Joan Fitzpatrick

UC Law SF International Law Review

On November 13, 2001, President George W. Bush issued a Military Order in which he claimed power as Commander in Chief to detain indefinitely and to try, by ad hoc military commissions, persons designated by him as international terrorists. This Order represents a stunning claim to absolutist power and a rejection of any meaningful legal constraints on the treatment of the captives. The Order and the "War on Terrorism" on which it is premised challenge the most commonly accepted principles of post-Westphalian sovereignty: exclusive control over territory, noninterference, and equality among states.

The legal premise for the Order is the …

The International Convention On The Elimination Of All Forms Of Discrimination Against Women: A Comparison Of Its Implementation And The Role Of Non-Governmental Organisations In The United Kingdom And Hong Kong, Carole J. Petersen, Harriet Samuels

UC Law SF International Law Review

Although the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") was implemented in Hong Kong a full ten years after its enactment in the United Kingdom, evidence suggests that it is having a more practical impact in Hong Kong than in the United Kingdom largely because Hong Kong women's organizations are making more use of CEDAW in their current lobbying efforts. This article introduces CEDAW and its enforcement mechanisms, and compares its implementation in the two jurisdictions. The authors analyze the extent to which CEDAW is considered in public policy making, the extent to which the …

Corporate Liability: Enforcing Human Rights Through Domestic Litigation, Beth Stephens

UC Law SF International Law Review

No abstract provided.

The International Legal Rights Of Indigenous Peoples Affected By Natural Resource Exploitation: A Brief Case Study, Martin Wagner

UC Law SF International Law Review

No abstract provided.

Multinational Corporate Liability Under The Alien Tort Claims Act: Some Structural Concerns, Michael D. Ramsey

UC Law SF International Law Review

No abstract provided.

Text Of Remarks On Panel: Indigenous Peoples, Environmental Torts And Cultural Genocide, Robert Coulter

UC Law SF International Law Review

No abstract provided.