International Law Commons^™

A Comparative Introduction To Japanese &(And) United States Wrongful Termination Law, S. Maya Iwanaga

UC Law SF International Law Review

Business relations between the United States and Japan have led to an increasing exchange of employees. However, United States and Japanese citizens who find themselves within the other's employment system are often confused as to what actions are proper in the employment termination setting. This Note presents an overview of Japanese and United States wrongful termination laws. The Note then highlights the similarities and differences between the two countries' approaches and evaluates the evolution of United States employment law towards a Japanese just cause system.

The Impact Of 1992 On United States Export Control Laws, Giovanna M. Cinelli

UC Law SF International Law Review

United States export control laws govern the majority of trade in dual use and defense related items and services between the United States and its major trading partners. The present system requires licenses and reexport authorization for the goods which are traded. For several years, however, United States trading partners have objected to the reach of these laws and United States industry has complained of the competitive disadvantage to which these laws subject many international companies. The onset of the economic integration of Europe, an integration which will result in the world's largest market, has refocused United States congressional and …

Disparity In The Application Of Legal Principles As A Form Of Trade Restraint: Attorney-Client Privilege In The European Community, Dan R. Mastromarco

UC Law SF International Law Review

This Article briefly describes the origin of the Community confidentiality standard, emphasizing the disparate treatment accorded EC and non-EC attorneys. It discusses the nature of the American attorney-client privilege and the rationale for the privilege; it also explores the inherent problems presented in the EC position. The Article concludes by criticizing the decisions in the AM&S and Deere cases for going against the underlying spirit of the EC through the disparate application of legal principles.

The Child Care Tax Credit: An Investment In The Future, Laurie E. Sherwood

UC Law SF International Law Review

The future of the United States lies in one of its most important resources: its children. Child care plays a key role in the development of this resource. However, we face a child care crisis in the United States: both in terms of costs and quality. This Note, in an effort to address the high costs of child care, discusses the Child Care Tax Credit in the United States, a federal program designed to provide tax relief for working parents who incur child care expenses. A discussion of the Canadian tax approach to child care expenses and a comparison of …

Towards A Bill Of Rights For A Democratic South Africa, Albie Sachs

UC Law SF International Law Review

Instead of a bill of rights for post-apartheid South Africa being a means of protecting group privileges under the guise of protecting group rights, it should be an instrument for enlarging the freedom of the oppressed majority, recognizing the cultural diversity of the country, and guaranteeing equal individual rights for all, irrespective of race, color or creed.

Human Rights In Africa: A Cultural, Ideological, And Legal Examination, Ziyad Motala

UC Law SF International Law Review

This Article considers the dominant liberal interpretation of human rights and examines its relevance to African society in terms of its cultural and ideological origins. An argument is made that traditional African society had a conception of human rights which respected important human rights values. However, the rights in traditional African society were not conceptualized in individual terms. This constitutes a fundamental point of departure from the liberal interpretation. Furthermore, human rights practices should be understood, and criticisms against African societies made, in terms of traditional African conceptions. Finally, the African Charter of Human and People's Rights is evaluated in …

When Nations Kill: The Liu Case And The Act Of State Doctrine In Wrongful Death Suits, Fletcher Alford

UC Law SF International Law Review

On October 15, 1984, Henry Liu-a native of Taiwan and an outspoken critic of that government-was murdered outside his home in San Francisco, California. Evidence indicated that certain Taiwanese government officials may have assisted in the murder of Liu. However, a Taiwanese tribunal, investigating the government's role in the murder, determined that the Taiwan government took no part in the plot. Liu's widow subsequently brought suit in the Federal District Court for the Northern District of California, seeking to hold the Taiwanese government liable for the wrongful death of her husband. The judge dismissed her suit on "act of state" …

The Newest Member Of The Nuclear Club: Pakistan's Drive For A Nuclear Weapons Capability And United States Nuclear Nonproliferation Policy, Stephen H. Cassidy

UC Law SF International Law Review

One of the most consistent goals of United States foreign policy since the end of World War II has been to halt the spread among nations of the testing and manufacture of nuclear weapons. This Note provides a theoretical and historical overview of the history of nonproliferation efforts by the United States and the world community. The primary test case for United States policy in the 1980s, and the latest nation on the threshold of possessing nuclear weapons, is Pakistan. The Note focuses on United States attempts to convince Pakistan not to pursue the nuclear option.

Important debates between Congress …

A Proposal For The Development Of A System Of Indigenous Jurisprudence In The Federated States Of Micronesia, Brian Z. Tamanaha

UC Law SF International Law Review

Through a critical examination of the court decisions of the Federated States of Micronesia, this Article will establish that the Micronesians have failed in their efforts to develop a system of indigenous jurisprudence. To understand the reasons for this failure, this Article will survey similar attempts to merge custom into an improved legal system in decolonized areas around the world. Following the conclusion that the existing strategies applied to these situations cannot succeed, this Article will propose a new approach. The proposal rejects the focus on custom as a separate source of law, and instead emphasizes the role and nature …

Palestine And Humanitarian Law: Israeli Practice In The West Bank And Gaza, Carol Bisharat

UC Law SF International Law Review

With the purpose of providing a context for the eighteen month long Palestinian uprising, this Article traces the significant events in the history of the Israeli-Palestinian conflict emphasising the intolerable conditions imposed by twenty-two years of military rule. In the framework of international law, this Article examines first the application of the Fourth Geneva Convention, and secondly Israel's institutionalized violation of the Convention's governing standards as they apply to Palestinians in the occupied territories. The Palestinian right to self determination will be analyzed as it relates to the application of the Fourth Geneva Convention. Finally, Israeli laws and practices will …

Shifting Sands--A Comparison Of English And American Coastal Zone Management Programs, Roberta Lee Jones

UC Law SF International Law Review

The United States and England have each instituted government programs designed to protect coastal resources, but the two programs differ in scope and substance. The United States enacted federal legislation that helped individual coastal states establish and fund coastal programs. By contrast, the Parliament has enacted few meaningful coastal zone management programs and has instead relied on participation from private conservation organizations and local governments to manage and protect coastal resources. This Note compares the coastal zone management programs of England and the United States and proposes improvements for each program.

The Third World Debt Crisis, Peider Konz

UC Law SF International Law Review

The external debt burden has grown to the point that many sovereign borrowers are technically insolvent. This debt/development crisis cannot be resolved by a confrontation of abstract legal principles, which would serve neither the interests of the lenders, nor those of the borrowers. In fact, the causes are both endogenous (unrealistic economic and investment policies, over-borrowing) and exogenous (incautious lending in the days of easy money, subsequent rise of interest rates and restrictive trade policies in the North). To this comes the fact that many debtor countries have not been able to properly manage their debt in harmony with macroeconomic …

A Comparative Analysis Of Debt Equity Swap Programs In Five Major Debtor Countries, Derek Asiedu-Akrofi

UC Law SF International Law Review

Since the onset of the debt crisis, developing countries have resorted to several debt reduction and debt management techniques in order to sustain their debt servicing. One of the most popular of such techniques is debt-equity swaps. Its popularity is illustrated by the fact that several countries have either implemented formal debt-equity swap programs or are contemplating doing so. Despite the popularity of this technique, it is important to note that the features of each program are designed to suit the needs of each debtor country. Accordingly, the modalities for converting foreign debt to equity vary from country to country. …

Tax Implications Of Debt-For-Equity Swaps, Stuart M. Berkson, Bruce A. Cohen

UC Law SF International Law Review

This Article examines the United States income tax implications of debt-for-equity swaps. It focuses on Revenue Ruling 87-124 and describes its application to debt conversions. The Article also considers alternatives available to United States taxpayers in dealing with the potentially adverse consequences of Revenue Ruling 87-124, including arguments which could be raised during the course of an audit or a legal challenge. The Article concludes with a possible manner in which the debt-for-equity swap can be restructured to avoid Revenue Ruling 87- 124.

External Influences On Third World Debt, Neva Seidman Makgetla

UC Law SF International Law Review

At over one billion dollars in the late 1980s, Third World debt precipitated a variety of crises for the actors affected. On the one hand, it jeopardized the profitability of leading transnational banks. On the other, it involved a massive outflow of capital from the Third World, which endured a fall in both consumption and investment. The transnational banks and their home governments responded by demanding that the Third World impose austerity programs, which aimed to reduce consumption in order to enhance investment and maintain debt-service payments. To that end, Western creditors demanded the adoption of free-market policies. The logic …

The Legal Problems Of Indigenization In Nigeria: A Lesson For Developing Countries, Ifeanyi Achebe

UC Law SF International Law Review

In this Article, the author explores, without singling out Nigeria, the various consequences of inattention to uniform enforcement of the Nigerian Enterprises Promotions Decree promulgated in January 1977 (NEPD 1977) to facilitate and enhance economic development. The author notes that economic planners in developing countries have begun to recognize the importance and implications of the legal aspects of indigenization.

In the Nigerian situation, failure to enforce the indigenization decree and related laws encouraged religious discrimination, nepotism, and corruption in high places. It also encouraged fronting, the top enemy of economic progress. If Nigeria is to survive, President Ibrahim Babangida must, …

Intercompany Pricing Of Intangibles Under Section 482: A Comparison With Japanese Tax Policy, Christine Tomomatsu

UC Law SF International Law Review

Tax policy influences the ability of United States businesses to compete internationally. The 1986 Tax Reform Act amended section 482 of the Internal Revenue Code, imposing on United States corporations a new standard for pricing intercompany transfers of intangibles. This new standard deviates from the traditional arm's length standard. It is strict and unpredictable, creating taxpayer uncertainty and discouraging corporations from investing abroad. In contrast to the United States, Japan's tax policy attempts to alleviate uncertainty and double taxation. This Note compares Japanese and United States tax policies to demonstrate the detrimental impact the amendment to section 482 will have …

Jus Cogens: Compelling The Law Of Human Rights, Karen Parker

UC Law SF International Law Review

The international law principle ofjus cogens, or "compelling law," while of potential value in domestic and international human rights litigation, is rarely invoked by name in the United States. This Article proposes that application of jus cogens may enhance judicial enforcement of human rights. The Article defines jus cogens and sets out some of its substantive content. It presents the procedural effects ofjus cogens, with an emphasis on how jus cogens overcomes judicial doctrines that have frustrated plaintiffs in human rights litigation. The Article concludes by showing howjus cogens concepts, under other names, have been a major force in defending …

The Brazilian Debt-Equity Swap Program, Walter Douglas Stuber

UC Law SF International Law Review

With an external debt amounting to more than 110 billion dollars, Brazil is currently one of the most indebted countries. Since the eruption of the external debt crisis in 1982, Brazil has pursued a number of strategies to face this burden, including debt reschedulings and a moratorium on the payment of interests. This Article is focused on one of the strategies resorted to, the debt conversion program, officially enacted in Brazil in 1988. Upon reviewing the historical background of the foreign debt and its conversion, the Article discusses the different aspects of the debt-to-equity swap program, including eligible debt, conversions …

Hague Evidence Convention In The Aftermath Of Societe Nationale Industrielle Aerospatiale, Pascal W. Di Fronzo

UC Law SF International Law Review

The successful negotiation of the Hague Evidence Convention in 1970 represented an historic achievement in furthering international cooperation in transnational discovery. The Evidence Convention established procedures for obtaining evidence located abroad that would be tolerable to the requested state and would produce evidence utilizable in the requesting state. In Socie't Nationale Industrielle AerospatiaIle the United States Supreme Court majority failed to recognize the great accomplishment the Evidence Convention represents toward international judicial cooperation. The Court held that the Evidence Convention is United States law, but that its application in American courts is optional. This Note addresses the inadequacies of the …

The Political Offense Exception And The Extradition Process: The Enhancement Of The Role Of The U.S. Judiciary, Abraham Abramovsky

UC Law SF International Law Review

Using Northern Ireland as a model, this Article argues that some political dissidents have not received fair trials in countries requesting extradition and suggests another method for evaluating extradition requests. This Article first provides background about the conflict in Northern Ireland and the trial procedures for alleged terrorists. Then, the extradition procedure in the United States is examined emphasizing the political offense exception. The Article concludes that the courts are the most appropriate forum for inquiry into the criminal system of the country requesting extradition, especially when the political offense exception is invoked. The courts should affirmatively undertake the duty …

A Cry For Help: A Comparison Of Voluntary, Active Euthanasia Law, Lynn Tracy Nerland

UC Law SF International Law Review

Active euthanasia, commonly referred to as mercy killing, is an international phenomenon. Yet, the legal response to euthanasia cases varies considerably. The United States and other common- law jurisdictions have no statutes dealing with active euthanasia. They rely instead on the discretion of the prosecutor, judge, and jury to determine justice. This approach produces inconsistent outcomes. Some individuals involved in active euthanasia never come to trial, and others are convicted of murder. This Note explores the judicial and statutory responses to euthanasia in a variety of countries, including the United States, West Germany, Japan, and the Netherlands. Using this comparison, …

The Plo Case: Terrorism, Statutory Interpretation, And Conflicting Obligations Under Domestic And Public International Law, Richard Cummings

UC Law SF International Law Review

This Article considers, in the broadest sense, the role of the federal courts in determining Congressional intent to violate U.S. treaty obligations under international law by enacting statutes in contravention of such treaties. The Article also analyzes the propriety and significance of the International Court of Justice advisory opinion concerning the international obligations of a member state under a piece of domestic legislation before that country's interpretation of the legislation. Specifically, it examines the decision in the PLO Mission case which found that Congress did not intend in the Anti-Terrorism Act to shut the PLO Mission to the United Nations …

Traditional Vietnamese Law--The Le Code--And Modern United States Law: A Comparative Analysis, Lan Quoc Nguyen

UC Law SF International Law Review

In the fifteenth century the Vietnamese developed a comprehensive legal treatise, known as the Le Code, which included a number of advanced legal concepts. Many of those concepts, for example spousal immunity, the prohibition against ex post facto laws, and the rights of the accused to release on bail, a speedy public trial, and confrontation of witnesses, are similar to those found in modem United States law. This Note explores the amazing similarities between two legal systems that are foreign in time and culture from each other. By comparing sections of the Le Code with United States law, this Note …

Treaties And Nationalization: The People's Republic Of China Experience, Jay S. Laifman

UC Law SF International Law Review

American investors have invested over ten billion dollars in the People's Republic of China. Further investment, however, has been slowed by fears that the Chinese Government could nationalize American assets in China. These fears are based on past occurrences when political instability or international disagreements have led to nationalization of foreign assets by the Chinese. This Note examines the likelihood that the People's Republic of China would nationalize foreign assets in the future and proposes treaty terms that would protect American investors without offending Chinese sensibilities. The author suggests that future United States-China trade treaties should contain more explicit language …

Tax Planning For Japanese Investment In The United States, Alan S. Woodberry, Neal W. Zimmerman

UC Law SF International Law Review

This Article presents a discussion of various structural tax issues that a Japanese company should consider when acquiring or starting a business in the United States. Its purpose is to offer tax planning ideas which will allow Japanese investors to minimize United States and Japanese taxes without unduly altering nontax considerations. The Article begins by examining the tax implications of operating through a United States subsidiary versus a branch. It then discusses the purchase of a United States business, focusing on the pros and cons of both stock and asset acquisitions. In conclusion, it considers the following areas: structuring the …

The South African Judicial Order And The Future: A Comparative Analysis Of The South African Judicial System And Judicial Transitions In Zimbabwe, Mozambique, And Nicaragua, Heinz J. Klug

UC Law SF International Law Review

South African courts function as an integral part of the apartheid system, enforcing apartheid legislation on the one hand while suppressing resistance by the black majority on the other. First, this Note analyzes the existing judicial order in South Africa focusing on its development in the context of the apartheid system. Second, this Note compares the experiences of judicial transformation following political revolutions in Zimbabwe, Mozambique, and Nicaragua.. The comparison serves to identify how different factors, including varying forms of political transformation and social resources available to a new government, produce constraints and stimuli to judicial transformation. Finally, this Note …

The Paradox Of A Revolutionary Constitution: A Reading Of The Nicaraguan Constitution, Christopher P. Barton

UC Law SF International Law Review

Nicaragua has recently adopted its first constitution since the 1979 Sandinista Revolution. The Constitution tries to institutionalize and legitimate the power of the FSLN and the Revolution itself within the framework of a basically westernstyle constitution. This Article examines the text of the Nicaraguan Constitution to explore the political philosophy underlying constitutionalism in Nicaragua, with particular attention to the place of the Party and the Revolution in the Constitution. The Article considers tensions in the Constitutional text between legitimating the power of the FSLN and creating institutions that limit that same power. Finally, the Article considers the idea, stated in …

Countertrade, The Gatt, And The Theory Of The Second Best, William D. Zeller

UC Law SF International Law Review

Countertrade, which refers to international barter and barterlike transactions, has grown rapidly in recent years, becoming a permanent part of the world economy. This growth has occurred despite criticisms that countertrade is inefficient and creates distortions that could undermine the multilateral trade system. This Article defends countertrade against such arguments and asserts that countertrade actually enhances international trade. After initially reviewing the different types of countertrade, the author argues that countertrade is an appropriate response to the disequilibrium of a "second-best" world, because its trade-creating effects outweigh its trade-diverting effects. The author also asserts that countertrade is not inconsistent with …

The 1962 Cuban Missile Agreement: Status And Prospects Upon Its Second Quarter-Century, George Steven Swan

UC Law SF International Law Review

This Article reviews the 1962 Soviet-American-Cuban Missile Agreement in the perspective of American Constitutional law, particularly in light of presidential authority. It notes the high degree of respect afforded to presidential diplomatic and military moves in times of crisis by the Supreme Court. It recounts the broad extent of presidential foreign policy making authority and it observes difficulties confronting parties hoping to challenge the exercise of such authority in court. Such challenges to be surmounted by prospective plaintiffs would be the standing problem and the political question problem, respectively. The discussion also apprehends that the 1962 undertaking has been determined …