International Law Commons^™

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

Schools: Lessons From The Agreement, Jerry Tyrrell, Brendan Hartop, Seamus Farrell

Fordham International Law Journal

This article discusses how education will help lead to the success of the Multi-Party Negotiations, which attempt to resolve the conflict in Ireland. Citizenship development can teach values such as tolerance, care, and respect for others as equals. Education can promote movement from the rhetoric to the practice of collaboration and encourage participative democracy. Education can also be a foundation for social harmony.

Women, War, And Words: The Gender Component In The Permanent International Criminal Court's Definition Of Crimes Against Humanity, Brook Sari Moshan

Fordham International Law Journal

This Comment addresses the intersection of gender issues and human rights law as illustrated by the formation of the permanent ICC. Specifically, it argues that the inclusion of gender- motivated crimes in the ICC's definition of crimes against humanity was necessary to emphasize women's wartime experiences and injuries, but that such inclusion is not enough to ensure gender justice as the ICC begins to prosecute war crimes and crimes against humanity. Part I of this Comment discusses the concept of gender-based crimes and illustrates these crimes through recent examples of gender-based violence. It also reviews the history of the ICC, …

1948-1998 : The Universal Declaration Of Human Rights And The Statute Of The International Criminal Court, Adriaan Bos

Fordham International Law Journal

I am pleased to comply with the request of the Editorial Board of the Fordham International Law Journal to introduce the readers to Book II of Volume 22, devoted to international human rights. This year we celebrate two important events: the adoption in Rome of the Statute of the International Criminal Court ("Rome Statute"), and the Fiftieth Anniversary of the Universal Declaration of Human Rights ("Universal Declaration"). Both events are very closely linked to one other. The adoption of the Rome Statute can be considered an implementation of part of the Universal Declaration. Many articles of the Rome Statute can …

Defining Crimes Against Humanity In The Rome Statute Of The International Criminal Court, Phylilis Hwang

Fordham International Law Journal

In Part I, this Article surveys the evolution of crimes against humanity. This part reviews interpretations of crimes against humanity by post-World War II tribunals, national courts, and the International Law Commission ("ILC"). Part II examines the formulation of crimes against humanity in the statutes that established the International Criminal Tribunals for the former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR"). It also looks at how the reports issued in connection with the ICTY statute and the case law from the ICTY dealt with crimes against humanity. Part III draws some preliminary conclusions regarding the status of …

Trademark Law And Parallel Imports In A Globalized World--Recent Developments In Europe With Special Regard To The Legal Situation In The United States, Carl Baudenbacher

Fordham International Law Journal

This Article discusses the historic course of recent events insofar as it first describes the Maglite decision of the European Free Trade Association Court. Second, it summarizes the opinion of the Advocate General and the judgment of the Court of Justice of the European Com- munities in the Silhouette case. Part III focuses on the development of the law in the European Union ("EU") and European Economic Area ("EEA") Member States, as well as in the EU and in the EEA before Silhouette and Maglite. In Part IV, comments are made with regard to the reasons given in Maglite …

Transparency- Not Just A Vogue Word, Bo Vesterdorf

Fordham International Law Journal

I therefore intend to focus my attention on transparency issues as they relate to the decision-making process and leave out those issues relating to the legislative process. Moreover, I shall restrict myself to examining a few selected issues concerning the topic and shall base my examination principally on some of the more recent judgments of the Court of First Instance and the Court of Justice of the European Communities (together, “Community Courts”).

Regulation Of The Turkish Straits: Unclos As An Alternative To The Treaty Of Montreux And The 1994 Maritime Traffic Regulations For The Turkish Straits And Marmara Region, Serge V. Pavlyuk

Fordham International Law Journal

This Note discusses the need for a modern international legal regime that would address navigational and environmental safety in the Turkish Straits in a manner consistent with customary international law of the transit passage through the straits used for international navigation. Part I provides an overview of the recent history of the Turkish Straits and the legal regimes regulating navigation in the Turkish Straits and other straits used for international navigation. Part II explores the positions and arguments of the parties involved in the dispute over the legality of the 1994 Turkish Regulations. Part III proposes that the circumstances surrounding …

Toward Peace In Northern Ireland, George J. Mitchell

Fordham International Law Journal

That is one side of the coin of liberty. When we adjourned for the Christmas holiday the prospects were bleak. It was in mid-February 1998, on the flight from Dublin back to the United States, that I began to devise a plan to establish an early deadline for an end to the talks. He stayed up all night at the White House, telephoning several of the delegates at critical times in the final hours of negotiation. Most importantly for its survival, the agreement was overwhelmingly endorsed by the people of Ireland, North and South, in a free and democratic election. …

To Cherish A Just And Lasting Peace, Gerry Adams

Fordham International Law Journal

In the opening line of the diary that he kept during the first three weeks of his hunger strike, republican prisoner Bobby Sands, who died after fifty-five days on strike, wrote: "I am standing on the threshold of another trembling world." This system has created a unionist one party state that has rejected basic principles of democracy, justice, and equality. Throughout the development of our peace strategy and the talks process, republicans pursued the peace process in the context of our republican analysis of the situation and with a solid strategy to meet all of the difficulties head on. In …

Why Decommissioning Is A Real Issue, John Bruton

Fordham International Law Journal

The Nationalist minority in Northern Ireland is protected by the Agreement. One of the principles to which both Sinn Fein and the Progressive Unionist Party agreed in 1997 was that they gave their "total and absolute commitment to the total disarmament of all paramilitary organisations." It is important for a U.S. audience to understand that those of us in Ireland who are concerned to maintain certain basic norms of representative democracy have good reasons to insist on the principle of the decommissioning of paramilitary weapons, regardless of who the weapons are held by, or for what motive. But if one …

Beyond The "Band-Aid" Approach: An Alliance Party Perspective Upon The Belfast Agreement, Stephen Farry, Sean Neeson

Fordham International Law Journal

In the absence of a ready-made solution that could be adopted by the people of Northern Ireland, or a magical formula from the British and Irish Governments, the only alternative lay in locally-mandated political parties negotiating a political agreement. This alternative in turn entailed a common recognition that the zero-sum politics of "winner takes all" ultimately leaves everyone a loser. An accommodation, while requiring each party to sacrifice some of its aspirations, stood to benefit Northern Ireland society as a whole.

Peace Agreement - Or Last Piece In A Sellout Agreement?, Ian Paisley

Fordham International Law Journal

Indeed, it is the distress caused by the content of the Agreement that has provoked such widespread alarm and division within Unionism. The proposals contained in the Agreement are not remarkably new in content, but they now have the endorsement of those who were previously opposed to such mechanisms that will fundamentally undermine the status of Northern Ireland within the Union and impose a system of government so alien that it is far removed from any known concept of democracy and fairness. According to the author's copy of the Mitchell draft, the UUP lost out on the number of seats …

The Northern Ireland Human Rights Commission, Stephen Livingstone

Fordham International Law Journal

The extent of these powers [...powers to scrutinize proposed legislation before the Northern Ireland Assembly for its compliance with human rights standards, to assist litigants in bringing human rights complaints before the courts, and to conduct investigations into matters that give rise to human rights concerns...advising the Secretary of State for Northern Ireland as to whether any additional human rights, beyond those to be introduced for the whole of the United Kingdom by the Human Rights Act 1998, should be included in a Bill of Rights specific to Northern Ireland...], and their adequacy to the task that the Commission is …

Prisoners, The Agreement, And The Political Character Of The Northern Ireland Conflict, Kieran Mcevoy

Fordham International Law Journal

This Essay first explores the historical context of prisoner release in Ireland, North and South. Second, the role of prisoners in the process of conflict resolution in the 1990s is examined in the periods before and after the breakdown of the first IRA cease- fire. The provisions within the Good Friday Agreement and subsequent legislation are then analyzed in so far as they relate to prisoner release as an incentive for peace among organizations outside the peace process, decommissioning, the victims of violence, and prisoner reintegration. Finally, this Essay argues that the "prisoner issue" represents a crucial acknowledgement by the …

Constitutionalism And Change: Representation, Governance, And Participation In The New Northern Ireland, John Morison

Fordham International Law Journal

This Essay assesses the achievement of restoring representative government and also considers whether this is enough given the changes that have occurred since last there was devolved government in Northern Ireland. Finally, it examines those aspects of the Agreement that can be developed in line with a view that the constitution should now be seen much less as a structure of rule than a framework for rule within the wider task of democratizing democracy in the new Northern Ireland.

Does The Ec Council Directive No. 95/46/Ec Mandate The Use Of Anonymous Digital Currency?, Julia Alpert Gladstone

Fordham International Law Journal

This Essay focuses on the relationship between the privacy and the retail payment systems on the Internet. Part I of this Essay reviews several payment mechanisms that are in use or that have been introduced for retail commerce on the Internet. The description is not intended to offer a thorough study of the technology, but rather to highlight the data trail that is created under each method. Part II reviews the relevant statutory and self-regulatory mechanisms that have been applied to the Internet to ensure privacy. This leads to a discussion of the European Community's data protection directive, Council Directive …

Documentary Credit Law And Practice In The Global Information Age, Jacqueline D. Lipton

Fordham International Law Journal

Documentary letters of credit have historically been an important and popular method of payment in international trading transactions. In fact, they have been described as the "lifeblood of international commerce." A number of uniform international practices have developed for their use, many of which are codified in international rules such as Uniform Customs and Practice for Documentary Credits. In the global information age, as the nature of international commerce changes, so too must the operation of such payment mechanisms. With the increase in electronic trading, the "documentary" nature of these credits may require some revision. This Essay examines ways in …

Rethinking Mcclesky V. Kemp: How U.S. Ratification Of The International Convention On The Elimination Of All Forms Of Racial Discrimination Provides A Remedy For Claims Of Racial Disparity In Death Penalty Cases, Robin H. Gise

Fordham International Law Journal

This Note addresses U.S. obligations under CERD in the context of racial disparity in the imposition of the death penalty and proposes courses of domestic and international action. Part I examines the historical racial disparity in the imposition of the death penalty in the United States. It discusses the U.S. Supreme Court's decision in McClesky to deny relief to a death row inmate who demonstrated that race influenced whether a death sentence was imposed. Part I also explores the development of CERD and discusses CERD's standard for proving discrimination based on a showing of racially discriminatory effect. Finally, Part I …

Removing Drug Lords And Street Pushers: The Extradition Of Nationals In Colombia And The Dominican Republic, Joshua H. Warmund

Fordham International Law Journal

This Comment explores the interplay between drug trafficking and extradition policy in the U.S.-Latin American-Caribbean region by focusing upon the recent legal shift in Colombia and the Dominican Republic. Part I describes the status of current international extradition law, focusing on modern extradition policy. In particular, this part details the respective extradition treaties of Colombia and the Dominican Republic with the United States. Part I also explores the roles that these two nations assume trafficking drugs into the United States and highlights the corresponding U.S. anti-drug enforcement response. Finally, Part I examines the challenges that drug trafficking and certain anti-drug …

The Amsterdam Treaty: Overview And Institutional Aspects, Jean-Claude Piris, Giorgio Maganza

Fordham International Law Journal

The overall picture presented by the media regarding the two day and two night Amsterdam meeting of the Heads of State and Government in June 1997 was largely negative. The main reason for the negativity was that the Intergovernmental Conference (“IGC”), by failing to agree on Treaty amendments concerning the size of the Commission and the weighting system for qualified majority voting in the Council, supposedly could not produce satisfactory responses as to the need to reform the institutions of the European Union with a view to its next enlargement. Is this picture justified in light of the actual outcome …

Social Policy And Employment Aspects Of The Treaty Of Amsterdam, Patrick Venturini

Fordham International Law Journal

Commenting on employment and social policy gives me the opportunity to start by pointing out how positive the outcome of the Treaty of Amsterdam (or “Treaty”) was in those fields. Indeed, the following four main fields are concerned with substantial extensions or reinforcements of European Community (“EC” or “Community”) competencies and responsibilities following the Amsterdam Summit: employment, social policy, equality between men and women, and fundamental rights and non-discrimination. Last but not least, the strengthening of the co-decision procedure, which is now the principal legislative procedure and requires a joint decision of the Council and the European Parliament, does affect …

External Relations Powers Of The European Community, Jacques H.J. Bourgeois

Fordham International Law Journal

As a result both of the way in which the external relations powers of the European Community (“EC” or “Community”) have been organized by the Treaty establishing the European Community (“EC Treaty”) and of the interpretation by the Court of Justice of the European Communities (“ECJ”), an analysis of the evolution of the external relations powers requires distinguishing between powers relating to foreign trade in the strict sense of the terms, i.e., “common commercial policy” under Article 113 of the EC Treaty, and other external relations powers both express and implied. The subject of this contribution is the external relations …

Is There A Growing International Arbitration Culture?, Whitmore Gray

Book Chapters

The topic given to Prof. Taniguchi and myself for this opening session is a question, "Is there a growing international arbitration culture?" This seems to call for a survey of attitudes and practices peculiar to international arbitration in order to answer the question. The more extended comment of the organizers assumes, as most of us would, however, that such a culture exists, and assigns to us the task of considering what laws and rules are now being developed to implement this "international culture". We also noted that the organizers expressed their conviction that this Conference must have practical and cultural …

Can International Refugee Law Be Made Relevant Again?, James C. Hathaway

Articles

Ironic though it may seem, I believe that the present breakdown in the authority of international refugee law is attributable to its failure explicitly to accommodate the reasonable preoccupations of governments in the countries to which refugees flee. International refugee law is part of a system of state self-regulation. It will therefore be respected only to the extent that receiving states believe that it fairly reconciles humanitarian objectives to their national interests. In contrast, refugee law arbitrarily assigns full legal responsibility for protection to whatever state asylum-seekers are able to reach. It is a peremptory regime. Apart from the right …

Partial Entrenchment Of A Bill Of Rights: The Canadian Model Offers A Viable Solution To The United Kingdom's Bill Of Rights Debate, Vincent P. Pace

Connecticut Journal of International Law

For three decades the United Kingdom has debated whether or not to adopt a bill of fights.' The United Kingdom does not have a constitution that codifies fundamental rights and entrenches these rights from government encroachment. Instead, precedent, customs, conventions, and Acts of Parliament collectively safeguard basic rights.3 Parliament, by simple majority approval, maintains the power to modify or repeal rights guaranteed by any of these sources. The judiciary cannot protect fundamental fights from executive or legislative encroachment because judges in the United Kingdom do not possess the power of judicial 4 review.

This debate has generated considerable controversy because …

The Threat Or Use Of Nuclear Weapons: Discernable Legal Policies Of The Judges Of The International Court Of Justice, Kazuomi Ouchi

Connecticut Journal of International Law

By a letter dated 19 December 1994, the Secretary-General of the United Nations officially communicated to the Registrar of the International Court of Justice the decision taken by the General Assembly of the United Nations to submit the question of the legality of the threat or use of nuclear weapons to the Court for an advisory opinion. The General Assembly noting, inter alia, that Article 96, paragraph 1, of the United Nations Charter empowers the General Assembly to request the Court to give an advisory opinion on any legal question, decided to request the Court to urgently render its advisory …

International Decisions: Well Blowout Control Claim. Un Doc. S/Ac.2/Dec.40, 36 Ilm 1343 (1997). United Nations Compensation Commission, Governing Council, December 17, 1996., Roger P. Alford

Journal Articles

The UN Compensation Commission Governing Council held Iraq liable for oil field damages in Kuwait, including damage caused by Allied bombing because a direct link existed between Iraqi conduct and the damage. The panel held that reasonable expenses can include extraordinary costs because Kuwait took reasonable steps in mitigating its expenses. Salaries to permanent Kuwaiti personnel are not a direct result of Iraq's conduct and cannot be reimbursed.

The 1988 U.N. Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances - A Ten Year Perspective: Is International Cooperation Merely Illusory?, Jimmy Gurulé

Journal Articles

On the ten-year anniversary of the adoption of the 1988 U.N. Drug Convention, this Article analyzes whether signatory- parties have complied with the duties and obligations imposed thereunder, and, in particular, whether the Convention has enhanced international cooperation in narcotics enforcement. Part I of this Article examines the legal obligations and duties imposed under the 1988 U.N. Drug Convention, with special emphasis on the provisions aimed at criminalizing money laundering and at forfeiture of illicit drug proceeds and instrumentalities of narcotics trafficking. Additionally, Part I examines the requirement that parties afford one another the "widest measure of mutual legal assistance …

Law, Venture Capital, And Entrepreneurism In Japan: A Microeconomic Perspective On The Impact Of Law On The Generation And Financing Of Venture Businesses, Eric C. Sibbitt

Connecticut Journal of International Law

Part one of this article attempts to demonstrate through a microeconomic framework how the legal, economic, and cultural forces underlying the Japanese financial system impact the funding of venture businesses in Japan. In a venture finance market, the microeconomic decisions of entrepreneurs and venture investors determine how much capital is ultimately supplied to finance venture businesses. Investors, the suppliers of capital to a venture market, seek to ensure the highest possible payback on investment by maximizing expected returns. Rational entrepreneurs, on the demand side of the market for venture capital, seek the use of investor capital to pursue income-generating opportunities …