International Law Commons^™

Bibliography On Secession And International Law, Mary D. Hood

Faculty Publications

The purpose of this bibliography is to bring together a variety of sources as a resource for the attendees of America's Regional Conference on Secession and International Law, sponsored by the International and Comparative Law Institute of Santa Clara University School of Law in cooperation with the Consortium on International Disputes Resolution (CIDIR). Issues discussed at this conference include:

• Secession in the history of international relations;
• Right of secession in comparative constitutional law;
• Secession in present international law:
• Rules and principles of international law with regard to secession;
• Self-determination and secession;
• Minorities, "peoples" and the right to self-determination at the …

Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Decisionmakers disregard scientific findings regarding environmental conditions, despite recommendations of the 1992 "Earth Summit" in Agenda 21 that science should provide a foundation for sustainable development. Although environmental degradation trends continue to exacerbate, decisionmakers address only selected issues. This Article examines an analytic paradigm for evaluating when decisionmakers are ready to address a problem and describes the catalytic role that scientific information can serve in prompting remedial action. Unless systematic procedures require evaluation of environmental scientific findings in the normal course of decisionmaking, science will continue to be ignored. One hallmark of Environmental Law has been to fashion such procedures, …

The Pinochet Precedent And Universal Jurisdiction, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Antitrust And The Draft Hague Judgments Convention, William S. Dodge

Faculty Scholarship

No abstract provided.

Introduction: Towards Understanding South African Constitutionalism, Penelope Andrews, Stephen Ellmann

Articles & Chapters

No abstract provided.

The International Criminal Court: Complementarity With National Criminal Jurisdiction, Jimmy Gurule

Journal Articles

The 1998 Rome Statute established an International Criminal Court. Is its jurisdiction truly complementary to the national criminal jurisdictions?

Humanitarian Assistance In Non-International Armed Conflict: The Fourth Wave Of Rights, Duties And Remedies, Mary Ellen O'Connell

Journal Articles

The international community is in the midst of a fourth wave of legal development with regard to the rights, duties and remedies associated with humanitarian assistance to victims of non-international armed conflict. This wave is part of a larger development affecting most aspects of international law at the beginning of the 21st century. International actors, in particular, non-governmental organizations (NGOs), have challenged the accepted categories of international law in almost all fields, including international humanitarian law. In international humanitarian law, NGOs are primarily challenging the traditional requirements of neutrality and consent in the distribution of emergency aid to victims of …

Problems And Solutions Regarding Indigenous Peoples Split By International Borders, Richard Osburn

American Indian Law Review

No abstract provided.

Crosby And The "One-Voice" Myth In U.S. Foreign Relations, Sarah H. Cleveland

Faculty Scholarship

In Crosby v. National Foreign Trade Council, the Supreme Court invalidated a Massachusetts government procurement statute that barred state entities from doing business with companies that did business in Burma. The plaintiffs, an organization of private companies with foreign operations, challenged the law on constitutional and statutory preemption grounds, arguing that it improperly conflicted with federal foreign relations authority. The Supreme Court limited its holding to implied statutory preemption, finding that the Massachusetts provision improperly compromised the President's ability "to speak for the Nation with one voice." Crosby thus joined a long line of decisions in which the Supreme …

A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann

Articles & Chapters

As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... …

Game Theory And Customary International Law: A Response To Professors Goldsmith And Posner, Mark A. Chinen

Faculty Articles

In a pair of recent articles, Professors Jack Goldsmith and Eric Posner have used game theoretic principles to challenge the positivist account of customary international law. Their writings join other early attempts to apply game theory to the international law sources. This article has two purposes. The first is to evaluate game theory's potential for yielding greater insight into customary international law and international law more generally. The second is to respond to the conclusions about customary international law drawn by Professors Goldsmith and Posner. In Part I, Professor Chinen discusses the approach proposed by these two scholars. Traditionally, customary …

International Law, Human Rights Beneficiaries, And South Africa: Some Thoughts On The Utility Of International Human Rights Law, Ronald Slye

Faculty Articles

This article uses the case of South Africa to illustrate four effects of international human rights law on human rights beneficiaries. First, international human rights law acts as a constraint on state action. Second, it is a source of norms that can be incorporated into, and thus interpreted and implemented by, domestic legal institutions. Third, it acts as a direct or indirect constraint on the actions of international governmental and non-governmental organizations. Fourth, it directly empowers individual victims. The Article also uses the South African example to provide suggestions for additional areas of research and advocacy for international human rights …

Awarding Compound Interest In International Arbitration, Natasha Affolder

All Faculty Publications

Few, if any, international arbitrators choose to tackle the equation P[n] = P[0.](1 i/m) in their arbitral awards. In fact, few international arbitral awards explicitly address the issue of whether an award of interest should attract compound, rather than simple, interest. While there is little consensus on approaches to awarding interest generally in international arbitration, the issue of compound interest is especially problematic. This is due to the fact that compound interest is often singled out for prohibition in domestic legal systems, yet it is the commercial norm in calculating interest in modern financial transactions. The practices of financial institutions …

A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo

LLM Theses and Essays

Universally held basic human rights must remain separate from political rights. Such basic human rights are those that are so universal that all societies, systems, nations, and ideology could, and do espouse them. Conversely, political rights are those that are dependent upon compatibility with the system of government in place and arc therefore far less likely to gamer universal support. An effective multilateral enforcement mechanism can only succeed if there are universal agreement and acceptance of the protected rights. Accordingly, at the outset of such a mechanism, only basic human rights may be enforced through trade sanctions. Once such a …

The Impact Of Modernization And Development On Muslim Women In Egypt: A Legal Perspective, Mazahir Muhammed Ata El-Sid

LLM Theses and Essays

This study examines the effectiveness of the modernization theory in Egypt, a developing Muslim society. As in the case of other developing societies, Egypt's modernization is uneven. Therefore, I will examine modernization as it relates to Muslim women in Egypt in as far as they vary in their exposure to the modernizing influences of advanced technology. Egypt has experienced a variety of social, judicial, economic, demographic, and political modifications. These changes have greatly affected Muslim women in Egypt and their family life. Not all of the issues underlying modernization will be addressed in this research. Type of family structure and …

Legalize It? -Osp And Peer-To-Peer Network Liability For Online Music Copyright Infringements In The United States And Germany, Christian Nils Jochen Engelhardt

LLM Theses and Essays

It may be useful to explain why a comparative approach was chosen. It is easy and comfortable to get caught up in one's own legal system and not look abroad. It is often difficult enough to understand and apply one’s own laws accurately and the study of a foreign legal system may seem an effort too great. Yet, this reluctance to look beyond the familiar is fatal to legal development and improvement since entirely new ideas are rare in the field of law and the main source of change and new approaches is borrowing from another legal system. If one …

International Water Law For The 21st Century: The Contribution Of The U.N. Convention, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

In May, 1997, the United Nations General Assembly adopted the Convention on the Law of the Non- Navigational Uses of International Watercourses, a treaty that largely codifies the general principles of international water law. While not entirely free from controversy, the Convention has already been influential and will doubtless continue to be well into the 21st century. This paper provides an overview of the Convention, comments on some of its salient provisions, and considers its future influence.

Flying The Overly Friendly Skies: Expanding The Definition Of An Accident Under The Warsaw Convention To Include Co-Passenger Sexual Assaults, Davis L. Wright

Villanova Law Review (1956 - )

No abstract provided.

Treating Tax Issues Through Trade Regimes (Symposium: International Tax Policy In The New Millennium), Reuven S. Avi-Yonah

Articles

Professor Paul R. McDaniel has performed an extremely valuable service in clarifying the relationship between trade and tax law. In particular, he has done so by pointing out that, to a large extent, the two spheres do not overlap, much less clash in their objectives. This makes sense because, fundamentally, the goal of trade law is to facilitate trade, while the goal of tax law is to raise revenue. Thus, for example, an ideal tariff under trade law is set at zero, but an ideal tax under tax law is set at some positive rate. It therefore should not be …

Framing Refugee Protection In The New World Disorder, James C. Hathaway, Colin J. Harvey

Articles

A number of jurisdictions have fastened onto a "solution" that appears to reconcile respect for refugee law with the determination of states to rid themselves quickly of potentially violent asylum seekers. Courts in these states have been persuaded that a person who has committed or facilitated acts of violence may lawfully be denied a refugee status hearing under a clause of the Refugee Convention that authorizes the automatic exclusion of persons whom the government reasonably believes are international or extraditable criminals. Refugee law so interpreted is reconcilable with even fairly blunt measures for the exclusion of violent asylum seekers. In …

Women's International Tribunal On Japanese Military Sexual Slavery, Christine M. Chinkin

Articles

From December 8 to 12,2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading high-ranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s.

The immediate background to the tribunal's establishment was a series of events commencing in 1988 when the women's movement in the Republic of Korea began to learn of the research of …

Interpretation Of The Definition Of 'Refugee' Under Art. 1(A)(2) Of The Convention Relating To The Status Of Refugees, With A View To The Elaboration Of A Community Instrument To Guide The Application Of The Refugee Convention Pursuant To Art.63(1)(C) Of The Treaty Of The European Communities, James C. Hathaway

Other Publications

In approaching the task of recommending how to structure a Directive on common minimum standards for the recognition ofrefugee status in the Member States of the European Union, I have struggled to avoid two extremes. On the one hand, my recommendations might simply have reflected a search for the common denominator of relevant practice. The risk of this sort of analysis is, of course, that it clearly promotes a "race to the bottom," in which those States which presently fully implement their international obligations are encouraged to reduce the standard of protection. The alternative extreme would have been to define …

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

This commentary will focus on the participants' proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates.

China’S Cautious Participation In The Un Human Rights Regime, Greg Moore

Human Rights & Human Welfare

A review of China, the United Nations, and Human Rights: The Limits of Compliance, by Ann Kent. Philadelphia: University of Pennsylvania Press, 1999. 328pp.

When most Western students of human rights and/or international relations think of China, unfortunately they are most likely to think not of the greatness and longevity of Chinese civilization, the goodness of Chinese cuisine, or the grandesse of the Chinese landscape. Rather, they are most likely to think of the Tian’anmen Square incident of 1989 and China’s human rights problems. Considering both the interest and the emotion generated in the West over the issue of human …

Now We Know About Pinochet, But Where Do We Go From Here?, Gerald Robert Pace

Human Rights & Human Welfare

A review of Chile Under Pinochet: Recovering the Truth. Philadelphia: University of Pennsylvania Press (Pennsylvania Studies in Human Rights), 1999. 296pp.

General Augusto Pinochet, who served as military and civil leader of Chile from 1973 until 1990, forged perhaps one of the most authoritarian regimes ever to govern in the Western Hemisphere. Spearheading the violent coup d’état that ousted socialist President Salvador Allende, Pinochet not only achieved power, but also created a personalistic dictatorship bolstered by a military run governmental bureaucracy to secure his rule. And indeed, this combination perpetuated Pinochet’s seventeen-year tenure.

Synthesis In Trial Procedures? The Experience Of The International Criminal Tribunals, Mark Findlay

Research Collection Yong Pung How School Of Law

Critical to analysing the recent synthesis of criminal trialprocedures is an understanding of the internationalisation of criminal law andprocedure. As well as the creation of international tribunals to investigateand try crimes of world significance, there is emerging an internationaljurisprudence on criminal law (and procedural hybrids to support and developthis) which require integrated analysis.

Carter, Reagan, And Khomeini: Presidential Transitions And International Law, Nancy Amoury Combs

Faculty Publications

No abstract provided.

W(H)Ither Zschernig?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court's citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less "constitutional" in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of "settled ... implied preemption doctrine," the Court's preemption analysis was anything but ordinary. Indeed, Crosby's version of preemption analysis is subject to the …

Dialogic Federalism: Constitutional Possibilities For Incorporation Of Human Rights Law In The United States, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal …