International Law Commons^™

Volume 36 Issue 2 (2004), Cwru Journal Of International Law

Case Western Reserve Journal of International Law

No abstract provided.

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

The Iucn Academy Of Environmental Law: Seeking Legal Underpinnings For Sustainable Development, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

An article describing a “work in progress” can provide only a sketch of the initial plans for the new IUCN Academy of Environmental Law. As the Academy establishes its administrative secretariat, builds its research program, and fashions its collaborative teaching undertakings, the details of this further work will become clear. Their analysis must await the events. Nonetheless, the precedents to date portend a promising future, as illustrated by the launch in Shanghai, and the Academy's initial research into the environmental sustainability of contemporary energy law.

Current Issues Of E.U. Competition Law: The New Competition Enforcement Regime, The Symposium On European Competition Law , Philip Lowe

Northwestern Journal of International Law & Business

On May 1, 2004, two major reforms of the EC competition enforcement regime are expected to enter into force: the modernization of antitrust enforcement, based on Regulation 1/2003,1 and the review of the European merger control system. In this contribution, I will outline the main principles underlying these reforms. In Part I, I will focus on the instruments the Commission intends to adopt early in 2004 in order to guarantee the efficient functioning of Regulation 1/2003, the so-called modernization package. Subsequently, in Part II, I will present the guiding principles of the future merger control in Europe, as they result …

E.U. Competition And Private Actions For Damages, The Symposium On European Competition Law , Georg Berrisch, Eve Jordan, Rocio Salvador Roldan

Northwestern Journal of International Law & Business

There are numerous reasons why private enforcement of E.U. competition law remains underdeveloped in Europe. The main reason is perhaps that it is not regulated by E.U. law but by Member State law. This in itself creates legal uncertainty. A system that creates optimal conditions for individuals to challenge infringements of competition rules before national courts ensures a high level of compliance. It is therefore no surprise that the European Commission ("Commission") is keen to see the general use of private enforcement, and in particular of actions for damages, in Europe increase. This paper focuses on one particular aspect of …

Last Of Its Kind: The Review Of The Technology Transfer Block Exemption Regulation, The Symposium On European Competition Law , Fiona Carlin, Stephanie Pautke

Northwestern Journal of International Law & Business

On October 1, 2003, the Commission published a formal proposal for a new technology transfer block exemption ("Draft TTBE") together with detailed draft guidelines ("Draft Guidelines")5 which explain how the new regulation will be interpreted and how Article 81 will be applied to agreements that fall outside the revised regulation's safe harbor. These proposals unleashed a barrage of criticism from industry and seem likely to result in some amendments to the proposed texts before their adoption in March or April 2004. The new package is due to enter into force on May 1, 2004. This article discusses the Commission's proposals …

Combinations, Concerted Practices And Cartels: Adopting The Concept Of Conspiracy In European Community Competition Law Symposium On European Competition Law , Julian M. Joshua, Sarah Jordan

Northwestern Journal of International Law & Business

This article charts the progress of, and the vicissitudes faced by, the incorporation into the European Community legal order of the peculiarly common law concept of conspiracy as the vehicle not only for analytical purposes, by characterizing full-blown cartels as "agreements" in the sense of Article 81 of the EC Treaty, but also to resolve the multiplicity of evidential issues presented by complex, pernicious and secretive behavior. The article also shows how the uncovering of deliberate and secretive business delinquency, practiced at the highest levels in some of Europe's most respected corporations and summed up by the negative connotations of …

Role Of Judicial Review In Merger Control, The Symposium On European Competition Law , Mark Clough

Northwestern Journal of International Law & Business

This article explains the role of judicial review in European Community ("EC") Merger Control ("ECMR") by reference to the Airtours case and three other important recent judgments of the European Court of First Instance ("CFI") (Schneider, Tetra Laval and Lagardére), all decided in 2002. Article 230 of the EC Treaty, which governs actions for annulment of acts adopted by the EC Institutions "on the grounds of lack of competence, infringement of an essential procedural requirement, infringement of this [EC] Treaty or of any rule of law relating to its application, or misuse of powers," is considered only in the context …

A Road Map For Corporate Governance In East Asia, Chee Keong Low

Northwestern Journal of International Law & Business

Much has transpired since the inadequacies of corporate governance practices in East Asia were glaringly exposed by the Asian financial crisis. The crisis brought to the foreground numerous deficiencies, which had common roots in excessive over-leverage as well as the lack of transparency, disclosure and accountability. These issues have been explicitly recognized with the release of the White Paper on Corporate Governance in Asia by the Asian Roundtable on Corporate Governance in June 2003.

By responding in part to the White Paper, this article sets out a "roadmap" whose ultimate objective is the enhancement of the practice of corporate governance …

Is There A Basis For The Argument That The Detainees At Guantanamo Bay Are Entitled To Constitutional Protections?, Mark Pustay

War Crimes Memoranda

No abstract provided.

The Icc Has Jurisdiction Where War Crimes, Crimes Against Humanity Or Genocide Are Committed Within The Territory Of A State Party. Can It Also Prosecute Those Who Plan Or Order Such Crimes, If They Do So Outside The Territory Of A State Party And If They Are Not Nationals Of A State Party?, Christa A. Grywalsky

War Crimes Memoranda

No abstract provided.

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 …

Targeting The Foreign Born By Race And Nationality: Counterproductive In The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

Times of emergency may justify certain restrictions on liberties, but the nature of the terrorist challenge calls for a much more measured and nuanced response. Al Qaeda is said to have cells operating in as many as sixty countries. Furthermore, Al Qaeda is best described as a decentralized network of extremist Islamic groups and individuals rather than a unified military organization. To reduce or eliminate the threat they pose requires the cooperation of the governments, police officers, and individual citizens in the countries where Al Qaeda linked individuals and groups operate. Such help is necessary to obtain intelligence, arrest, capture, …

Beyond State Sovereignty: The Protection Of Cultural Heritage As A Shared Interest Of Humanity, Francesco Francioni

Michigan Journal of International Law

In this paper the author will try to explore the topic from a different perspective: i.e. the emergence of cultural heritage as part of the shared interest of humanity, with the consequent need for international law to safeguard it in its material and living manifestations, including the cultural communities that create, perform and maintain it. Culture in itself is not extraneous to the formation of the modern nation State. Especially in the history of nineteenth century Europe, culture as language, religion, literary and artistic traditions provided the cement and the legitimizing element to support the claim to independent statehood.

Development Finance: Beyond Budgetary "Official Development Assistance", Anthony Clunies-Ross

Michigan Journal of International Law

Budgetary appropriations by rich-country governments constitute the standard method of providing external funds for welfare and growth in developing countries. This source seems likely, however, to prove inadequate to meet the estimated external finance needed to contribute to the achievement of the Millennium Development Goals.

Armed Conflict, Health And Human Rights, Alex Deraney, Hafsteinn Hafsteinsson

Human Rights & Human Welfare

This section highlights resources with information on health concerns that arise from armed conflict. It examines human rights violations as derived from health issues and the humanitarian efforts to alleviate them. The vast majority of available literature approaches conflict-related healthcare shortfalls in terms of intervention. Literature dealing with armed conflict and health as it applies to human rights is much harder to come by, which indicates the need for additional emphasis in this area.

Agora: The United States Constitution And International Law Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman

Articles

No abstract provided.

Contractual Stipulation For Judicial Review And Discovery In United States-Japan Arbitration Contracts, Norman T. Braslow

Seattle University Law Review

This Article discusses in detail how the arbitration process in both the United States and Japan can very often result in injustice to both parties. Part II describes how limitations on discovery can cause vital information necessary to either prosecute or defend a claim to never appear before the arbitrator. The article then discusses the possibility of including provisions that might ameliorate this problem. Next, this Part examines specific examples of situations where the arbitrators can ignore the civil rules of evidence and admit evidence that would be inadmissible in a court of law. Finally, this Part concludes with a …

International Tax Law As International Law, Reuven S. Avi-Yonah

Articles

Is international tax law part of international law? To an international lawyer, the question posed probably seems ridiculous. Of course international tax law is part of international law, just like tax treaties are treaties. But to an international tax lawyer, the question probably seems less obvious, because most international tax lawyers do not think of themselves primarily as international lawyers (public or private), but rather as tax lawyers who happen to deal with crossborder transactions. And indeed, once one delves into the details, it becomes clear that in some ways international tax law is different from "regular" international law. For …

Sovereign Debt Reform And The Best Interest Of Creditors, William W. Bratton, G. Mitu Gulati

Faculty Scholarship

In April 2002 the International Monetary Fund introduced a sovereign bankruptcy proposal only to be rebuffed by the United States Treasury. Where the IMF wanted a mandatory bankruptcy regime, the Treasury wanted to solve distress problems with contractual devices. Sovereign bondholders and sovereign issuers themselves flatly rejected both proposals, even though they were nominally the beneficiaries of both proponents. This Article addresses and explains this bondholder reaction. In so doing, it takes a highly skeptical view of the IMF's proposal even as it shows that the incentive structure surrounding sovereign lending renders untenable the Treasury's contractarian proposal. The Article's analysis …