International Law Commons^™

The Caspian Dispute: Is A Doctrinal Analysis Too Late Or Can We Turn Back The Hands Of Time, Houman Afshar

NYLS Law Review

No abstract provided.

The Relative Costs Of Incorporating Trade Usage Into Domestic Versus International Sales Contracts: Comments On Clayton Gillette, Institutional Design And International Usages Under The Cisg, Avery W. Katz

Faculty Scholarship

Clayton Gillette's paper on the use of trade usage in reported disputes arising under the United Nations Convention on Contracts for the International Sale of Goods ("CISG") presents a challenge to recent scholarly critiques of modern contractual interpretation. As Gillette explains, much recent writing by economically influenced US scholars in contracts and commercial law has argued in favor of more formalistic methods of interpretation, and against the overwhelming trend of the last half of the twentieth century: a trend toward a more contextual interpretative approach that takes into account a variety of evidence, including the business purpose of the transaction, …

Self-Enforcing International Agreements And The Limits Of Coercion, Robert E. Scott, Paul B. Stephan

Faculty Scholarship

International law provides an ideal context for studying the effects of freedom from coercion on cooperative behavior. To be sure, almost all academic discussions on the subject begin by asking whether international law constitutes "law." But the category of all "international law" is too big and heterogeneous to permit useful analysis. Whether to regard, say, the rules governing the conduct of war or international humanitarian law as "law" presents radically different issues than analyzing the legal character of the Treaty of Rome (the constitutive instrument of the European Community), or the Warsaw Convention (the instrument governing contracts for the carriage …

Homeless For Generations: Land Rights For The Chocoe Indians From Mogue, Panama, David E. Cahn

Fordham International Law Journal

Vaporiso knew that the lack of land ownership in his tribe was a great part of the Chocoes' suffering, and he felt that violence was the only way to rectify the problem. Agenda 21 requires member State governments to strengthen national dispute-resolution arrangements in relation to the settlement of land and resource-management concerns. Convention No. 169, which became legally binding on member States in 1991, provides indigenous people with the right to decide how they wish to develop the lands they occupy and use, and set their own priorities for those lands. Convention No. 169 also provides protection from people …

War, Violence, Human Rights, And The Overlap Between National And International Law: Four Cases Before The South African Constitutional Court, Albie Sachs

Fordham International Law Journal

Both violence and international norms on human rights have become globalized. Formerly rigid systems of sovereignty become porous as the enemies and the friends of the rule of law show equal and opposite disregard for State boundaries. Judges in national courts are obliged to put aside their usual textbooks and cases, and open their eyes to legal scholars and commentators like Brownlie and Cassese. Four cases in the ten-year history of South Africa's Constitutional Court have exemplified these points. In each the Court was under pressure because of time--in three because events were unfolding so rapidly, and in one because …

Introduction & Dedication, Gil Loescher

Fordham International Law Journal

This issue is dedicated to Arthur, and the Articles that appear within reflect his broad interests and concerns regarding human rights, refugees, and international law. During his last year at the Council on Foreign Relations, Arthur turned his attention to the Palestinian refugee issue and wrote an Essay on practical solutions to the Palestinian refugee question. That Essay appears within these pages. Arthur reviews the past experience with durable solutions--repatriation, resettlement, and local integration--for other protracted refugee situations as well as lessons from past compensation arrangements and their applicability to the Palestinian situation. He concludes by arguing that Palestinian refugees …

One-China Policy And Taiwan, Y. Frank Chiang

Fordham International Law Journal

In April 2003, the severe acute respiratory syndrome ("SARS") disease spread to the island of Taiwan. These statements, made by the general who assigned the R.O.C. government to assume the task of the post-surrender administration of Formosa, and those of the high governmental officials of the leading Allied Powers not only demonstrate that the R.O.C. government has not acquired title to the island of Taiwan by occupation for the State of China, but also attest to the existence of a rule in international law that if title to a territory of the defeated State is to be changed after a …

Citizens Cannot Stand For It Anymore: How The United States' Environmental Actions In Afghanistan And Iraq Go Unchecked By Individuals And Non-Governmental Organizations, Wynne P. Kelly

Fordham International Law Journal

As the U.S. government's reach and responsibilities expand, it remains unclear exactly what, if any, input the general populations of Afghanistan, Iraq, or the United States have on government actions. The environmental needs of the two States have concerned the world enough that the United Nations Environment Program ("UNEP") has published a detailed post-conflict report on Afghanistan ("Afghanistan PCA") and a "Desk Study" of the environment in Iraq ("Iraq Desk Study"). There are four basic ways that citizens can attempt either to enjoin U.S. government environmental action abroad or compel the government to adhere to established regulations and agreements: (1) …

Introduction, Justice Richard J. Goldstone

Fordham International Law Journal

This special issue of the Fordham International Law Journal contains seven outstanding articles by jurists from seven countries on three continents. The articles have a common thread in highlighting the necessity for respect of human rights and the human dignity that they are designed to protect. They also demonstrate the significant advances made since the end of World War II of international human rights law. In an age of terrorism there is an inevitable tension between measures designed to protect the lives of innocent civilians and their fundamental civil liberties.

The International Criminal Court: A New And Necessary Institution Meriting Continued International Support, Judge Philippe Kirsch

Fordham International Law Journal

This Article highlights some of the key features of the ICC, and concludes by outlining the support it will need in striving to create a world in which devastating actions are properly addressed and punished. Part I of this Note describes the history of the ICC. Part II discusses the crimes within the Court's jurisdiction. Part III further discusses jurisdiction. Part IV reviews the procedure of the court. Part V concerns the current status of the Court.

The Garden, James Bacchus

Fordham International Law Journal

An essay about the importance of human rights in American foreign policy, framed through the work of Thomas Jefferson. Inspired by the author’s visit to the Jefferson Memorial and the American garden in Washington D.C.

The Efta Court: An Actor In The European Judicial Dialogue, Carl Baudenbacher

Fordham International Law Journal

The vertical dialogue with the national courts of the EEA/EFTA States, in particular the Supreme Courts, has assisted the EFTA Court in developing its case law concerning effect and State liability. Through this jurisprudence, EEA homogeneity in the field of effect and State liability has been maintained. The EEA Main Agreement has been implemented in the domestic legal orders of the EFTA States. EEA secondary law is being implemented in an ongoing process. The same holds true for the rulings of the EFTA Court. There has, to this writer's knowledge, never been a case in which a national court refused …

The Security Council And International Law, Steven R. Ratner

Book Chapters

The chapters in this volume paint a picture of the Security Council as an organ alternatively robust and paralyzed, playing at best a limited role in international peace and security in the UN's first forty-five years and a more significant part ever since, at least until the 2003 Iraq crisis. There can be little question that the Council's members, with the prodding or acquiescence of other key actors in the United Nations, have used that organ in ways barely if at all contemplated by the Big Three (the United States, the United Kingdom, and the Soviet Union) or the others …

Globalization, Law And Development: Introduction And Overview (Globalization, Law And Development Conference), Michael S. Barr, Reuven S. Avi-Yonah

Articles

The current period of globalization (defined loosely as increasing global economic integration), which began with the liberalization of exchange and capital controls and lowering of trade and investment barriers in the 1980s, is not the first time the world got economically smaller. The period from 1870 to the outbreak of World War I in 1914 was by some measures (such as the percentage of GNP in developed countries derived from overseas investment, and labor migration) marked by more extensive globalization than the post-1980 one. This earlier globalization came to a halt with the hostilities of World War I, followed by …

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 …

The End Of Legitimacy, Mary Ellen O'Connell

Journal Articles

IRAQ: ONE YEAR LATER

INTRODUCTORY REMARKS by Mary Ellen O'Connell, 261

THE USE OF FORCE IN IRAQ: ILLEGAL AND ILLEGITIMATE by Anne-Marie Slaughter, 262-63

THE IRAQ WAR AND THE FUTURE OF INTERNATIONAL LAW by Richard Falk, 263-66

THE ROLE OF INTERNATIONAL LAW AND THE UN AFTER IRAQ by Thomas M Franck, 266-69

THE END OF LEGITIMACY by Mary Ellen O'Connell, 269-70

THE PROBLEMS OF LEGITIMACY-SPEAK by James Crawford, 271-73

Iraq: One Year Later, Mary Ellen O'Connell

Journal Articles

Almost exactly one year ago, during her presidential speech at the 2003 Annual Meeting of the American Society of International Law, Anne-Marie Slaughter spoke of the use of force that began in Iraq shortly before that Annual Meeting. She concluded that the war was unlawful but nevertheless potentially legitimate. That conclusion provoked a great debate from the moment her speech ended. Our purpose today is to take up that debate.

Universal Criminal Jurisdiction, Douglass Cassel

Journal Articles

Universal criminal jurisdiction is an important tool in the worldwide struggle to end impunity for serious international crimes.

Universal criminal jurisdiction is the principle of international law that permits any nation to prosecute certain serious international crimes, regardless of where they are committed, by whom or against whom, or any other unique tie to the prosecuting nation. The Recommendation applies whether or not an accused is in custody and does not address the separate topics of universal jurisdiction in civil cases or the immunities of senior government officials before foreign national courts.

Universal criminal jurisdiction developed over time as a …

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our …

Unfunding Terror - Perspectives On Unfunding Terror (Panel One), Jimmy Gurulé

Journal Articles

According to the FBI, the September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon that claimed the lives of 2,973 innocent civilians required as much as $500,000 to stage. At the time, al Qaeda, the jihadi terrorist organization responsible for the mass killings, was operating on an annual budget between $30 and $50 million. However, despite the obvious fact that terrorists need money to support their terrorist operations and organizational infrastructure, prior to 9/11, preventing the financing of terrorism was not a priority for the United States or international community. Moreover, a comprehensive legal framework to …

Cuban Exceptionalism : Migration And Asylum In Spain And The United States, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

The Modern Version Of The Shot Heard 'Round The World: America's Flawed Revolution Against The International Criminal Court And The Rest Of The World, Sasha Markovic

Cleveland State Law Review

At a conference in Rome, nations from around the globe created the International Criminal Court to hold accountable and punish those responsible for genocide, war crimes and crimes against humanity. When the moment of truth arrived for the United States, the United States opposed the formation of the International Criminal Court. Moreover, in response to the existence of the Court, the United States took measures to insulate itself from the jurisdiction of the Court by enacting the American Servicemembers' Protection Act. The United States justified its opposition and actions against the Court by stating that the Court was a fatally …

The Development Of Human Rights In The United Kingdom, Lord Gordon Slynn

Fordham International Law Journal

There are two myths about the United Kingdom. The first is that we do not have a constitution and did not have any human rights law until very recently. The second myth, very much tied to the first, is that human rights is a new topic. I find that most law students seem to think that they alone have thought about fundamental human rights and that the rest of the world knows nothing about it. As with most myths, however, none of these is absolutely true.

The United Nations And The Law Of War: Power And Sensibility In International Law, Simon Chesterman

Fordham International Law Journal

This article serves as an introduction to the articles that follow, which examine questions of power and sensibility in four discrete ways. They look variously at the moral limits of international law, the extent to which power has been delegated to or asserted by the U.N. Security Council, the successes and failures of efforts at international criminal prosecution, and the challenge of applying the traditional laws of war in the context of a “Global War on Terror.” This introduction outlines the various contributions that follow and sketches out some potential implications.

Completing The Mandates Of The Ad Hoc International Criminal Tribunals: Lessons From The Nuremberg Process?, Daryl A. Mundis

Fordham International Law Journal

On September 2, 2004, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) filed a formal request for the transfer of the Ademi & Norac case to Croatia, pursuant to Rule 11 bis of the ICTY Rules of Procedure and Evidence (“ICTY RPE”). With this filing, the Prosecutor took an important and positive step towards giving effect to the completion strategy of the ICTY. This Article will discuss the steps taken by the ICTY and its sister institution, the International Criminal Tribunal for Rwanda (“ICTR”), to fulfill their mandates by focusing only on the most senior perpetrators …

Hostile Protected Persons Or "Extra-Conventional Persons:" How Unlawful Combatants In The War On Terrorism Posed Extraordinary Challenges For Military Attorneys And Commanders, Paul E. Kantwill, Sean Watts

Fordham International Law Journal

First, this Article reviews policymakers' and commentators' categorization of participants in Operation Enduring Freedom, the armed conflict in Afghanistan against al Qaeda and Taliban fighters. This Article concentrate specifically on the status of participants operating at the fringes of the categories of persons protected by the Geneva Conventions. It shows, for example, how al Qaeda and the Taliban fighters tested the bounds of the Conventions by employing methods of “warfare” which rendered them non-distinct and therefore made a determination of their status unclear. This Article demonstrates how policymakers and ultimately the U.S. President created a class of persons--so-called extra-conventional persons--who …

The Just War Tradition And Natural Law, Jean Bethke Elshtain

Fordham International Law Journal

This Essay is divided into three parts. First, it briefly discusses Augustine on the notion of a "naturalistic morality" implanted in human minds and hearts. Second, it traces the ways in which such notions as human nature figure in Augustinian and post-Augustinian arguments concerning war and peace. Third, it takes the measure of our current international crises and challenges from the perspective of human dignity the "naturalistic morality" Augustine addresses when he insists that there is, in fact, a nature we share, trails in its wake far-reaching ethical complications.

The Augustinian Just War Tradition And The Problem Of Pretext In Humanitarian Intervention, Thomas H. Lee

Fordham International Law Journal

I will try to show how the present laws of war might be viewed as consistent with the Augustinian just war tradition. The modern international legal regime, codified in the Charter of the United Nations ("U.N. Charter"), permits States to engage in war only in "individual or collective self-defense if an armed attack occurs against a Member of the United Nations;" or pursuant to a determination by the U.N. Security Council of "existence of any threat to the peace, breach of the peace, or act of aggression," and Security Council authorization of the use of force "to maintain or restore …

U.S.-Style Law School ("Law School") System In Korea: Mistake Or Accomplishment?, Hoyoon Nam

Fordham International Law Journal

This Note will examine Korea's efforts to transform its legal education system. Part I will explain the particularities of the legal profession in Korea and its current legal education system. Part II will discuss the proposed plan for the implementation of the Law School system in Korea and the arguments by the opposition with a brief comparison to Japan's efforts to reform its legal education system. Part III will then address the advantages and disadvantages of the proposed plan.

Dedication To Professor Valentine Korah, Roger J. Goebel

Fordham International Law Journal

This is a tribute (dedication) to Professor Korah for being a a leading academic in European Community competition law, together with the related fields of U.K. competition law and comparative/international antitrust.