International Law Commons^™

Sustainable Development And Market Liberalism's Shotgun Wedding: Emissions Trading Under The Kyoto Protocol, David M. Driesen

Indiana Law Journal

This Article analyzes the international emissions trading regime at the heart of the world's effort to address global warming as a means of exploring broader international governance issues. The trading regime seeks to marry two models of global governance, market liberalism, which embraces markets as the model of global governance, and sustainable development, which seeks to change development patterns to protect future generations.

This Article explores a previously unacknowledged tension between market liberalism's goal of maximizing short-term cost effectiveness and sustainable development's goal of catalyzing technological change for the benefit of future generations.T his Article presents new data and theory …

Order Without (Enforceable) Law: Why Countries Enter Into Non-Enforceable Competition Policy Chapters In Free Trade Agreements, D. Daniel Sokol

UF Law Faculty Publications

There has been an explosion in the past ten to fifteen years of bilateral and regional free trade agreements in Latin America (together, preferential free trade agreements or PTAs). The purpose of PTAs is to increase trade, regulatory, and investment liberalization. As trade liberalization requires more than just a reduction of tariffs, PTAs include "chapters" in a number of areas of domestic regulation. These chapters that address domestic regulation create binding commitments to liberalize domestic regulation that may impact foreign trade. Among chapters that address domestic regulation, many of the Latin American PTAs include a chapter on antitrust or competition …

Eastphalia Rising: An Enquiry Into The Emergence Of An Asian Perspective On International Law And Global Governance, Sung Won Kim

Maurer Theses and Dissertations

Interest in the possible impact of the rise of Asia in world affairs has been growing for a number of years. Asia’s emergence has become one of the most important developments in the post-Cold War international system, and it has drawn attention from scholars and practitioners who study the balance of power in international politics, the process of economic growth and competition, and the acceleration of globalization. Although definitions of what constitutes “Asia” differ, there is little disagreement that the epi-center for the rise of Asia sits in eastern and southeastern Asia, with China as the most prominent nation in …

The Importance Of Effective Investigation Of Sexual Violence And Gender-Based Crimes At The International Criminal Court, Susana Sacouto

Feminist Scholarship

INTRODUCTION: Several provisions in the Rome Statute of the International Criminal Court (ICC or the Court) indicate that the statute's drafters intended sexual violence and gender-based crimes to be given specific attention during the investigation of potential cases before the Court. For instance, Article 54(1)(b) requires that, in ensuring the "effective investigation and prosecution of crimes within the jurisdiction of the Court," the Prosecutor "take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children."' The Rome Statute also provides that States Parties, which are responsible for nominating and electing …

Worldwide Corporate Convergence Within A Pluralistic Business Legal Order: Company Law And The Independent Director System In Contemporary China, Chi-Wei Huang

UC Law SF International Law Review

This article will introduce both the dominant corporate model and corporate ownership structure as well as the model for the most efficient corporate governance system under the New Pluralistic Business Legal Order, as promoted by the proponents of the theory of global convergence of corporate governance. The author discusses how this phenomenon impacts China's corporate governance system during its ongoing economic and legal reforms. The author identifies the path dependencies and other problems the Chinese corporate governance system has been encountering, and suggests measures to address these problems. The article concludes by exploring why the path dependencies are harder to …

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, Kristoffel Grechenig, Martin Gelter

UC Law SF International Law Review

Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors. First, American legal realism enjoyed great success, whereas the German freelaw movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

Democratization: The Contribution Of Fair Trade And Ethical Trading Movements, Janet Dine

Indiana Journal of Global Legal Studies

De-democratization and institutional corruption threaten equality among the expanding global market community. International treaties have been largely unsuccessful because they are designed to favor the more politically and economically advantaged players. In addition to meeting these challenges, there are many additional benefits to be gained from adopting the principles of the Fair Trade and Ethical Trading movements. Finally, international law has an obligation to integrate the principles of social and ethical trading movements to prevent the autonomous powers and transnational corporations from dominating the traditional, less powerful markets and so that welfare increases for all.

Democracy and the Transnational Private …

From Agitation To Institutionalization: The Student Anti-Sweatshop Movement In The New Millennium, Purnima Bose

Indiana Journal of Global Legal Studies

This article provides an overview of the student anti-sweatshop movement and argues that the movement has been somewhat successful at changing policies. The primary objectives are twofold: first, to supplement existing literature on the anti-sweatshop movement by offering an account of its emergence and evolution at Indiana University-Bloomington; and second, to describe the Designated Suppliers Program (DSP), a United Students Against Sweatshops (USAS) initiative that proactively seeks to improve conditions for workers producing university-licensed apparel.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

The Relationship Of Participatory Democracy To Participatory Law Formation, Christiana Ochoa

Indiana Journal of Global Legal Studies

While the traditional doctrinal formulation of customary international law (CIL) has focused exclusively on state practice and opinio juris, in the modern age, it is undeniable that individuals and non-state collectives of individuals are increasingly becoming relevant to this process. It is thus useful to analyze individual participation based on the model of participatory democracy, and also in contrast to representative democracy. By doing so, the nuanced relationship between participatory law formation and democratic participation in lawmaking is brought into relief.I n light of larger modern trends within international law, the participation of individuals in law formation requires further examination …

Customary Transnational Law: Attacking The Last Resort Of State Sovereignty, Till Müller

Indiana Journal of Global Legal Studies

In the Westphalian State, Customary International Law (CIL) has traditionally been informed by high-level state action among close neighbors. However, it is no longer a foregone conclusion that CIL is resistant to the influences of greater globalization and transnational government and non-governmental action. As the interaction among and between national governments and non-governmental organizations increases in frequency, breadth, and physical distance, we are asked to reconsider the formation of modern CIL. Ultimately, the ever increasing importance of transnational cooperation, both in traditional governance and non-governmental action, necessarily informs modern CIL. The resultant body of law may appropriately be described as …

Securing The Global City: Crime, Consulting, Risk, And Ratings In The Production Of Urban Space, Katharyne Mitchell, Katherine Beckett

Indiana Journal of Global Legal Studies

The last decade has witnessed the rise of private transnational institutions that increasingly influence the organization and management of urban space. Two institutions are especially powerful in this regard: bond-rating agencies and global security firms. Bolstered by a discourse of risk and the need to securitize cities, these institutions have garnered enormous amounts of power with respect to urban social and spatial control. They are implicated in the imprisonment and displacement of marginalized populations, the intensification of gentrification, and general shifts in municipal funding priorities. The authors illustrate these themes through a case study of New York City, followed by …

Introduction: Democracy And The Transnational Private Sector, Christiana Ochoa

Indiana Journal of Global Legal Studies

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law-Bloomington, April 12-13, 2007

Rethinking Ngos: The Economy Of Survival And Global Governance, Marc Abélès

Indiana Journal of Global Legal Studies

This article explores the concept of "global politics," an evolving set of systems that undermine our traditional view of government. These underlying systems, including Non-Governmental Organizations (NGOs), exert great influence on the power and actions of nation-states. Thus, while current global politics are largely dependent on the actions and strategies of nation-states, nation-states are not the only actors at work. The article argues for a view of global politics that takes these other systems, particularly NGOs, into account.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

A Theory Of Open-Source Anarchy, David Fidler

Indiana Journal of Global Legal Studies

The rise of the importance of non-State actors in global politics challenges existing theories of international relations, and this article presents a new approach to the non- State actor phenomenon by developing a "theory of open-source anarchy." The article reviews the anarchy problem in the study of international relations and how leading theories explain this problem. This analysis questions whether these leading theories can explain the nature of non-State actor participation in contemporary global affairs. The article then develops a theoretical framework that addresses the non-State actor challenge. The framework argues that the nature of anarchy has shifted from a …

Privatization And Public Law Values: A View From France, Manuel Tirard

Indiana Journal of Global Legal Studies

This article uses a comparative approach to explore privatization and its consequences on public law values. It discusses the French model for protecting these values, which limits the scope of privatization and applies a legal regime within which public law norms play an active role. While it does not suggest that this model can or should be applied in the United States, it does express that the French experience can enrich American debates on the subject.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

Global Panopticism: States, Corporations, And The Governance Effects Of Monitoring Regimes, Larry Catá Backer

Indiana Journal of Global Legal Studies

Regulatory power has become fractured. Its assertion both by public and private bodies is well known. Less well recognized is that the expression of this regulatory power has been fracturing as well. No longer confined to positive regulation or judicial decision, the techniques for enforcing regulation are substituting for regulation itself. This paper examines surveillance as a mechanism through which power is asserted and regulation effected in a world of shared public/private governance. For this purpose, understanding the nature of surveillance as a technique of governance, and as a substitute for governance itself, is a key element for understanding political …

Reconstructing Contemporary Democracy, Jan Aart Scholte

Indiana Journal of Global Legal Studies

Democratic practice varies historically, and transformations of the societal context require accompanying reconstructions of democracy if "rule by the people" is to remain meaningful. Contemporary society is witnessing particularly profound changes in underlying structures of space, governance, and identity. Fundamental reconsideration of democracy is therefore also needed. This article first develops a generic understanding of democracy; next elaborates on currently unfolding transformations of geography, regime, and community; and then develops a five-faceted reconstruction of democracy to meet these changed circumstances. This prescription entails: (1) reconceptualizing democracy, shifting away from obsolete assumptions of territorialists pace, statist regulation, and nationalist identity; (2) …

The Hague Convention: The Problems With Accession And Implementation, Annette Schmit

Indiana Journal of Global Legal Studies

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ("the Hague Convention") was developed to enable adoptions to proceed according to the "the best interests of the child with respect for his or her fundamental rights." This Note discusses the dynamics of the Hague Convention with respect to the implementation process and the relationships between members of the Convention that are abiding by Hague Convention standards, members of the Convention that are not abiding by Hague Convention standards, and non-members of the Convention. The United States' recent ratification of the Hague Convention exemplifies the difficulties …

A Process Theory Of Natural Law And The Rule Of Law In China, Mark C. Modak-Truran

Journal Articles

This Article analyzes China's efforts to implement the rule of law and proposes a constructive, post-modern normative theory of law based on the Process Philosophy of Alfred North Whitehead and the Radical Empiricism of William James. This "process theory of natural law" provides a novel theory of natural law that eliminates the perceived illegitimacy arising from legal indeterminacy and closes the ontological gap between legal theory and practice. Process natural law also mediates many of the cultural differences between the East and the West through the telos of beauty (unity-in-diversity), which entails maximizing both an Eastern aesthetic sense of order …

Don't Be Left Out In The Cold: An Argument For Advancing American Interests In The Arctic Outside The Ambits Of The United Nations Convention On The Law Of The Sea, Jason W. Howard

Georgia Law Review

In the world of fast-depleting fossil fuel reserves, any area promising new sources of oil and natural gas will be valuable to the nation controlling it. The Arctic Circle could be such an area. Recognizing this, in August 2007, while gathering scientific data, a submarine placed a titanium Russian flag on the Arctic seafloor in a symbolic statement of Russia's claim to the area. As Russia and other nations prepare their claims under the U.N. Convention on the Law of the Sea, the United States, because it has not yet ratified the treaty, is left to defend its interest outside …

The Blessing Of Departure: Acceptable And Unacceptable State Support For Demographic Transformation: The Lieberman Plan To Exchange Populated Territories In Cisjordan, Timothy W. Waters

Articles by Maurer Faculty

What limits ought there be on a state's ability to create a homogeneous society, to increase or perpetuate non-diversity, or to create hierarchies within existing diversity? This paper examines those questions with reference to the Lieberman Plan - which proposes to transfer populated territories from Israel to the Palestine in exchange for Jewish settlements on the West Bank - as an abstract exercise in demographic transformation by the state.

First the article considers if the Lieberman plan would "work": Would it create the alterations it proposes, and would those changes achieve a stable, peaceful, even just settlement? It finds that …

Killing Globally, Punishing Locally?: The Still-Unmapped Ecology Of Atrocity, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Gender Politics, Gender Paradox: Establishing And Implementing Global Standards For The Promotion And Protection Of Women's Health, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Mandatory Rules In Civil Litigation: Status Of The Doctrine Post-Globalization, Hannah Buxbaum

Articles by Maurer Faculty

For all the scholarly attention paid to the role of mandatory rules in civil litigation, the doctrine regarding their use has never been fully developed. Certainly courts considering contracts governed by foreign law will sometimes override that law, applying a mandatory rule of the forum in its place. But in its most expansive articulation, the "mandatory rules" theory would also permit courts in certain circumstances to apply the mandatory law of a third country - a direction in which courts have declined to go. This article examines one of the justifications forwarded by early proponents of this more expansive approach: …

Strategies For Implementing The New International Health Regulations In Federal Countries, David P. Fidler, Kumanan Wilson, Christopher Mcdougall, Harvey Lazar

Articles by Maurer Faculty

The International Health Regulations (IHR), the principal legal instrument guiding the international management of public health emergencies, have recently undergone an extensive revision process. The revised regulations, referred to as the IHR (2005), were unanimously approved in May 2005 by all Member States of the World Health Assembly (WHA) and came into effect on 15 June 2007. The IHR (2005) reflect a modernization of the international community’s approach to public health and an acknowledgement of the importance of establishing an effective international strategy to manage emergencies that threaten global health security.

The success of the IHR as a new approach …

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Indiana Law Journal

No abstract provided.

The Wto And Domestic Political Disquiet: Has Legalization Of The Global Trade Regime Gone Too Far?, James R. Cohee

Indiana Journal of Global Legal Studies

The recent "legalization" of the global trade regime (the WTO) has inspired enormous amounts of research and literature. Fewer commentators, however, have examined WTO legalization from the perspective of domestic interest groups. I add to this growing subfield of literature by arguing that the WTO has not exceeded its boundary for domestic political acceptance, nor will it likely do so in the near future. In one respect-" judicial activism"-legalization does, however, present a threat to domestic political support. Still, drawing from historical lessons, I argue that the WTO as an institution will face irrelevance only if both protectionists and multilateralists …

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible, Michael P. Scharf

Faculty Publications

Written by a consultant to the United Nation's newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year -- whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, …