International Law Commons^™

Does International Arbitration Need A Mandatory Rules Method?, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The role of mandatory rules in international arbitration remains a persistent source of debate. The basic problem is a straightforward one: contractual arbitration arises as a matter of the parties’ consent, but the resolution of contractual disputes can implicate mandatory rules of law that are not waivable and are typically designed to protect broader public rights. The literature has often presented the issue in terms of conflict between the authority of the state and the party-derived authority of the arbitrator. Asserting an independent public duty to protect national mandatory laws as well as the enforceability of arbitral awards, some writers …

A Global Treaty To Address Land-Based Sources Of Marine Pollution, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Land-based sources of pollution are estimated to be the source of approximately eighty percent of all marine pollution. In Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation, Daud Hassan outlines the major sources of Land-Based Sources of Marine Pollution (LBSMP), examines the current legal framework for control of LBSMP, and highlights the obstacles to creating more effective control measures. Additionally, Hassan presents a case study focusing on LBSMP control in the Bay of Bengal region and then concludes with a recommendation for the creation of a global treaty to more effectively address the impacts of …

Of Politics And Policy: Can The U.S. Maintain Its Credibility Abroad While Ignoring The Needs Of Its Children At Home?—Revisiting The U.N. Convention On The Rights Of The Child As A Transnational Framework For Local Governing, Cleveland Ferguson

ExpressO

The article uses the lens of the Convention on the Rights of the Child as a framework for developing solutions. It compares the world’s approach of using the underpinnings of the Convention to create the Millennium Development Goals (MDGs). This process represents a positive evolution in international human rights law. Use of the MDGs has met with some success. As a result, the article compares the U.S. go-it-alone approach with that of the collaborative model of the MDGs. Pointing out that child law is primarily state law, the article then discusses the ways in which local governments (cities, counties, and …

Book Review | Dan Sarooshi, International Organizations And Their Exercise Of Sovereign Powers (2005) & Margaret P. Karns & Karen A. Mingst, International Organizations: The Politics And Processes Of Global Governance (2004), Christopher G. Bradley

Law Faculty Scholarly Articles

This book review considers two books on international organizations: (1) Margaret P. Karns & Karen A. Mingst, International Organizations: The Politics and Processes of Global Governance, and (2) Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers.

The review notes several features that set the Karns & Mingst book apart from other treatments of international organizations. First is a thoroughgoing commitment to an integrated view of international organizations. The book insists (and demonstrates) that knowledge of politics, theory, and history are all indispensable to a rich understanding of the problems and processes of global governance. Second, Karns …

The Constitutionality Of Wipo’S Broadcasting Treaty: The Originality And Limited Times Requirements Of The Copyright Clause, Adam R. Tarosky

Duke Law & Technology Review

Because the proposed WIPO Broadcasting Treaty extends perpetual copyright-like protections to unoriginal information, its implementation would violate at least two fundamental limitations on Congress’s Copyright Clause power: the originality and "limited times" requirements. But Congress has a trump card--the Commerce Clause. This iBrief argues that to give proper effect to the limitations of the Copyright Clause, Congress should not be allowed to implement copyright-like legislation under the less restrictive Commerce Clause.

International Law And Rehnquist-Era Reversals, Diane Marie Amann

Scholarly Works

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the …

Toward An International Standard Of Abortion Rights: Empirical Data From Africa, Chad M. Gerson

ExpressO

In the Fall of 2005 I published a brief Development in the Chicago Journal of International Law concerning the prospects for establishing the right to obtain an abortion as a fundamental human right. See 5 Chi. J. Int’l L. 753. In that article I argued that the right to choose and access to abortion services would greatly improve the health and status of women and children in the developing world.

In this article, I follow up with empirical data regarding the status of abortion rights in African countries. These data are compared to maternal and infant mortality and contraceptive use. …

Protecting Intellectual Property In The Developing World: Next Stop—Thailand, Cortney M. Arnold

Duke Law & Technology Review

This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries.

Mining The Common Heritage Of Our Dna: Lessons Learned From Grotius And Pardo, Jasper A. Bovenberg

Duke Law & Technology Review

The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing analogous grabs in the past, declared the Human Genome the heritage of humanity. The UNESCO Declaration provided, first, that the heritage shall not, in its natural state, give rise to financial gains and, second, that countries establish an international framework to make the benefits from genome research available to all. This iBrief will first examine Grotius’s Mare Liberum to determine whether international law precedent …

Preventing International Terrorism: Can Multinational Corporations Offer A Fresh New Perspective?, Jocelyne Kokaz-Muslu

ExpressO

Multinational corporations (“MNC”s) while investing in new ventures all over the world, have managed a variety of risk factors such as developing country risk, language risk, cultural risk, currency risk, and political risk including terrorism. The risk management strategies that have worked for MNCs would be beneficial and effective for states around the world, as well as the United States of America (“USA”), to win the war against terrorism. Furthermore, the USA has a unique position in the world, where it has accumulated dormant knowledge regarding fighting terrorism in light of its ownership of the most respected, most profitable and …

On The Uneasy Relation Between International Law And Democracy, Carol C. Gould

ILSA Journal of International & Comparative Law

The question we are asked to address is as follows: "Is international law a threat to democracy?" As a political philosopher, my inclination is to suggest that the answer requires clarifying at the outset the sense in which we are using each of the main terms here.

Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

I joined Christie's a little over a year ago as Director of Restitution, coordinating Christie's restitution issues globally.

Mixed Blessings: The Great Lakes Compact And Agreement, The Ijc, And International Dispute Resolution, Austen L. Parrish

Articles by Maurer Faculty

For scholars of international law and international dispute resolution, the Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement may seem a mixed blessing. On the one hand, they promise environmental cooperation and management of the Great Lakes at an unprecedented scale. The agreements have been heralded as a tremendous advancement in state-provincial relations. On the other hand, international scholars should be nervous for what the agreements signify for international law and dispute resolution. The Compact and Agreement are remarkable for replacing an already functioning regulatory regime: the 1909 Boundary Waters Treaty, administered by the International Joint Commission.

This …

Transnational Communication And Defamatory Speech: A Case For Establishing Norms For The Twenty-First Century, David Goldberg

NYLS Law Review

No abstract provided.

Empresa Cubana Del Tabaco V. Culbro Corp., Victoria Loughery

NYLS Law Review

No abstract provided.

Recalibrating The War On Terror By Enhancing Development Practices In The Middle East, Kevin J. Fandl

ExpressO

This research paper suggests that the cart has been placed before the horse, that democratization and open markets in the Middle East are more likely the result of effective development than the catalyst for it. The war on terror has been justified by the United States as an effective means of reducing the possibility of terrorist attacks. This paper analyzes the validity of those justifications by reviewing the linkage between democracy and economic growth and that between democracy and peace.

The paper begins by hypothesizing that the war on terror and forced democratization of the Middle East are leading to …

Sovereignty, Self-Determination, And Environment-Based Cultures: The Emerging Voice Of Indigenous Peoples In International Law, Peter Manus

ExpressO

This article presents a survey of both the rhetoric and applications of international law addressing indigenous peoples' environmental rights. Part I assesses three terms that are widely used in international instruments - sovereignty, human rights, and self-determination - for their applicability to the environment-related interests of indigenous peoples. Part II presents a sixty year litany of international instruments as a means of tracing the evolution of global awareness of the uniquely vulnerable position that indigenous people occupy in the world community in connection with their environmental interests. Part III offers a comparative analysis of the cases Kitok v. Sweden and …

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt

ExpressO

In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt …

China’S Wapi Policy: Security Measure Or Trade Protectionism?, Zia K. Cromer

Duke Law & Technology Review

In December of 2003, the Chinese government announced that all WLAN equipment sold in China must conform to a propriety standard called WAPI, rather than the internationally accepted Wi-Fi standard. Moreover, for foreign firms to gain access to WAPI technology, they would need to partner with one of two-dozen Chinese firms designated by the Chinese government. The policy ostensibly grew out of security concerns regarding Wi-Fi, although it is unclear whether WAPI is more secure. Beijing has now indefinitely postponed the implementation of this policy, but WAPI is still relevant. This iBrief argues that WAPI is illustrative of many Chinese …

The Sps Agreement: Can It Regulate Trade In Nanotechnology?, James D. Thayer

Duke Law & Technology Review

Recent studies have shown that nanoparticles, which are approximately 1 to 100 billionths of a meter in size, present unique health and environmental risks. Nevertheless, products enhanced by nanoparticles, such as sunscreen, golf balls, and hard drives, are shipped daily in international trade. With these unique risks in mind, would measures regulating the trade in nanotechnology be subject to the WTO Agreement on Sanitary and Phytosanitary Measures? If they were, would the Agreement objectively balance the unique risks and benefits of trading in nanotechnology? Whether measures regulating the trade in nanotechnology are subject to the SPS Agreement depends on the …

The European Union “Software Patents” Directive: What Is It? Why Is It? Where Are We Now?, Robert Bray

Duke Law & Technology Review

This paper has been adapted from a presentation given by the author at Duke University School of Law's "Hot Topics in Intellectual Property Law Symposium" on April 1, 2005. It first presents an overview of the EU "Software Patents" Directive and many of the amendments that have been proposed and adopted. It then suggests a number of ways in which Europe can lead the world in developing a system that balances the interests of patent protection and open-source software.

Tax Havens And Public International Law: The Case Of The Netherlands Antilles, Georges A. Cavalier

ExpressO

This paper identifies changes to tax havens’ legislation as a result of pressure from rich countries exercised through the OECD. It focuses on the specific situation of the Netherlands Antilles. The paper analyzes the response given by the Netherlands Antilles to the international community through the modification of its tax agreement with the mother country in Europe, and considers whether this is a solution for adoption by other tax havens. The paper then argues that such a model is not appropriate for use in a small economy which cannot rely on a supportive mother country nor on tourism as an …

Western Institution Building: The War, Hayek’S Cosmos And The Wto, M. Ulric Killion

ExpressO

Despite the shortcomings of Hayek’s spontaneous order, there is a positive side, perhaps even a positive feedback. Hayek left us with a “what if” question and returns us to that initial opening of Pandora’s Box, or perhaps the initial onset of neo-realism, neo-liberalism, developmentalism, globalism, transnationalism and other concepts, precepts and adjectives justifying institution building by bargaining and military force. In terms of new world order, institution building by necessity requires fundamental changes in governmental structures in non-western cultures and nation-states such as China, Afghanistan and Iraq. Such changes are being prompted by means of political, economic and military powers …

Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

Bilateral investment treaties typically require the host state to ensure "fair and equitable" treatment to the investors of the other state.

Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

Globalization has changed the way global society addresses common and global problems. While there is much talk about aiming at sustainable development, there are no real clear definitions of sustainable development and the term remains susceptible to much misuse.

Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

"While academic debates about the possibility of objective truth and falsehood are often rarified to the point of absurdity, Rwanda demonstrated that the question is a matter of life and death."'

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

The Trade Of Cross-Border Gambling And Betting: The Wto Dispute Between Antigua And The United States, James D. Thayer

Duke Law & Technology Review

The first ecommerce dispute to come before the World Trade Organization ("WTO") was billed to be one of David and Goliath proportion. The tiny twin-island nation-state of Antigua and Barbuda challenged the United States' ban on cross-border Internet gambling and betting. As a result of the dispute, the WTO issued a private final report against the United States finding that the ban violates the United States' commitments under the WTO. Shortly before the public release of the final report, both parties petitioned the WTO to indefinitely postpone its release so that the parties could engage in private negotiations. The final …