International Law Commons^™

Equitable Apportionment Of Shared Transboundary River Waters: A Case Study Of Modifications Of The Indus Waters Treaty, Waseem Ahmad Qureshi

San Diego International Law Journal

The principle of equitable utilization and the doctrine of equitable apportionment are regarded highly in customary international law for the apportionment of transboundary river waters between upper and lower riparian states. In this regard, the Indus Waters Treaty is an excellent example of the pragmatic implementation of the principle of equitable utilization, as well as of the principles of equity and justice. The treaty allottedthree eastern rivers to India and three western rivers to Pakistan in an attempt to equitably divide the shared Indus River basin and its five tributaries between the neighboring countries. However, India has now expressed an …

The European Union’S Competence On Foreign Investment: “New And Improved”?, Dominik Moskvan

San Diego International Law Journal

The general approach of the EU towards its trade and investment agenda changed in 2006 into a vigorous use of bilateral negotiations as the Union experienced opposition from emerging countries as well as the U.S. The use of bilateral agreements was seen as a reliable instrument to efficaciously realize the Union market power that was in decline. The future erosion of the EUs market position will likely continue and this will contribute to favoring the use of bilateral instead of multilateral trade agreements with the EU. However, as far as competence is concerned, should an investment treaty be signed in …

The First Competitive Video Gaming Anti-Doping Policy And Its Deficiencies Under European Union Law, Colby Stivers

San Diego International Law Journal

This Comment identifies the deficiencies of the ESL anti-doping regime and proposes solutions for compliance with international law. In addition to achieving compliance, the proposed solutions analyzed are selected to serve the values of eSports stakeholders, as well as the philosophical valuesof sports competition as a whole. Section II will identify those stakeholdersand values. Section III will identify and attempt to solve potential noncompliancewith EU treaty-based law under the European Convention on Human Rights and resolutions of the Council of Europe. Section IV will identify and propose solutions transposed from traditional sports anti-doping policies that address discrepancies with EU law …

The Dublin Regulation And Systemic Flaws, Jason Mitchell

San Diego International Law Journal

This Comment will discuss the systemic flaws in the Dublin Regulation and in the Member States asylum procedures, as well as the need for specificity in the definition of the systemic flaws; discussed in the Dublin Regulation. Section II will explain the history and source of obligation underlying the Dublin Regulation, and will also detail its development since its inception. Section III will explore the meaning of systemic flaws found in Article 3 of the Dublin Regulation. Section III will also discuss the cases decided by the European Court of Human Rights ( ECtHR ) and the European Court of …

Cuba Libre: A Verb? A Noun? Or A Cocktail?, Brian Eiselman

San Diego International Law Journal

This Article examines the nature of the history and origins of hostilities between the United States and Cuba leading up to the Embargo, and the Constitutional issue regarding the possible termination of the Embargo in view of the Helms-Burton Act. While President Kennedy enacted the Embargo unilaterally, the Helms-Burton Act usurped the power to regulate and conduct international affairs from the President, requiring a two-thirds Senate majority in order to lift or modify the Embargo.[] Arguably, this provision violates both the United States Constitution as well as International Law.[] Under the Obama Administration there was a new attitude towards Cuba, …

V.19-1, 2017 Masthead

San Diego International Law Journal

No abstract provided.

Vatican Condemnation Of Nazi War Crimes: Pope Pius Xii’S Denunciation Of Wartime Atrocities, Donald H. J. Hermann

San Diego International Law Journal

The debate on the silence of Pope Pius XII has been rekindled by recent close examination of the Pope’s 1942 Christmas Message denouncing totalitarianism and the killing of persons “only because of their nationality and race,” along with a particular condemnation of Marxist Socialism and a call for national and international relations to be based on natural law principles guaranteeing justice, order, and peace. In particular, Michael Phayer, a historian writing on the Vatican’s relation to the Holocaust, suggested a need for renewed attention to the 1942 Christmas Message. According to Phayer:

Historians . . . have been rather too …

Sub Judice And Free Speech: Balancing The Right To A Fair Trial Against Freedom Of Expression In Israel, Boaz Shnoor, Doron Menashe

San Diego International Law Journal

Over the past few years, a relatively large number of cases have arisen in Israel, in which media publications have allegedly influenced criminal proceedings. The Supreme Court of Israel has issued a number of inconsistent decisions regarding such publications.

In this Article, we will study the sub judice prohibition, analyze the concern of undue influence of media publications in criminal cases in light of contemporary behavioral literature, discuss the various approaches found in contemporary Israeli case law, and propose a new and better model.

On The Precipice: Prospects For Free Labor Unions In Vietnam, Tran Thi Kieu Trang, Richard Bales

San Diego International Law Journal

Vietnam (officially, the “Socialist Republic of Vietnam”) is rapidly transitioning economically, in large part due to pro-trade policies that have attracted international capital. A necessary component for Vietnam to further integrate into the world economy is to develop a system of industrial relations that will ensure industrial stability and reassure international manufacturers that there is no risk of embarrassment resulting from revelations of brutal or unsafe working conditions. Positive signs for rapid labor reform were visible as recently as early 2016 with the Trans-Pacific Partnership (“TPP”), a trade agreement intended to integrate trade among twelve countries (including Vietnam), which would …

The Prosecution Of Pirates And The Enforcement Of Counter-Piracy Laws Are Virtually Incapacitated By Law Itself, Waseem Ahmad Qureshi

San Diego International Law Journal

The legal framework to fight and suppress piracy is embodied largely in the United Nations Convention on the Law of Sea (“UNCLOS”), 1982, which is supplemented by United Nations Security Council Resolutions, and international conventions and treaties. This Article aims to critique the existing legal framework against piracy and challenge its efficacy in successfully curbing and eradicating piracy around the world throughout history. Unlike the extensive literature on legal studies of piracy, this Article recognizes piracy as a global menace, rather than observing it through the lens of regional differences. Consequently, this Article seeks to identify creeks and holes within …

Sir, The Radar Sir, It Appears To Be . . . Jammed: The Future Of “The Right To Be Forgotten” In A Post-Brexit United Kingdom, Cory Dibene

San Diego International Law Journal

The “Right to be Forgotten” is an EU doctrine. However, now that the UK is progressing towards leaving the EU in 2019, it is important to examine what jurisprudential changes will follow. This Comment will examine the “Right to be Forgotten,” the UK’s criticism of the EU Internet doctrine, and the future of the doctrine in the UK once Brexit takes full effect.

The future is somewhat unclear since Brexit arguably jammed the “Right to be Forgotten’s” radar in the UK. Arguments can be made for abandoning the Right and creating a new jurisprudence in the UK. The House of …

Physician-Assisted Suicide: Removing Residency Requirements In The U.S. To Comport With An International Right To Health, Alexi Silverman

San Diego International Law Journal

In 1948, the UN General Assembly passed a resolution, known as the International Bill of Human Rights. The Bill contains the Universal Declaration of Human Rights, articulating a human right to health. A subsequent treaty, the International Covenant on Civil and Political Rights states that “every human being has the inherent right to life.” Furthermore, the International Covenant on Economic, Social and Cultural Rights protects access to healthcare. However, these treaties do not explicitly recognize a “right to die,” leaving the decision of whether to allow euthanasia and physician-assisted suicide within the discretion of individual countries.

With this international background …

Pennoyer Was Right, Stephen E. Sachs

Faculty Scholarship

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law -- that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if …

What Is Foreign Relations Law?, Curtis A. Bradley

Faculty Scholarship

This draft first chapter of The Oxford Handbook of Comparative Foreign Relations Law considers what is potentially encompassed by the term “foreign relations law,” and what it might mean to think about it as a distinct field of law that can be compared and contrasted across national jurisdictions. The chapter begins by outlining some differences between foreign relations law and international law. It then describes the development of foreign relations law as a field of study within the United States and considers why, at least until recently, it has not been treated as a field in most other countries. Finally, …

Enforcing The Fcpa: International Resonance And Domestic Strategy, Rachel Brewster

Faculty Scholarship

The Foreign Corrupt Practices Act (“FCPA”), which bans corporations from offering bribes to foreign government officials, was enacted during the Watergate era’s crackdown on political corruption but remained only weakly enforced for its first two decades. American industry argued that the law created an uneven playing field in global commerce, which made robust enforcement politically unpopular. This Article documents how the executive branch strategically under- enforced the FCPA, while Congress and the President pushed for an international agreement that would bind other countries to rules similar to those of the United States. The Article establishes that U.S. officials ramped up …

The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani

All Faculty Publications

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal …

The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom

All Faculty Publications

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …

Transparency Evolution: More Than The Right To Know, Ljiljana Biuković, Pitman B. Potter

All Faculty Publications

Providing an analysis of global regulation and the impact of international organizations on domestic laws, this collection grew out of a central objective to explore methods of domestic engagement with international trade and human rights norms, and the inherent difficulties in establishing balanced links between these two international law regimes. The common thread of the papers in this collection is a focus on the application of socio-legal normative paradigms in building knowledge and policy support for coordinating local performance with international trade and human rights standards in ways that are mutually sustaining.

Transnational Constitution-Making: The Contribution Of The Venice Commission On Law And Democracy, Paul Craig

Articles by Maurer Faculty

Commission for Democracy through Law, better known as the Venice Commission. While part of the Council of Europe, the Venice Commission is much less understood than the European Court of Human Rights (ECHR), notwithstanding the existing literature. This chapter therefore seeks to explicate and evaluate. It begins by explicating the organizational foundations of the Venice Commission, followed by analysis of its remit and role. The focus then shifts to triggering and working methodology.

The remainder of the article is concerned with evaluation of the Commission’s role in relation to constitution-making as broadly conceived, the analysis being situated within the literature …

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …