Showing papers in "Berkeley Journal of International Law in 1999"

The Clash between Local Courts and Global Economics: The Politics of Judicial Reform in Brazil

Abstract: This article analyzes the connection between global economic and political trends and Brazilian strategies for judicial reform. A global consensus has emerged in favor of economic liberalization strategies and these strategies require the rule of law to create certainty and predictability. This article maintains that the Brazilian president’s choice of judicial reform proposals is shaped by the government’s attempt to revamp Brazil’s economy and bureaucratic state structure to engage in a single world market, in concert with the global neoliberal paradigm.

General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties

Abstract: The idea of \"human rights\" became a watchword of international politics in the wake of the atrocities of World War II. Since that time, the general concept of a universal, inalienable set of rights has been given legal content through the development of international treaties defining those rights and purporting to bind the treaties' signatories to respect them. However, in reality these treaties have not proved to be binding. States have signed the treaties and then flouted their precepts with impunity.' The United Nations Human Rights Committee (hereinafter \"Committee\") has long faced such an enforcement problem in its administration of the International Covenant on Civil and Political Rights (hereinafter \"Covenant\"). As the Covenant's administrator, it is the Committee's responsibility to review the states parties' compliance with the Covenant. Rather than agreeing to the Covenant as it is written, many states have submitted reservations indicating that they do not consent to particular Covenant provisions. By creating such reservations, states parties can remain in technical compliance with the Covenant while engaging in practices that the Covenant condemns. By the 1990s, such reservations had become so commonplace and comprehensive that often states did not in fact agree to any change in their laws or policies by signing the Covenant. In 1994, in response to this problem, the Committee issued General Comment 24 (hereinafter \"the Comment\"), a statement of the Committee's revolutionary new policy on reservations. Rather than leaving the issue of reservations to the states parties, the Committee itself would judge the validity of reservations. Rather than allowing a state to define the limits of its obligations under

Living with the IMF: A New Approach to Corporate Governance and Regulation of Financial Institutions in Korea

Abstract: Improving corporate governance is not easy, particularly for newly industrialized economies. Policymakers in such economies have little experience in controlling such problems as shirking and greed when they appear in the sophisticated organizational form of the modem corporation. As a result, they must turn to the more advanced economies to find a role model for institutional reforms and improvements. Comparative corporate governance is an important area of study in this regard. A recent study on comparative corporate governance noted that \"[n]ational governance systems turned out to be more adaptable in function, and therefore more persistent in form, than the prophets of convergence expected.\"' This study also suggested that formal convergence should come as a last resort due to the substantial political and social costs involved.2 This view delivers important messages to scholars and policy-makers of some newly industrialized countries who are struggling with corporate governance issues in order to improve the

Bringing Justice to an Embattled Region - Creating and Implementing the Rules of the Road for Bosnia-Herzegovina

Abstract: In October 1992, the United Nations assembled a Commission of Experts to review, under the direction of Professor Cherif Bassiouni, evidence of violations of international humanitarian law in the former Yugoslavia, and to provide a detailed account of such evidence to the Secretary-General.' In the wake of continuing terror and death in Bosnia, and following several failed diplomatic efforts to end the war and prevent further atrocities, the United Nations (UN) Security Council was seeking a judicial solution to the alleged grave breaches of international humanitarian law occurring in the former Yugoslavia. On February 22, 1993, based on the Commission's findings, the Security Council passed Resolution 808, authorizing the establishment of a Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.2 According to the Resolution, the Secretary-General was to report on the proposed Statute of the Tribunal.3 On May 25, 1993, the Security Council adopted

Like Is a Four-Letter Wort - GATT Article III's Like Product Conundrum

Abstract: The General Agreement on Tariffs and Trade of 1947 (General Agreement)' seeks to limit the ability of each individual government to insulate its constituent industries from outside competition.2 One of the central principles of the General Agreement is that of national treatment, a principle of nondiscrimination embodied in Article 111. 3 In theory, Article III prohibits internal taxes and other regulations that enhance the competitive position of domestic producers relative to that of foreign producers. Central to the application of Article 1II, particularly the second paragraph which addresses the use of internal taxes and other charges to differentiate between imports and domestically produced goods, is the concept of "like product," which arises out of the language of the statute.4 Of the limited number of dispute resolution panel rulings issued by GATT, three have considered in de-

The Demise of the Nation-State: Towards a New Theory of the State under International Law

Abstract: It may seem premature to speak of the demise of the nation-state' when the last decade has seen the proliferation of ever-smaller nation-states throughout Eastern Europe and Asia and the demand for secession from national movements in countries as diverse as Canada, Yugoslavia, Sri Lanka, Indonesia, Russia, Spain and India. Nevertheless, the seemingly contradictory centrifugal forces of nationalism and the centripetal forces of confederation and federation are simply different stages of the same historical process that have been occurring since before the 17th century. 2 This historical process has consisted of

Cradle to Border: U.S. Hazardous Waste Export Regulations and International Law

Abstract: This paper explores current U.S. law regulating the transboundary shipment and export of hazardous waste, under both the Resource Conservation and Recovery Act (RCRA) and applicable treaties. The paper attempts to untangle the overlapping strands of domestic law, including statutes, common law and ratified treaties, in the context of current international agreements. In addition, the paper examines the legal remedies provided by the Alien Tort Claims Act (ATCA) and its potential use by alien plaintiffs harmed by hazardous waste exported in violation of U.S. law or applicable treaties. The central insight of the paper is that the exemptions provided by RCRA, that were designed to encourage recycling and reuse of certain wastes, have created a loophole that allows many types of toxic waste to be exported without any regulation, data collection, or monitoring. Further, these "exempt wastes" are exported without any assurance that the wastes will be recycled or reused, or alternatively, disposed of in environmentally responsible manner. Examples of the kinds of wastes that slip through this loophole include: car batteries that contain corrosive acids and lead; and K061 waste from steel manufacturing that may contain high levels of toxic heavy metals and may be exported for use in fertilizer without regulation. In essence, the current regulatory structure provided by RCRA does not ensure that all domestically generated hazardous waste is recycled, reused or disposed of in an environmentally responsible manner once it crosses the border. The paper next looks at the role of the Organization for Economic Cooperation and Development (OECD) and the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (Basel). The U.S. is a member of OECD but has not ratified Basel despite the fact that over 120 other counties are parties to the Convention, including Canada, Mexico, and the countries of the European Union. Because current U.S. export practices and regulations are not in compliance with Basel, and OECD rules are less stringent, it is becoming increasingly difficult for those U.S. trading partners who are parties to Basel to comply with the Convention.