Showing papers in "Berkeley Journal of International Law in 2000"

International Legal Mechanisms for Combating Transnational Organized Crime: The Need for a Multilateral Convention

Abstract: While the recent discovery of Russian money laundering operations in American banks and businesses may have come as a \"rude awakening for Americans,\"' some experts, more familiar with Russian organized crime, foretold the boom these international criminals would enjoy following the breakup of the Soviet Union: [T]he Iron Curtain ... was a shield for the West. Now we've opened the gates, and this is very dangerous for the rest of the world. America is getting Russian criminals; Europe is getting Russian criminals. They'll steal everything. They'll occupy Europe. Nobody will have the resources to stop them. You people in the West don't know our mafia yet. You will, you will. -Serious Crimes Investigator Boris Uvarov in 19922 Globalization has brought prosperity not only to Russian criminal organizations, but also to all of the major transnational criminal groups around the world. Over the last decade, organized crime groups have significantly advanced in size, sophistication, and degree of transnational activity and cooperation.3 Today's main international criminal organizations are operating with the technology of

International Disability Law - A New Legal Subject on the Rise: The Interregional Experts' Meeting in Hong Kong, December 13-17, 1999

Abstract: Disability law has not been a field of legal research and teaching at many universities in the United States nor has it been widely acknowledged in other countries around the world. In North America and most European countries, the issue of disability as a subject of law has commonly been included in social security and welfare legislation, health law or guardianship law. Thus, disabled persons have been depicted not as subjects of legal rights but as objects of welfare, health and charity programs. The underlying policy has been to segregate and exclude people with disabilities from mainstream society, sometimes providing them with special schools, sheltered workshops, special housing and transportation. This policy has been deemed just because disabled persons were believed incapable of coping with both society at large and all or most major life activities. Fortunately, when some countries made attempts to take a more integrative and inclusive approach to disability policy, major legal reforms resulted. Attempts to open up employment, education, housing, and goods and services for persons regardless of their disabilities have changed the understanding of disability from a medical to a social category. A key element of this new concept is the recognition that exclusion and segregation of people with disabilities do not logically follow from impairments, but rather from political choices based on false assumptions about disability. Inaccessibility problems do not so much re-

Justice, Accountability and Social Reconstruction:An Interview Study of Bosnian Judges and Prosecutors

Abstract: Author(s): Fletcher, Laurel; Weinstein, Harvey; Arnaut, Damir; Babcock-Halaholo, Daska; Carlson, Kerstin; Mahle, Anne

The Struggle for Protection of the Rights of Refugees and IDPs in Africa: Making the Existing International Legal Regime Work

Abstract: This paper focuses on the role that international human rights law, policy, and domestic legislation play in the protection of the rights of refugees and internally displaced persons in situations of civil war and ethnic conflict. I draw conclusions from my research experiences with refugees from the East African region,' which hosts hundreds of thousands of refugees and internally displaced people. Broadly, international human rights law provides for those rights that should be enjoyed by every individual in order to lead a decent life. These human rights apply to all situations, whether during peacetime or war, and they apply regardless of gender, race, ethnicity, religion, nationality, citizenship, language, sexual orientation, and physical or mental abilities. In this paper I argue that the existing international legal framework provides sufficient protection to all the victims of forced migration, both refugees and internally displaced persons. What is lacking in this framework is the ability of all key players to learn from past mistakes and the political will to use the available legal mechanisms in a way that can optimally protect them. Second, I argue that the staff members of many institutions, including the United Nations High Commission for Refugees (UNHCR), are not sufficiently competent to

TRIPS in Seattle: The Not-So-Surprising Failure and the Future of the TRIPS Agenda

Abstract: Government trade ministers arrived at that the WTO Seattle Ministerial Conference in late November 1999 without preliminary agreement on the future course of multilateral trade negotiations, and they departed without reaching consensus on a new WTO agenda. There was ample warning that the WTO Ministerial Conference in Seattle would face serious difficulties, with or without the public protests that disrupted the meeting. Only a few months before, WTO Members had completed the selection of a new Director-General – in fact the selection of two new Director-Generals to serve sequentially – in a tortuous process that lasted nearly a year. The Seattle agenda included a host of divisive issues involving serious substantive differences that Members had been unable to resolve in months of pre-meeting negotiations. Beyond hope in some quarters that pressure to maintain “momentum” would cause Members to abandon or compromise strongly held views, it is not clear why the Seattle Ministerial might have been approached with optimism about a comprehensive result. The failure to reach consensus on a WTO negotiating agenda in Seattle left considerable unfinished business on the table. In a number of areas, such as agriculture, existing WTO texts prescribed that negotiations would be resumed. Since the ministerial, the WTO General Council has agreed to move forward with negotiations in agriculture and services, at least to the extent of seeking to clarify the subject matter to be pursued. There has been no agreement on a future agenda for negotiations regarding trade-related aspects of intellectual property rights (or TRIPS), although a number of “built-in” agenda items remain before the TRIPS Council. The lack of agreement on a “new” TRIPS agenda is not surprising in view of the wide gulf in perspectives on this subject among WTO Members.This essay seeks to explain the absence of consensus on TRIPS, and why the near-to-medium term prospects for the setting of an ambitious agenda are not too bright. It reflects in modest detail on the particular controversy surrounding the potential for non-violation nullification or impairment complaints to be brought in the TRIPS dispute settlement context. This essay suggests that WTO Members might be best served in the near term by concentrating their efforts on establishing improved multilateral mechanisms to aid in the transfer of information and technology to developing and newly-industrialized countries.

The Chechen Refugees

Abstract: There were almost a million Chechens on earth in the early 1990's. Just over 700,000 of them lived in Chechnya (where in the 1989 census they comprised under 65% of the population). As of summer 1999, there were under 600,000 Chechens in Chechnya, perhaps considerably under that number. At present more than half of those people are de facto refugees, most of those remaining in Chechnya are trapped or imprisoned or displaced, thousands have been killed, and nearly every last surviving Chechen has been mined and bereaved. Prior to 1944, the great majority of Chechens lived in Chechnya. As of last summer probably closer to 60% of the Chechens lived in Chechnya. The other roughly 40% were for the most part an unwilling diaspora displaced by half a century of deportation, economic discrimination, war, economic chaos, and lawlessness. Since September 1999 over 325,000 more Chechens have fled Chechnya as war refugees and another 125,000 are internally displaced in Chechnya.I This article recounts the situations that have produced Chechen refugees and other displaced people over the last half century, gives estimates of their numbers, and describes the condition of the present wave of refugees. The term refugee will be used here of people who have fled war (though technically most of them are not refugees as they have not crossed a recognized international boundary). Others will be called deportees, forced migrants (if they have fled violence), and pressured migrants (if they have been squeezed out by economic duress and would probably return if they could). Generic terms covering all of these people and situations are diaspora (for the population), emigrant (for the individuals), and exodus (for the process and general situation). As this terminology indicates, the usual terms refugee, internally displaced, and emigrant do not apply particularly well to the Chechen situation, and in any case they do not capture (and were not designed to capture) the variety of specific situations that can underlie the long-term gradual mass exodus of a pressured people. Analysis of the situation of the Chechens requires consideration

A Half-Century of International Refugee Protection: Who's Responsible, What's Ahead

Abstract: The dawning of a new century and millennium in the year 2001 roughly coincides with the commemoration of fifty years of responsibility-sharing by States in an international system designed to protect and assist refugees. Toward the end of 2000, we will commemorate the 50th anniversary of the creation of the Office of the United Nations High Commissioner for Refugees (UNHCR). On December 14, 1950, the United Nations General Assembly passed a resolution creating the office of a High Commissioner for Refugees. This position, under the auspices of the United Nations, would provide \"international protection\" to refugees and seek \"permanent solutions\" for the problem of refugees in conjunction with the governments of member states. In the year 2001, we will reach another landmark: 50 years since the adoption of the 1951 Convention Relating to the Status of Refugees. Under different circumstances, the endurance for half a century of an institution in which all the world's States and citizens continue to be stakeholders would have called for a celebration. Why are we not celebrating? It is indicative of the ambivalence with which most people view the refugee issue that the UNHCR, after much internal reflection, has decided that now would not be a good time to \"celebrate.\" Indeed, one doubts whether there could ever be a good time to celebrate such an issue. Instead, a decision was made to focus on the strengths, potential and resilience of refugees as individuals and as communities throughout the world, in order to bring into sharp relief both the plight of refugees and their proximity to the ordinary person in the street. In so doing, the UNHCR hopes also to affirm the morale and value of all those who, along with the UNHCR, assist and advocate for the rights of refugees and the forcibly displaced. In December of 1950, the establishment of the UNHCR was a preliminary, and necessary, step toward achieving the goal of an effective, although young,