Showing papers in "Berkeley Journal of International Law in 2006"
TL;DR: In this article, the author is a naturalized American citizen who was born in Germany to American parents, and she is not now, nor has she ever been, a national or citizen of Germany, though she feels at home there.
Abstract: * Professor of Law, Golden Gate University School of Law; Ph.D. Candidate in Jurisprudence and Social Policy, University of California, Berkeley; and Visiting Scholar, University of Cologne Legal Centre for European and International Cooperation (R.I.Z.). Thanks are owed to Golden Gate University for generous research support, to R.I.Z. for providing a stimulating and supportive work environment, and to Hannah Luise Buxbaum for comments on an earlier version of this article. The author is a naturalized American citizen who was born in Germany to American parents. She is not now, nor has she ever been, a national or citizen of Germany, though she feels at home there.
28 citations
TL;DR: The United Nations Security Council referred the situation in Darfur to the International Criminal Court ("ICC") on March 31, 2005 and the United States abstained from the Security Council's vote, rather than exercising its veto power as many expected as discussed by the authors.
Abstract: On March 31, 2005, the United Nations Security Council referred the situation in Darfur to the International Criminal Court ("ICC"). The decision of the United States to abstain from the Security Council's vote, rather than exercise its veto power as many expected, allows the ICC to exercise criminal jurisdiction over the crimes committed in Darfur. With the United States not pushing their opposition to the Court to the point of blocking the Security Council's referral of the Darfur case, the ICC made an important move from academic exercise to legal reality. 1 Although the State Department did not tire of emphasizing that this abstention does not mark a change in the United State's position on the Court, the first case to be referred by the Security Council is nonetheless an important step for ensuring the ICC's future work. While some celebrated the referral as a "breakthrough" for the Court, others remained skeptical, stressing the unchanged U.S. position towards the ICC and its consequential diminishing of the Court's power and legitimacy. Part II of this article will address a question prompted by the referral of the Darfur situation and the political debate surrounding the content of Security
24 citations
TL;DR: In this paper, the authors examine the trafficking of Ethiopian domestic workers into Lebanon and propose prescriptive measures aimed at protecting the human rights of Ethiopia domestic workers in Lebanon, and combating illegal trafficking.
Abstract: This article examines the trafficking of Ethiopian domestic workers into Lebanon. Since 1989, the number of domestic workers from Ethiopia trafficked into Lebanon has skyrocketed. The majority of these domestic workers are neither extended protection from their native or host states, which coupled with local racism and xenophobia, exposes these domestic workers to economic exploitation, abuse, and violence. This article provides a survey of this under-examined maid trade, and proposes prescriptive measures aimed at protecting the human rights of Ethiopian domestic workers in Lebanon, and combating illegal trafficking.
20 citations
TL;DR: The ICTY [International Criminal Tribunal for the Former Yugoslavia] is one court before which NATO leaders will not have to appear as mentioned in this paper, and although the Court clearly had jurisdiction, the prosecutor at the Court decided to follow the advice of the Committee that no formal investigation be initiated.
Abstract: When the member states of NATO decided to initiate Operation Allied Force, few governments probably contemplated that they risked defending their actions before an international court. The increasing presence and importance of international courts appear to be the way of the future, whether one likes it or not. The ICTY [International Criminal Tribunal for the Former Yugoslavia] is one court before which NATO leaders will not have to appear. Although the Court clearly had jurisdiction, the prosecutor at the Court decided to follow the advice of the Committee that no formal investigation be initiated.2
19 citations
TL;DR: In this article, the authors describe the emergence of a new regime of occupation and an emerging "de facto modern law of occupation" that break dramatically from past practice and the de jure law-of-occupation.
Abstract: Conventional wisdom holds that international occupation is a temporary byproduct of war. The international law of occupation is grounded in this assumption and consists of a substantive norm of interim administration with limited discretion on the part of the occupant and a procedural norm of unilateralism. Yet many observers of the occupations of Iraq and Afghanistan intuitively sense that modern occupations are somehow "different" and that new or changed rules apply. That intuition is correct. This Article describes the emergence of a new regime of occupation and an emerging "de facto modern law of occupation" that break dramatically from past practice and the de jure law of occupation. The substantive norm of this new model is nation-building and the procedural norm is multilateralism. The assumptions and parameters of the de jure law of occupation are outdated and incapable of providing a meaningful legal framework for modern occupations. What are the consequences of this new model of occupation and the resultant lacuna of applicable international law? The occupation of Iraq illustrates a paradigm shift in the practice of occupation and proves that the resource and legitimacy needs of modern occupations create an "invisible hand" that pushes occupying powers toward international cooperation and compliance with international norms of behavior. At the same time, however, the era of multilateral occupation contains defects because its de facto rules lack the advantages of positive law and the legal status of territory occupied by the United Nations is ambiguous.
16 citations
TL;DR: German reparations have also been at the center of the single most critical and controversial evolution of public international law in the past century; namely, the movement from state-centered to societal and individual-centered rights and obligations.
Abstract: We have witnessed an increasing interest in reparations over the past decade, an interest derived from episodes both domestic and international, ranging historically from the legacy of slavery in the United States to events occurring these past ten years in Iraq and the Horn of Africa.1 One principal event, which not only generated most of the reparations activities and discourse of the past half-century but which has also been the subject of much of the litigation and negotiations of the most recent period, is the German payment of reparations arising out of World War II atrocities. 2 German reparations have also been at the center of the single most critical and controversial evolution of public international law in the past century; namely, the movement from state-centered to societaland individual-centered rights and obligations. This evolution has its substantive focus in the field of international human rights, and its procedural focus in the increasingly contested primacy of state reparations over direct individual claims for compensation and restitution. Both issues arose in and are illuminated by the history of German reparations and compensation or restitution payments.
16 citations
TL;DR: In the case of Central Asia's Baku-Tbilisi-Ceyhan (BTC) pipeline, U.S.-based energy-sector law firms have negotiated the legal architecture, financing, and construction of the pipeline in fulfillment of the "contract of the century" as mentioned in this paper.
Abstract: Over the past decade, U.S.-based energy-sector law firms have negotiated the legal architecture, financing, and construction of Central Asia's BakuTbilisi-Ceyhan ("BTC") oil pipeline in fulfillment of an oil project that analysts have dubbed the "contract of the century." Regional organizations decry the usual litany of economic, human rights, and environmental costs universally associated with big oil. The pipeline's most striking feature, however, is the way the deal was made. Instead of using merely contract instruments, the law firms crafted an international treaty that invokes a "principle of the freedom of transit of Petroleum" which, inter alia, chills development of local regulatory regimes, dodges challenges posed by the recent surge in human rights cases following Doe v. Unocal, and upends international law's central tenet of sovereignty through radically asymmetrical terms and wholesale transfer of land and other
16 citations
TL;DR: In fact, from 1993 to 1998, the number of applications filed for review increased by 465 percent, further adding to the case backlog as mentioned in this paper, and the Council of Europe projects that the Court's caseload would continue to rise sharply if no action were taken.
Abstract: It is well known that the European Court of Human Rights (\"ECHR\" or \"the Court\") is facing an influx of individual applications, which has obstructed its complaint review procedure.1 In fact, from 1993 to 1998, the number of applications filed for review increased by 465 percent, further adding to the case backlog. 2 Even worse, the Council of Europe projects that the Court's caseload \"would continue to rise sharply if no action were taken.\" 3 Still more alarming is that, while the Court's caseload continues to increase exponentially, only four-
14 citations
TL;DR: In this paper, the authors trace the development of German competition law post-World War II, focusing on the patterns of pressure and resistance within the transatlantic relationship and identify the emergence of an indigenous regulatory enforcement philosophy.
Abstract: One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic regulatory scheme. The first is regional: a new European Council Regulation modernizing competition law enforcement. The second is transatlantic: a series of cases that threatened to expand further the jurisdiction of U.S. courts over extraterritorial anti-competitive conduct. In both contexts, Germany strongly protested the potential undermining of its local competition enforcement philosophy. The article examines the links between that resistance and the particular historical context of German competition law. It thereby suggests more generally that the search for transnational regulatory systems capable of addressing global conduct must continue to account for the diversity of historical and cultural contexts that underpin various national regimes.
13 citations
TL;DR: In this article, a sketch of the author's political theory of international courts and tribunals is presented, and an overview of selected political science literature is provided to introduce a more expanded view of the function of international court.
Abstract: This essay offers a sketch of the author's political theory of international courts and tribunals. First, it suggests two basic distinctions between types of international tribunals. Second, an overview of selected political science literature is provided to introduce a more expanded view of the function of international courts. Third, the essay provides a sketch of the bounded strategic space theory as a means for understanding and explaining international courts and tribunals.
13 citations
TL;DR: Airey Neave as discussed by the authors noticed the unusually brilliant shine on Colonel Burton Andrus' helmet, as the two officers stood waiting outside the prison wing of the Palace of Justice at Nuremberg on the afternoon of October 19, 1945.
Abstract: Major Airey Neave, famous at age twenty-nine for his multiple escapes from Nazi prisons, noticed the unusually brilliant shine on Colonel Burton Andrus' helmet, as the two officers stood waiting outside the prison wing of the Palace of Justice at Nuremberg on the afternoon of October 19, 1945. Neave was a German-speaking London barrister whose wartime heroics with the clandestine British intelligence service, MI-9, had involved disguising himself variously as a Dutch electrical worker, a German corporal, and a German artillery lieutenant. The afternoon before, Francis Biddle, former U.S. Attorney General and the American judge at Nuremberg, had cavalierly informed Neave that the young major was to serve copies of the Nuremberg Charter, along with a detailed criminal indictment, on the Nazi leaders incarcerated in the Palace of
TL;DR: In this article, the formation of a new transnational legal order in the professional sphere is discussed and the bottom-up law formation process in commerce and finance in that order driven and maintained by globalisation and its law creating and sustaining force.
Abstract: This article explores the formation of a new transnational legal order in the professional sphere and discusses the bottom-up law formation process in commerce and finance in that order driven and maintained by globalisation and its law creating and sustaining force. The modern lex mercatoria is the private law of that order and its different sources of law and the hierarchy between them is explained as well as the remaining competition with the law in domestic legal orders relevant in particular when international transactions come on shore in such orders and their public policies are engaged.
TL;DR: In this paper, the authors propose a model of linkage and accommodation in the World Trade Organization (WTO), which can shed light on the structural and normative influences of powerful regimes.
Abstract: International regimes interact with each other through linkage and accommodation. The World Trade Organization, as a powerful regime, has been pressed to account for, or link, the values of other regimes. One can already see attempts at linkage within the WTO. At the same time other regimes operate within the shadow of the WTO's primacy and power. Regimes adjust their functioning to coexist with the WTO. These regimes thus "accommodate" the WTO. One can see an example of this dynamic relationship among regimes by analyzing provisions of the WTO's Agreement on Sanitary and Phystosanitary Measures and the Cartagena Protocol on Biodiversity. While initially such linkage and accommodation has some appeal, it may also mask important normative differences among regimes. Modeling linkage and accommodation mechanisms can shed light on the structural and normative influences of powerful regimes.
TL;DR: In this article, the authors show that the Appellate body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.
Abstract: Economic liberalization not only requires rules goveming economic exchange (such as multilateral trade agreements), but also institutions (such as courts) goveming how rules are enforced. However, once courts are established to govem economic exchange, they tend to expand their competence to political and social policy. Political scientists have used this theoretical framework to explain the evolution of national (for example the U.S. Supreme Court) and quasi-intemational (for example the European Court of Justice) judicial institutions. In this article, I explain how this model can be extended to a truly intemational "judicial" institution, the WTO's Appellate Body. The thesis of this article is that the Appellate Body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.
TL;DR: Commonality does not require identical laws but rather legal regimes that, while still reflecting national contexts, are based on shared principles as mentioned in this paper, which is the case in the case of the Internet.
Abstract: Information has been described as the \"cornerstone of a democratic society and market economy,\"1 and enhanced technologies for using personal data have arguably transformed financial services into an \"information industry.\" 2 Walter Wriston, former chairman of Citicorp, asserted that \"information standards\" have replaced money in global financial markets. 3 Information today is fundamentally global. The technologies that carry it ignore national borders. Multinational corporations and consortiums of organizations that share data dot the globe. In the case of the Internet, multinational banking networks... , credit and financial services networks ... , and stock and commodities networks .... it is virtually meaningless to talk of national privacy law. What consumers and service providers alike need are common standards applicable throughout the world. Commonality does not require identical laws but rather legal regimes that, while still reflecting national contexts, are based on shared principles. The sheer technological power of the digital age, offering huge advances in the type and quality of products offered in the economic marketplace, also poses unprecedented threats to personal safety and autonomy if privacy is not adequately protected. In response to mounting privacy concerns in an era of
TL;DR: In this article, the authors discuss the role of business in the National Socialist dictatorship between 1933 and 1945 and the questions of restitution and compensation for Jews-but not only Jews-for property and various assets stolen by the Nazi regime and for forced labor.
Abstract: Before turning to the subject at hand, I would like to express my appreciation to the Alexander von Humboldt Foundation for making this wonderful year possible, for organizing this symposium, and for inviting me to speak to so distinguished an audience. I find myself in the odd situation of being the only humanist-social scientist among the four speakers and the only person who is working on Germany and Central Europe. As is so often the case, historians feel themselves a bit like impostors when they are referred to as \"scientists.\" And while for good historical reasons that can be explained-both natural scientists and scholars of the humanities and social sciences are all referred to as Wissenschaftler in German-some find what we have to offer more akin to \"unorganized soft matter\" than to \"real science.\" Nevertheless, historians often do deal with problems of very contemporary relevance that affect us all and become involved in political issues and debates, and this has been the case with myself during the past decade. I have a special interest in German business history, a field that has been at the center of recent efforts to deal with the problems of the role of business in the National Socialist dictatorship between 1933 and 1945 and with the questions of restitution and compensation for Jews-but not only Jews-for property and various assets stolen by the Nazi regime and for forced labor. Historians do not normally become involved in such \"hot\" issues directly-the Owl of Minerva, in Hegel's famous phrase, normally being heard at sunset-and I thought it might be of interest to discuss some of my experiences in the \"real world\" of a historian suddenly caught up in these emotionally charged and highly political issues. As some of you may know, the issue of Holocaust assets came to the fore in 1996-1997 thanks to charges emanating from Jewish groups angry about unpaid Swiss bank accounts, the mobilization of the U.S. government to put pressure on the Swiss to open their banking files, and the mobilization of various American legislative and regulatory authorities to put the heat on the Swiss. The
TL;DR: In 2004, the European Union (EU) welcomed to its fold ten new members: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.
Abstract: On May 1st, 2004, the European Union (EU) welcomed to its fold ten new members: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.I Fireworks erupted across the continent at 12:01 a.m. while newly minted EU citizens celebrated to the triumphant strains of Beethoven's \"Ode to Joy,\" the EU anthem. Europeans drank toasts, traveled across newly relaxed borders, and attended concerts and parties.' The next morning, representatives from all 25 EU Member States gathered in Dublin for a symbolic ceremony to raise the flags of the new members besides those of the fifteen previous members. 3 EU and national leaders addressed messages of celebration, unification, and welcome to the new countries. \"Welcome to the new Europe,\" declared Romano Prodi, President of the European Commission. \"Today Europeans are celebrating the fact that they are no longer kept apart by phony ideological barriers.\" 4 The Chancellor of Germany, Gerhard Schrrder, proclaimed: \"Today we have the unique chance to change this Europe into a
TL;DR: Anwar et al. as mentioned in this paper made a speech to the United Nations General Assembly in which he referred to his perception of the challenges facing international law and stated that the rule of law is at risk around the world.
Abstract: In September 2004, United Nations Secretary General, Kofi Annan made a speech to the General Assembly in which he referred to his perception of the challenges facing international law. \"Today the rule of law is at risk around the world,\" he said. \"Again and again, we see laws shamelessly disregarded.\"1 With specific references in his speech to massacres of civilians and the execution of hostages in Iraq, Iraqi prisoners being \"disgracefully\" treated, the displacement of populations in Sudan, suicide bombings by Palestinian terrorists and the \"excessive\" use of force against the Palestinians by Israel, Annan referred to violations of what could be described as international law's aspirational or \"Kantian\" principles. 2
TL;DR: In this article, the ant discovers a chrysalis in a tree and derides it for being imprisoned in its shell, with power only to move a joint or two of your scaly tail.
Abstract: In Aesop's fable, The Ant and the Chrysalis, an ant discovers a chrysalis in a tree and derides it for being imprisoned in its shell, with \"power only to move a joint or two of your scaly tail.\" 1 One day, the butterfly emerges from its bondage and flies off, leaving the ant with one clear lesson: evolution and change are always possible. At first glance, the ant's lesson appears inapplicable to the new African Court on Human and Peoples' Rights (Court). Like the chrysalis, the Court has been tightly bound. Its two founding treaties, the African Charter on Human and Peoples' Rights (African Charter) and the Protocol on the Establishment of an African Court on Human and Peoples' Rights (Protocol establishing the Court), 2 staunchly protect state sovereignty, restricting the institution's power to act. Individual access to the Court is only possible through state consent. Requirements of confidentiality, amicable settlement and exhaustion of local
TL;DR: A comparative overview of the field of choice of law can be found in this article, where the authors argue that courts should be open towards application of foreign law, apply the law of one of the states involved, determine the reach of both foreign and forum law, strive for conflicts justice, and apply rules instead of standards.
Abstract: After years of disregard, the law and economics movement has finally taken note of the field of choice of law. However, up until today most of the contributions have focused on specific topics - such as the applicable law in contracts, torts or product liability - and skipped the underlying fundamental issues that determine the general design of choice of law rules: (1) Should courts apply foreign law at all or should they always resort to their own law? (2) Should courts create multistate substantive law specifically designed for international transactions or should they apply the law of one of the states involved? (3) Should choice of law rules resort to the unilateral method and define the reach of forum law only or should they apply the multilateral method and determine the reach of both forum and foreign law? (4) Should courts search for material justice or rather for conflicts justice? (5) Should choice of law strive for legal certainty or rather for flexibility? This article provides a comparative overview as well as an economic analysis of the answers legal scholarship has provided to these questions over time and across countries. It argues that courts should (1) be open towards application of foreign law, (2) apply the law of one of the states involved (3) determine the reach of both foreign and forum law, (4) strive for conflicts justice, and (5) apply rules instead of standards.
TL;DR: Buxbaum as discussed by the authors has been a student of Germany in the context of international law and has been recognized and honored by his colleagues in German Universities, including Berkeley's Department of Area and International Studies from 1993 to 1999.
Abstract: With his roots in the German-speaking world, for much of his distinguished career, Professor Richard Buxbaum has been a student of Germany in the context of international law. His scholarship has been recognized and honored by his colleagues in German Universities. As Dean of Berkeley's Department of Area and International Studies from 1993 to 1999, he consistently encouraged and supported the Center for German Studies at the University. This paper, dedicated to him, is a reflection of conversations he and I have had over the past few years concerning the future of Germany. Throughout the history of both the German states that comprised Germany after 1949, it was taken as an article of faith that Germany would one day be reunified. Because its founders considered the Federal Republic of Germany (FRG) to be a temporary state, the preamble to their constitution, the Basic Law of May 23, 1949, declared that it was a transitional document. It guaranteed citizenship to Germans living outside the FRG upon their arrival there, thus intending to serve those Germans in the East who could not participate in its creation. In his inaugural address in 1960, the Federal Republic's second President, Heinrich Liibke, declared that German reunification "remains the question of our national life ... on which we are all united, irrespective of party and religious affiliation. In the long run, Germany will not remain separated, whether by absurd boundaries or by brutal disruption of personal ties."1 He considered the reunification of the two Germanys to be a "natural right."2 For conservative politicians in the West, maintaining the vision of a reunified Germany served to cultivate support from the thousands of voters who had been expelled from the eastern territories lost to Germany at the end of World War II; while it was politically expedient, it also helped to forestall any further growth of right-wing nationalist sentiment.3 As late as the 1960s, placards with a map of pre-war Germany divided into three parts-West Germany, East Germany, and the lands east of the Oder-Neisse line-were
TL;DR: In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import as discussed by the authors.
Abstract: In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how these cases fit together and what, together, these cases can tell us about the Supreme Court’s nascent theories of international law.
TL;DR: The United States occupation policy will not tolerate perjured testimony in a War Crimes Court, or any Court as discussed by the authors, and we do not want to subject an enemy national to an unfair trial only outrages the enemy and hinders the reconciliation necessary to a peaceful world.
Abstract: War Crimes Courts were established, not to right wrongs, as that is impossible, but to attempt to impose proper penalties upon proven wrongdoers. The evils of concentration camps and death marches cannot be dealt with by illegal methods. Our occupation policy will not tolerate perjured testimony in a War Crimes Court, or any Court. We do not want convictions at that price. To subject an enemy national to an unfair trial only outrages the enemy and hinders the reconciliation necessary to a peaceful world. We must insist that
TL;DR: In this article, the authors present a framework for assessing reform proposals that examines the ways in which states' decision-making processes interact with legal rules to cause certain uses of force to be undertaken while others are avoided.
Abstract: In light of several recent international legal and political crises, a wide spectrum of proposals has emerged to reform the rules of the United Nations Charter. These proposals range from broadening the right of states to use force in self-defense to allowing states to conduct humanitarian interventions without the approval of the Security Council. This article presents a framework for assessing such reform proposals that examines the ways in which states' decision-making processes interact with legal rules to cause certain uses of force to be undertaken while others are avoided. Using this framework, this article argues that, regardless of whether they are legally desirable, the most prevalent reform proposals are unlikely to alleviate the system's problems in a tangible way. Instead, the United Nations' member states must conduct a thorough analysis of how the organization can restructure itself to play a more productive role in ensuring international security. [T]he UN must undergo the most sweeping overhaul of its 60-year history. Kofi Annan 1 Why have this building? What is it all about? John Danforth 2 Associate, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C. The author thanks Professors Jane Stromseth, Sean D. Murphy, Eric Posner and Michael Glennon for their helpful comments and suggestions. 1. Kofi Annan, "In Larger Freedom ": Decision Time at the UN, 84 FOREIGN AFF. 63, 66 (2005) [hereinafter In Larger Freedom]. 2. Philip Gourevitch, Power Plays, NEW YORKER, Dec. 13, 2004, at 35 (reporting John Danforth's frustrations with the United Nations, which were expressed the day before he resigned as United States Ambassador to the United Nations). Published by Berkeley Law Scholarship Repository, 2006 BERKELEY JOURNAL OF INTERNATIONAL LAW