Showing papers in "ILSA Journal of International and Comparative Law in 2005"

When Is a War Not a War? The Myth of the Global War on Terror

Abstract: It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush's "war on terror" finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and other interests, it avoids elevating terrorists to the status of combatants in a war with the world's only superpower.

Cultural Relativism In International War Crimes Prosecutions: The International Criminal Tribunal For Rwanda

Abstract: The tension between universalism and cultural relativism lies at the heart of war crimes and war crimes prosecutions. While cultural relativism arguments should never be the basis for ignoring war crimes outside of the West (particularly in Africa), neither should the international community adopt a radical universalist approach that ignores the unique circumstances underlying each war crimes prosecution. The establishment of the ICTR, over the objection of the post-genocide Rwandan government, probably erred on the side of universalism by ignoring the legitimate needs of the Rwandan people. Nevertheless, the ICTR has appropriately adopted a “mild” cultural relativist approach in its proceedings, by considering cultural differences when evaluating witness testimony, interpreting the definition of certain crimes within the context of the Rwandan experience, and considering Rwandan sentencing practices when sentencing defendants. Future international tribunals should learn from the ICTR experience and consider cultural differences as necessary to do justice in the communities they are designed to serve.

Are WTO Violations Also Contrary To The Fair And Equitable Treatment Obligations In Investor Protection Agreements

Abstract: Bilateral investment treaties typically require the host state to ensure \"fair and equitable\" treatment to the investors of the other state. While decisions concerning fair and equitable treatment are often fact specific, three pending NAFTA Chapter 11 arbitrations raise a novel legal variant of the following issue: Is the breach of a WTO obligation that results in harm to a foreign investor a denial of fair and equitable treatment?' In Methanex v. United States, the investor argues that certain WTO agreements require that \"governmental measures cannot restrict trade any more than necessary to achieve a legitimate state objective.\"2 Methanex goes on to argue that this \"least restrictive\" principle as embodied in the WTO Agreements is widely followed among civilized nations, and thus constitutes a part of 'customary' 'international law' 3 Finally, Methanex argues that the failure of California to apply the \"least restrictive\" principle in banning a gasoline additive was a denial of fair and equitable treatment in violation of NAFTA Article 1105. 4 A slightly different argument is advanced in Canfor Corporation v. United States, where the claimant contends that U.S. officials acted arbitrarily in failing to follow WTO rulings concerning the calculation of dumping and countervailing duties and that such action was a denial of fair and equitable treatment.5 In Kenex v. United States, the investor claims that the respondent failed to

A Bill Of Rights For The European Union

Abstract: The inclusion of the Charter of Fundamental Rights' in the Draft Treaty Establishing a Constitution for Europe2 has a curious history that in some ways is similar to the history of the Bill of Rights of the United States Constitution. The Draft Constitution for the European Union, signed on October 29, 2004 in Brussels by the member states, was the product of a Convention that commenced its work on February 28, 2002 and completed its drafting process on July 10, 2003. The first European Convention drafted the Charter of Fundamental Rights proclaimed at Nice in 2000. The mandate of the second Convention was to simplify the constituent treaties, to increase the democratic legitimacy, transparency and efficiency of the European Union institutions, and to consider the unification of the treaties into a basic treaty, including the Charter of Fundamental Rights. While incorporation of the Charter will have little immediate substantive impact, it is an important symbolic step for the European Union. Neither the United States Constitution as originally adopted, nor the Treaty on European Union (also referred to as the Treaty of Rome)4 establishing the European Economic Community and the subsequent constituent treaties contain what can be considered a Bill of Rights. This omission in these documents can be attributed to similar causes relating to the perceived limited power or competence of the central authority. The United States Constitution was intended to set forth a plan of governance for the new nation in which the central government was to act pursuant to specific enumerated powers set out in the Constitution. Human

The Use Of Non-Domestic Courts For Obtaining Domestic Relief: Jurisdictional Conflicts Between NAFTA Tribunals And U.S. Courts?

Abstract: I. DEFINITION OF JURISDICTIONAL CONFLICT ..................... 331 II. NAFTA CASE LAW ..................................... 332 A. The Mondev Case ................................... 333 B. The Loewen Case ................................... 333 C. Inconsistent Rulings? ................................ 334 III. THE POSITION UNDER GENERAL INTERNATIONAL LAW .......... 335 A. Attribution ........................................ 335 B. Exhaustion of Local Remedies ......................... 335 C. Diversity of Nationality .............................. 336 IV. EVALUATION OF NAFTA CASE LAW ......................... 337 V. DISTINGUISHING THE FORK-IN-THE-ROAD PROBLEM ............ 340 VI. CONCLUSION ........................................... 341

Revisiting The Challenginf Landscape Of Self-Determination Within The Context Of Nation's Right To Sovereignty

Abstract: Academic perspectives on the issue of Self-Determination are in abundance as the International Standards with respect to the Rights of People and their Rights to Self-Determination have taken huge steps in the last two decades. This has resulted in a large number of a secessionist movements, claiming various forms of Self-Determination, in today's geo-political landscape. Furthermore, when these movements of Self-Determination embrace terrorism as their only act of expression, we find ourselves immersed in a quagmire hitherto seen in the World stage. Against this challenging backdrop, we will

The Extraterritorial Application Of Antitrust Laws

Abstract: Chief Justice Marshall articulated this fundamental canon of U.S. statutory construction, reflective of customary international law, in 1804 in Murray v. Schooner Charming Betsy, an admiralty case commonly referred to as the \"Charming Betsy\" case. As the foreign government representative on this panel, I would like to provide an extraterritorial perspective on the extraterritorial application of domestic law following the Charming Betsy principle.

Can Legalism Be Exported? U.S. Rule Of Law Work In Arab Societies And Authoritarian Politics

Abstract: I am pleased to be part of this panel devoted to the Middle East and of this year's rich program at International Law Weekend. I have decided not to speak directly about Arab human rights today, despite the title of my panel. I believe you will agree with this decision, given that most of what I have to say about the recent context of human rights in Arab countries is pessimistic. The post September 11, 2001 context has allowed political systems in the Middle East to use deterring terrorism as an excuse to clamp down on human rights to a worrying extent. I shall talk a little about human rights in Arab countries, but mostly as an example of a broader argument I would like to present to you about law and politics in the Middle East. I would like to discuss instead a general issue that has been of interest to me since fieldwork I did as a Fulbright Scholar in Morocco in the early 1990s. At that time, I was visiting the uncle of a Moroccan professor friend of mine in a quintessentially rural village in a really remote region of the country. This is the sort of place that took hours to get to by bus from the nearest large town, and had the electricity and running water cut off for hours every day. There I was having tea with a man in an unheated living room with no electricity and far away in space and time from think tanks in Cairo or Washington. Then we started to talk about politics. My host astonished me by stating bluntly that \"the real problem in our local and national politics is instilling popular respect for the rule of law.\" As the lights occasionally flickered on and our tea was refreshed,

Derecho De La Competencia Y ejercico De Las Profesiones

Abstract: 1. PROFESIONES Y COMPETENCIA: TRADICION Y MODERNIDADTRADICI6N REGULADORA VERSUS TENDENCIA LIBERALIZADORA ............................................................................... 730 II. TRANSFORMACIONES EN EL EJERCICIO DE LAS PRO FESIO NES .................................................................................... 732 A. Concepto deprofesi6n ................................................................ 732 1. Paradigma tradicional de profesi6n .................................... 732 2. Crisis del paradigma tradicional ......................................... 734 B. Regulaci6n de las profesiones .................................................... 737 1. Regulaci6n y restricciones a la competencia ...................... 737 2. Tendencia hacia la desregulaci6n .................. 741 1II. EVOLUCION EN EL AMBITO INTERNACIONAL .................................... 742 A. Organizaciones supranacionales ............................................... 742 1. Organizaci6n para la Cooperaci6n y el Desarrollo Econ6mico (OCDE) ........................................ 742 2. Organizaci6n Mundial del Comercio (OMC) ..................... 745 3. Comunidad Europea ........................................................... 747 a. Libertad de circulaci6n de los profesionales ................... 748 b. Aplicaci6n del derecho de la competencia ..................... 755 B. D erecho comparado .................................................... .............. 765 1. Los Estados Unidos ........................... 765 2. El R eino U nido ................................................................... 770 3 . Italia .................................................................................... 77 5 4. E spafia ................................................................................ 782 IV. REVISION CRiTICA DE LA REGULACION DE LAS PROFESION ES .................................................................................... 786 A. Racionalidad econ6mica de la regulaci6n de las p rofesiones ................................................................................. 787 1. Fallos del mercado de los servicios profesionales .............. 787 a. Asimetrias de la informaci6n ......................................... 788 b. Extem alidades ............................................................... 789