Showing papers in "The Pace International Law Review in 2014"

A Contextualized Account of General Principles of International Law

Abstract: This Article examines general principles of international law through the innovative means of comparing their use in four different, novel areas of international law—international environmental law, international investment law, international criminal law, and international indigenous rights. By doing so, the Article is able to make the distinct claim that there is no one, single methodology for analysis of general principles of international law. Rather, each area of international law tends to use a methodology suited to its policy objectives and overall characteristics as a specific area of law. The Article characterizes two predominant academic approaches to general principles: a purely “domestic approach” and a “hybrid approach”. The Article argues that international environmental law has tended to use a hybrid approach, whereas international in±Portions of this paper have been presented at the Cambridge Conference on Interpretation in International Law at the Lauterpacht Centre / Cambridge Faculty of Law in August 2013 and at the Canadian Council of International Law (CCIL) Annual Meeting in November 2013. We are grateful for comments on those occasions from individuals who included Natasha Affolder, Phillip Allott, John Martin-Gillroy, Joanna Harrington, Gleider Hernandez, Gary Luton, John Morss, Daniel Peat, Sara Seck, John Tasioulas, and Rumiana Yatova. We are also especially grateful to Ibironke OdumosuAyanu for her thorough read of and commentary on the draft Article. * Michelle Biddulph, research assistant to Professor Newman, holds a B.A. (Saskatchewan) and will complete her J.D. (Saskatchewan) in 2014. She has also studied at the Hague Academy of International Law. She will be clerking at the Saskatchewan Court of Appeal in 2014-15. ** Dwight Newman, B.A. (Regina), J.D. (Saskatchewan), B.C.L., M.Phil., D.Phil. (Oxford) is Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan. He has previously taught during shorter terms at McGill University and Oxford University and has been an academic visitor at the University of the Witwatersrand. He is a member of the Ontario and Saskatchewan bars.

Gender Quotas for Corporate Boards: Options for Legal Design in the United States

Abstract: Recently, U.S. activists, scholars, and policy makers have turned their attention to a notable effort to address the large gender gap in top business management: gender quotas for corporate boards of directors. Gender quotas for corporate boards represent an intriguing option, even if the empirical case for quotas is not airtight. Still, gender quotas may seem a cultural and legal oddity in the United States, a European transplant unlikely to take root here. Even if a quota could survive constitutional scrutiny, gender quotas for corporate boards seem to represent the kind of intrusive state regulation of business that our nation’s laissez faire ideology seems to reject. American ideals of free markets, investor choice, and employment at will sit uneasily, to put it mildly, with the notion that the state should dictate to investors the gender of the decisionmakers entrusted with the management of their money.But a closer look at U.S. institutions reveals that the cultural and legal mismatch is not as severe as it may first appear. Gender quotas designed with sensitivity to exceptional U.S. institutions could fit comfortably with U.S. legal institutions. For instance, the federal tax code and securities law may offer stronger vehicles for implementation of a mandatory or voluntary effort than state corporate law. To take another example, the prominence of nonprofits in health care and education should prompt us to consider carefully whether some (or all) nonprofits should be subject to quotas as well and how nonprofits might be integrated into tax-based initiatives. Finally, thoughtful transition policies could address concerns about the scarcity of women in the pool of qualified director candidates.

Norway’s Companies Act: A 10-Year Look at Gender Equality

Abstract: This analysis assesses the amendment to Norway’s Companies Act, in light of the 10-year anniversary of the mandate of female representation on corporate boards. First, I discuss the implementation of the quota, Section 6-11a. Second, I compare three statistical studies that analyze the effects of the quota on corporate profitability, overall firm performance, and the changing dynamics of the managerial positions. Finally, I evaluate the various avenues to fully achieving diversity, such as the successes and failures of a quota-type system and possible initiatives that governments and companies can enact to achieve gender-balance in the workplace. While some hypothesize that the quota negatively affects overall firm capability and value, the statistical data on the effects of the legislation is not dispositive. Ultimately, it is in the best interest of corporations to learn from Norway’s example in implementing mandatory female representation, and to explore other avenues to achieving diversity. I. BACKGROUND ON NORWAY’S COMPANIES ACT “Power is not something that is given, it is something that you have to take.” 1 A Danish economist, Benja Stig-Fagerland, * Kristen Carroll received her J.D. cum laude with an International Law Certificate from Pace Law School in 2014. Upon graduation she was a recipient of the Adolf Homburger Humanitarian Award, and served as Editor-inChief of Pace International Law Review and Co-Chair of the Moot Court Honor Board in 2013-2014. 1 Nicola Clark, The Female Factor: Getting Women into Boardrooms, by

Justice or Peace? A Proposal for Resolving the Dilemma

Abstract: Those who commit gross human rights violations have historically not been held accountable for their actions. That is no longer the case. The modern trend is to prosecute individuals who commit human rights atrocities. As the United Nations Secretary General Ban Ki-moon has stated, international law has evolved from an "old era of impunity" to a "new age of accountability." Most international scholars would support this trend. However, the prospect of criminal prosecution may cause human rights violators to to be more reluctant to give up power and agree to any peaceful resolution of a conflict. This article makes the case that a one size fits all approach which mandates criminal accountability in each and every instance in which human rights have been violated may actually make it more difficult in some situations to achieve peace. Therefore, a more flexible approach is required. This article suggests that in some circumstances, the international community should be able to forgo prosecutions if the U.N Security Council determines that the prospect of criminal prosecution may hinder the peaceful resolution of a conflict. This article proposes that the Security Council be given the authority to grant amnesty to human rights violators if it decides that is what is necessary in order to restore international peace and security.