JournalTOCs

Boston College International & Comparative Law Review
Number of Followers: 13

This is an Open Access Journal

Open Access journal
ISSN (Print) 0277-5778
Published by Boston College

[8 journals]

Zuchtvieh-Export GmbH v. Stadt Kempten: The Tension Between Uniform,
Cross-Border Regulation and Territorial Sovereignty
- Authors: David Mahoney
  Abstract: In Zuchtvieh-Export GmbH v. Stadt Kempten, the European Court of Justice ruled that a European Council regulation that protects animal welfare during transport applies to the stages of a journey outside of the European Union (EU), if that journey commenced within the EU. This ruling by the European Court of Justice has been praised as it improves animal transport conditions outside of the EU. However, transport companies and governments outside of the EU are less welcoming of the ruling. The ruling highlights the difficulty in determining when and how such a regulation should be applied abroad. It also raises the broader question of striking a balance between efficient and uniform regulation across borders and maintaining territorial sovereignty. As a solution to the issues raised in Zuchtvieh-Export, this Comment suggests the use of bilateral international agreements, which would reduce conflict between nations by protecting territorial sovereignty.
  PubDate: Sat, 27 May 2017 10:50:49 PDT
The Legacy of Srebrenica: Potential Consequences of Reducing Liability for
Troop Contributing Countries in Modern UN Peacekeeping Operations
- Authors: Kelsey Gasseling
  Abstract: In 2014 the District Court of The Hague returned its decision in a case concerning peacekeeper (Dutchbat) wrongdoing during the 1995 massacre at Srebrenica, Bosnia-Herzegovina. The district court dismissed the UN as party to the suit, basing this decision on the organization’s statutory immunity from prosecution. As a basis for holding the Netherlands liable for Dutchbat’s actions, the district court utilized the effective control standard. This standard triggered liability for conduct undertaken either under direct order from Dutch officials, or in violation of the mission mandate. The district court strictly interpreted effective control, concluding the Netherlands was liable for conduct only insofar as it pertained to Dutchbat personnel who actively separated male Muslim refugees, who were later executed by the Bosnian Serbian Army. The decision reflected a commitment to limiting Member States’ liability so as to sustain enthusiastic troop contribution to peacekeeping. This policy could have negative repercussions as peacekeepers adopt increasingly complex responsibilities, especially in areas afflicted by terrorism. These missions frequently involve asymmetrical warfare, and some have become the most dangerous on record. Zealously encouraging Member States to deploy troops to areas under constant threat of unpredictable terrorist acts strongly calls into question the prudence of this policy.
  PubDate: Sat, 27 May 2017 10:50:46 PDT
Won’t Get Fooled Again: Why VW’s Emissions Deception Is Illegal in
Europe and How to Improve the EU’s Auto Regulatory System
- Authors: Kevin Tarsa
  Abstract: Replete with greed, hubris, and deceit, the Volkswagen emissions scandal is not your typical case of corporate wrongdoing. With a price tag of $20 million in the United States, it is already one of the most expensive corporate scandals in history and has caused significant damage to the environment, public health, and the global economy. Dieselgate has had a majorly disproportionate impact on Europe, where nearly nine million of the eleven million affected cars are located. The financial cost of the scandal, however, has been confined almost entirely to the United States, due to a European Union (EU) regulation that allows automakers to change their cars’ performance settings before emissions tests. This Note argues that this regulation, though considered a loophole by some, is not an escape hatch for European car manufacturers. Thus, it argues that Volkswagen’s use of defeat-device software violates EU law. With an eye toward preventing similar scandals in the future, it also recommends ways in which the EU can improve its auto regulatory system, and identifies the costs of allowing Volkswagen’s misconduct to go unpunished in Europe.
  PubDate: Sat, 27 May 2017 10:50:42 PDT
Base Erosion and Profit Shifting: How Corporations Use Transfer Pricing to
Avoid Taxation
- Authors: Gregory Pun
  Abstract: In an increasingly global economy, base erosion and profit shifting (BEPS) has allowed multinational corporations to utilize their subsidiaries to move assets and profits. As a result, corporations are able to lower their tax bills, but also deprive governments of integral tax funds, while leaving smaller competitors who pay their fair share of taxes at a disadvantage. To combat the effects of BEPS, the Organization for Economic Cooperation and Development (OECD) has collaborated with the Group of 20 (G20) major economies for the first time to implement an action plan. The BEPS Project seeks to ensure all corporations pay proper taxes to the government of each country in which they operate by addressing issues presented by transfer pricing and profit reporting. As the plan has been developed by the world’s major economies, difficulties arise for developing countries that may not have the resources to implement the plan successfully. Attempts to implement a universal rule face further difficulties given that an array of treaties addressing these issues already exist. To ease the transition, the BEPS Project utilizes safe harbors—sacrificing equity for efficiency in many instances. While the collaborative effort represents a major step forward, and the creation of the plan and first efforts to implement it are certainly beneficial, there is still a lot of work to be done. Questions remain regarding how to properly address BEPS and create a universally fair system for economies and corporations of all sizes.
  PubDate: Sat, 27 May 2017 10:50:38 PDT
Don’t Ask Me About My Business: The Mafia’s Exploitation of the
European Migration Crisis
- Authors: Natalie Cappellazzo
  Abstract: Old meets new as the Italian mafia capitalizes on the European migration crisis. Beginning with the coordination of Mediterranean voyages and ending with the indefinite exploitation of refugees at mafia-run migrant camps, the mafia has found an opportunity to profit from the crisis at every step of the way. With no end to the constant influx of refugees in sight, and verging on a humanitarian crisis within the camps’ walls, Italy faces a serious problem that requires a multifaceted solution. The Dublin regulations, which mandate registration and application for asylum in the first European Union country of entry, are in no small part tied to the situation in Italy. Not only does this system disproportionately burden border states and slow the asylum application process, it also traps refugees in procedural limbo and allows corrupt individuals and organizations to profit from their quandary. In dire need of change in light of the refugee crisis, reforming Dublin has the capacity to loosen the mafia’s financial stronghold on the plight of migrants while also safeguarding the fundamental human rights of refugees and giving them a better chance at the life they seek within Europe’s borders.
  PubDate: Sat, 27 May 2017 10:50:34 PDT
Democracy in Brazil: The Evolving Role of the Country’s Supreme
Court
- Authors: Dias Toffoli
  Abstract: The objective of this paper is to analyze the functions of the Brazilian Supreme Court and the need to attribute to a single specific entity the roles of guardian of the constitution, court of the federation, and moderator of political and social conflicts. It is also important to stress the relevance of the Brazilian Supreme Court as a criminal court, overseeing inquiries and criminal suits involving federal authorities entitled to the prerogative of privileged jurisdiction.
  PubDate: Sat, 27 May 2017 10:50:29 PDT
The Role of Federalism in International Law
- Authors: Edward L. Rubin
  Abstract: Because federalism grants partial autonomy to subunits of a nation, it has potentially broad implications for the prevailing system of international law, which is centered around the integrity of nation states. Military intervention in the internal affairs of a nation to protect human rights or combat terrorist activity might be regarded as more justifiable if the people being protected are members of a federalized subunit. Alternatively, foreign nations may feel more justified in establishing trade or cultural relations with a subunit of a nation, over objections by the nation’s government, if the subunit has federalized status. In other words, federalism can be viewed as modifying the principle of national sovereignty. This important possibility is largely unexplored in the international law literature. In recent years, a great deal of attention has been devoted to the implications of American federalism for the treaty powers of our national government and for the foreign relations powers of the state governments. While these questions refer to international law, they are basically domestic law inquiries about the relationship between state and national government. This article, in contrast, deals directly with federalism’s implications for relations between different nations. On the basis of a theory that treats federalism as a sub-optimal compromise for dealing with conflicts of political identity, the article concludes that federalism does not justify increased levels of intervention, nor does it permit foreign nations to establish relations with subunits in violation of national policy. But the article does recognize an important role for federalism in international relations. One nation should not intervene by force in another nation unless it has some reason to believe its intervention can be effective in solving the problem that provided the basis for the intervention. In a number of cases, federalism may be such a solution. In addition, while nations should not establish trade or cultural relations with subunits in violation of national policy, federalism creates a presumption that certain relations are acceptable to the national government, and thus requires the national government of a federal regime to be more explicit in prohibiting such relations than the government of a unitary regime would need to be.
  PubDate: Sat, 27 May 2017 10:50:25 PDT
Hastening Harmonization in European Union Patent Law Through a Preliminary
Reference Power
- Authors: Joseph Kenneth Yarsky
  Abstract: The European Union has struggled for decades to establish a streamlined method of uniform patent protection. Its current solution involves both a European Patent of Unitary Effect and the implementation of the Unified Patent Court to adjudicate patent claims. The current proposal, however, does not eliminate the two other routes to patent protection that currently exist: national patent grants and classical European patents. The existence of three possible routes to patent protection could lead to increased fragmentation in the way patents are interpreted across the European Union. Creating a more unified system entails both ensuring that the substantive patent law contained in the Unified Patent Court Agreement is binding on member states, and giving the newly formed Unified Patent Court a preliminary reference power to interpret the substantive provisions of the Unified Patent Court Agreement.
  PubDate: Fri, 21 Apr 2017 08:48:45 PDT
All the News That’s Worth the Risk: Improving Protection for Freelance
Journalists in War Zones
- Authors: Lindsay R. Grossman
  Abstract: Although war journalism has existed for centuries, changes in the nature of armed conflict and its coverage have put the danger for modern journalists at an all time high. The traditional war correspondent has been replaced in recent years by the independent freelance journalist. While the former receives the full protection and financial backing of his respective news organization and the American military, the latter works on his own, often living in dangerous war zones with little or no training, insurance, or equipment. This new mode of journalism has proved especially dangerous in the current conflict in Syria, where terrorist organizations such as the Islamic State intentionally capture journalists for use as propaganda pieces and bargaining chips. The U.S. government and news organizations worldwide have issued policies and entered into agreements aimed at offering better protection to journalists reporting from dangerous conflict zones. Recently, many voices have advocated for legislative amendments to the Geneva Convention that would establish new protections such as a press emblem or a special status. This will not solve the problem, however, as the major players in current conflicts systematically ignore codified law. The most feasible action to mitigate danger and reduce targeted attacks against journalists is to put an end to the impunity that has allowed the Islamic State and other violent military groups to carry out these acts unprosecuted.
  PubDate: Fri, 21 Apr 2017 08:48:41 PDT
A Long-Awaited Reboot: The FIFA Scandal and its Repercussions for
Football’s Governing Body
- Authors: Matthew B. DiCenso
  Abstract: On May 21, 2015, Swiss authorities raided the annual congressional meeting of the Fédération Internationale de Football Association, ultimately arresting seven FIFA executives on charges of corruption. The product of a three-year Federal Bureau of Investigation case, the Swiss raid and accompanying Department of Justice indictment was the first step in addressing what authorities describe as enduring and systemic corruption within football’s governing body. In addition to casting a shadow over the world’s most beloved sport, the FIFA scandal highlighted the international organization’s lack of accountability and, most notably, its dire need for change. Although the February 2016 reform package addressed many of FIFA’s problems, more must be done to ensure that history does not repeat itself.
  PubDate: Fri, 21 Apr 2017 08:48:35 PDT
Integrating Indigenous Rights into Multilateral Environmental Agreements:
The International Whaling Commission and Aboriginal Subsistence Whaling
- Authors: Chris Wold
  Abstract: Although the international community has addressed whether environmental harm violates human rights norms, only recently has it asked whether international organizations must implement those norms. That changed when Greenland posited that the International Whaling Commission (IWC) has a duty to implement aboriginal subsistence whaling (ASW) in light of customary international human rights norms, including the rights to cultural identity and resources. This article explains why international organizations have an obligation to implement customary international human rights law. Implementation, however, may be challenging because the content of some rights is not clear. In addition, these rights are not absolute. Actions may interfere with human rights provided they can be reasonably and objectively justified, as the United Nations Human Rights Committee has concluded, or are necessary, legitimate, and proportional, as the Inter-American Court of Human Rights has stated. The article concludes that the IWC’s ASW management regime interferes with certain customary international human rights, but that it can be reasonably and objectively justified or is necessary, legitimate, and proportional. Nonetheless, the IWC could strengthen implementation of human rights by, for example, clearly articulating criteria for preparing and evaluating “need statements”—the statements submitted to support an ASW quota.
  PubDate: Fri, 21 Apr 2017 08:48:30 PDT
Targeted Killings—Never Not an Act of International Criminal Law
Enforcement
- Authors: Barry Kellman
  Abstract: Defenders of targeted killings proffer a straightforward elaboration of military necessity in the context of modern technological capabilities and conclude that killing members of terrorist organizations is legal under international law. In this essay, I assert that targeted killings to combat terrorist threats should not be governed predominantly by the law of war but should be synthesized with widely recognized principles of international criminal justice. Targeted killings are now the only aspect of counter-terrorism policy that operates outside constraints of criminal justice and beyond judicial review. That many people are being killed without anything like due process of law undermines the pursuit of strategies to strengthen law enforcement’s role in global counter-terrorism. A targeted killing is never not an act of criminal law enforcement and therefore must be governed by a foundational commitment to the primacy of criminal justice in defeating threats of terrorism.
  PubDate: Fri, 21 Apr 2017 08:48:26 PDT
Sovereignty and Social Change in the Wake of India’s Recent Sodomy
Cases
- Authors: Deepa Das Acevedo
  Abstract: American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned to its glory days of heroic judicial intervention. Perhaps no pair of cases so nicely captures this dichotomy as the 2009 decision in Naz Foundation v. Government of NCT of Delhi, which decriminalized sodomy, and the 2012 decision in Koushal v. Naz Foundation, which overruled Naz. This paper uses public interest litigation and India’s recent sodomy cases to demonstrate that the relationship between state actors and citizens is often far less stable than the democratic ideal of “citizen sovereignty” would suggest. I argue, first, that supporters of public interest litigation should neither give up on PIL suits as a means of effecting social reform nor imagine that PIL suits can ever reliably produce desirable outcomes. As a type of legal action, public interest litigation simply cannot be reverse engineered in this way. But second, I show why this unreliability is not as worrisome as it might first appear to be, by analyzing the well-documented and widely critiqued shift in PIL cases at the end of the twentieth century. While earlier PIL cases reflect the Indian Constitution’s commitment to government-led social reform and the sharing of sovereignty between citizens and the state, contemporary PIL cases reflect the Constitution’s commitment to an agency theory of sovereignty whereby government merely acts on behalf of citizens. Neither vision of sovereignty is paramount over the long run, and shifts in public interest litigation reflect the productive and dynamic equilibrium between the two.
  PubDate: Fri, 21 Apr 2017 08:48:21 PDT
O'Keeffe v. Ireland: The State's Obligation to Protect Children
from Sexual Assault in State Schools
- Authors: Heekyoung Lee
  Abstract: Ireland’s unique primary education system creates a national school system that is denominational, yet state-financed. The Irish government defers managerial duties to the Catholic Church, and this deference of duties relieves Ireland from liability. As a result, students in Ireland attending primary schools historically were not guaranteed legal protection from sexual assaults committed by faculty members. On January 28, 2014, the Grand Chamber of the European Court of Human Rights held in O’Keeffe v. Ireland that despite Ireland’s delegation of authority to religious denominations, the State was obligated to protect students from sexual assaults. The court reasoned that the State had an obligation to guarantee Article 3 fundamental rights, because no one, especially vulnerable children in primary education, should be subject to inhuman treatment. The court also noted that such an obligation could not be absolved through the delegation of powers. This Comment examines the court’s reasoning and argues that its decision leaves unanswered the scope of interpretation in future cases of abuse.
  PubDate: Wed, 19 Apr 2017 09:04:01 PDT
Prioritizing National Security at the Expense of Refugee Rights: The
Effects of H.T. v. Land Baden-Württenberg
- Authors: Thomas F. Lampert
  Abstract: Tensions are high in member states of the European Union as they struggle to accommodate a record number of refugees while simultaneously confronting seemingly regular terrorist attacks. In response to this crisis, the European Court of Justice’s decision in H.T. v. Land Baden-Württenberg continued a trend that began after September 11, 2001, in which countries implement policies that diminish and threaten the rights of refugees. Specifically, the European Court of Justice ruled that legislation governing the distribution of residence permits to refugees impliedly allowed for the revocation of a residence permit from a refugee accused of terrorist activities. This decision weakens international custom prohibiting the expulsion of refugees to places where they may be in danger. While the court implemented safeguards, including a requirement that the refugee engage in more than cursory support for terrorist organizations, the decision is still another step in an alarming trend that places refugees at risk.
  PubDate: Wed, 19 Apr 2017 09:03:56 PDT
Unsafe Harbor: The European Union's Demand for Heightened Data
Privacy Standards in Schrems v. Irish Data Protection Commissioner
- Authors: Christina Lam
  Abstract: In 1995, the European Union adopted the Data Protection Directive to govern the processing, use, and exchange of personal data. The United States refused to enact similar legislation, consequently jeopardizing ongoing and future data transfers with the European Union. To prevent economic catastrophe, the United States negotiated with the European Union to reach the Safe Harbor Agreement and, on July 26, 2000, the European Commission formally recognized the agreement as compliant with the Data Protection Directive in its Safe Harbor Decision. In 2013, U.S. data protection standards were once again placed under the microscope when Edward Snowden leaked information regarding the National Security Agency’s surveillance activities. In the wake of these leaks, Maximillian Schrems filed a complaint with the Irish Data Protection Commissioner, claiming that Facebook was not adequately protecting his personal data from National Security Agency surveillance when transferring it from its European Union servers to its U.S. servers. On October 6, 2015, the European Court of Justice invalidated the Safe Harbor Decision in Schrems v. Irish Data Protection Commissioner. This Comment examines the court’s reasoning and argues that the court erred in interpreting Article 25 of the Data Protection Directive and overstepped jurisdictional boundaries.
  PubDate: Wed, 19 Apr 2017 09:03:51 PDT
Withdrawing a License to Kill: Why American Law Should Jettison “Stand
Your Ground” and Adopt the English Approach to Retreat
- Authors: Franklin Stockdale
  Abstract: The justification of self-defense generally allows the use of a reasonable amount of force when a victim of an attack has a reasonable belief that the use of force is necessary in order to prevent an imminent harm. For centuries, the justification of self-defense included a duty of the victim—or defendant—to retreat before resorting to force. Today in the United States, this duty has been eliminated entirely in many jurisdictions. In England, however, the duty has not been done away with but has, instead, been incorporated into the reasonableness aspect of self-defense, which evaluates whether the amount of force used by the defendant was reasonable and whether the defendant’s belief of an imminent harm was reasonable. The English version, therefore, allows the use of force even when retreat is possible but only when it can be shown that it was reasonable not to retreat. U.S. jurisdictions should undo the outright abandonment of the duty to retreat and adopt the English adjustment because it is better suited to both to gun culture in the United States and to the protection of human life.
  PubDate: Fri, 12 Aug 2016 11:21:03 PDT
Too Big to Nail: How Investor-State Arbitration Lacks an Appropriate
Execution Mechanism for the Largest Awards
- Authors: Jacob A. Kuipers
  Abstract: Typically, when an international arbitration tribunal renders an award, it includes a specific date by which the defendants must pay the award. If the defendants refuse to pay the award by the mandated deadline and the defendants are not seeking that the award be set aside, then the claimants have the ability to seize assets of the defendants through national courts that could enforce the tribunal’s judgment. Those courts may issue orders to seize a party’s assets in their jurisdiction as a way to enforce all or part of the tribunal’s award. This presents an uphill battle for the claimants, particularly if the defendant is a sovereign entity. States have sovereign-immunity laws that prevent their national courts from seizing most assets of another state, except for those assets largely used for a commercial purpose. Although seizing such assets is possible and has been done, it is a costly and time-consuming process. As the size of the award increases, the costs and time required to seize assets increase exponentially. And when awards become especially massive, it becomes particularly difficult for the claimant to seize assets that would be valued anywhere near the award amount. The degree of difficulty becomes so large that it might not even be worth attempting to seize the defendant’s assets. Arbitration panels are likely to face more and more disputes involving higher and higher awards. Project-finance transactions and public-private partnerships, which have capital costs in the hundreds of billions of dollars, are becoming increasingly popular as investment mechanisms, particularly in developing countries. Nearly all these transactions use international arbitration in their contracts. Disputes that arise from these transactions could result in massive awards on a sizable scale. Barring adopting new investment treaties, states could be prevented from engaging in recalcitrant behavior by having the international community develop additional incentives to motivate states to comply with large awards rendered against them. This includes better involvement of multinational organizations—to put additional pressure on the state—and the private sector—to determine the best entity to execute the award against the state.
  PubDate: Fri, 12 Aug 2016 11:21:00 PDT