JournalTOCs

Pace International Law Review
Number of Followers: 8

This is an Open Access Journal

Open Access journal
ISSN (Print) 1553-7897
Published by Pace University

[5 journals]

Italy and the Aquarius: A Migrant Crisis
- Authors: Alexandra Larkin
  Abstract: Italian journalist Indro Montanelli once wrote, “[w]e Italians are tolerant and civil with all those who are different. Black, red, yellow. Especially when they are far away, at a telescopic distance from us.” In recent years, Italy had a resurgence of nationalist and far-right political leaders, who have taken an anti-immigration stance. Public interest in migration of refugees and asylum seekers is due both to media coverage of their stories and to litigation before international courts. One high-profile story that made headlines in the summer of 2018 was Italy’s treatment of the Aquarius, a rescue vessel operated by the German non-governmental organization SOS Méditerranée and Doctors Without Borders/Médecins Sans Frontières.
  PubDate: Thu, 19 Dec 2019 16:20:19 PST
Towards A New Generation in Central American Trade: Proposals for
Modernizing CAFTA-DR
- Authors: Julia E. Johnson
  Abstract: To the surprise of many, the Trump Administration has signaled its intent to renegotiate the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR). Why is the possible renegotiation of CAFTA-DR a surprise' CAFTA-DR has been largely favorable to the United States (U.S.)—the U.S. has enjoyed significant trade surpluses with CAFTA-DR countries since its ratification. CAFTA-DR has also promoted regional integration and co-production in Central America.Trade flows in and out of Central America have increased significantly. On balance, CAFTA-DR has benefitted all signatory nations from a trade standpoint, though it has left unaddressed a myriad of social, humanitarian, and governance issues. Consequently, as CAFTA-DR is renegotiated, U.S. policymakers can build upon these successes and also make sure to take particular care to shore up certain aspects that CAFTA-DR, in its current form, has fallen short. Of note, CAFTA-DR does not incentivize or mandate efforts to improve labor conditions in Central America, leaving millions of Central Americans facing sub-par working conditions and low pay. CAFTA-DR has also been inept to address environmental externalities associated with increased economic development, particularly in the manufacturing and natural resources sectors, which often pollute or cause environmental harms as part of their operations. Further, CAFTA-DR, like other regional trade agreements, has not fostered coalitions that were previously associated with multilateral trade agreements—preventing unification on key issues affecting trade flows, and preventing a cohesive response to social and environmental concerns.
  PubDate: Thu, 19 Dec 2019 16:20:17 PST
The International Law of Corporate Governance
- Authors: Ram Sachs
  Abstract: International economic agreements increasingly touch on fundamental principles of corporate governance. The trend contrasts with existing scholarship, which assumes corporate law evolves via domestic mechanisms. This Article introduces the EU-Japan Economic Partnership Agreement, with its dedicated chapter on corporate governance, as a case study. At the normative level, the emergence of corporate governance in international agreements represents a positive development by enabling countries to signal and put into action commitments for better governance. Given these recent developments, the field of comparative corporate governance should incorporate international agreements as an emerging source of law.
  PubDate: Thu, 19 Dec 2019 16:20:14 PST
Bringing the Bosses to International Criminal Trials: The Problems with
Joint Criminal Enterprise and the “Control over the Crime” Approach As
a Better Alternative
- Authors: Juan-Pablo Pérez-León-Acevedo
  Abstract: Similar to most international and hybrid criminal tribunals, the International Criminal Tribunal for the former Yugoslavia used the doctrine or theory of Joint Criminal Enterprise (JCE) as a mode of liability when prosecuting and convicting those most responsible, namely, state and non-state political and military leaders, in cases of international crimes. Against such background, the main research questions of this article are whether JCE should be applied in cases of those most responsible for international crimes and whether JCE should be replaced by the “control over the crime” approach. Overall, this article argues and finds two main points. First, JCE presents major issues when applied to cases involving senior leaders. Second, as done by the International Criminal Court, JCE should be replaced by the “control over the crime” approach since this approach is an overall more coherent alternative in the above-mentioned types of cases at international and hybrid criminal tribunals. Compared to JCE, the “control over the crime” approach as applied to cases involving senior perpetrators of international crimes: i) allows a clearer differentiation between principals and accessories to the crimes; and, ii) in its manifestation as perpetration through another person using an organized structure of power, is more suitable to appropriately determine criminal liability of those most responsible in large criminal enterprises.
  PubDate: Thu, 19 Dec 2019 16:20:11 PST
UDHR: Our North Star for Global Social Justice or an Imperial and
Settler-Colonial Tool to Limit our Conception of Freedom'
- Authors: Jeena Shah
  Abstract: On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.
  PubDate: Wed, 16 Oct 2019 21:55:49 PDT
Human Rights, Economic Justice and U.S. Exceptionalism
- Authors: Natasha Lycia Ora Bannan
  Abstract: On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.
  PubDate: Wed, 16 Oct 2019 21:55:44 PDT
Reclaiming Refugee Rights as Human Rights
- Authors: Roni Amit
  Abstract: On April 5, 2019, PILR held their triennial symposium titled: Revisiting Human Rights: The Universal Declaration at 70. As a reflection of the event, a few panelists composed contribution pieces reflecting on the topic.
  PubDate: Wed, 16 Oct 2019 21:55:39 PDT
Leahy—Sharpening the Blade
- Authors: Nandor F.R. Kiss
  Abstract: Over the course of the last 20 years, the Leahy Law has become one of the cornerstones of foreign and human rights policy. Yet, despite its largely unchallenged importance, field practitioners and other stakeholders have identified a number of substantive and practical deficiencies that greatly diminish the law’s ability to achieve the desired effect, and worse, may pose a risk to the United States’ interests. In reflecting on these deficiencies, and armed with decades of data and anecdotal evidence, this Article proposes adjustments focused on better aligning the law’s intent and effect. These recommendations range from semantic edits to substantive policy changes which may affect the way that Leahy operates in substantial ways. We should not fear revisiting the original intentions now that we have seen how the law operates. Like all things, the Leahy Law must be continually improved or it risks becoming an empty remnant of its former self. America needs to be a world leader in the area of human rights, but it requires functional tools in order to do so. Congress needs to sharpen the blade and it’s the author’s hope that, by implementing the changes presented in this Article, it can do just that.
  PubDate: Wed, 16 Oct 2019 21:55:35 PDT
The Fatal Leviathan: A Hayekian Perspective of Lex Mercatoria in Civil Law
Countries
- Authors: Fabio Núñez del Prado Ch.
  Abstract: Who should create default commercial rules' Should they be created in a constructivist way or should they be created rather through a spontaneous order' Should Kelsen’s positivism prevail in commercial law' Drawing on diverse libertarian literature, I will argue that, since courts do not play a dominant role in civil law countries and, more importantly, do not set precedents, default commercial rules should not be created by the legislator, but through the Lex Mercatoria.
  
  PubDate: Wed, 16 Oct 2019 21:55:30 PDT
Regulating through Trade: The Contestation and Recalibration of EU ‘Deep
and Comprehensive’ FTAs
- Authors: Billy Melo Araujo
  Abstract: Contemporary international trade politics is primarily focused on deep integration – that is, the removal of regulatory barriers to trade. The EU, in particular, has long been one of the main proponents of the use of trade agreements to promote regulatory disciplines on issues such as intellectual property regulation, procurement, services, competition and investment protection. This so-called ‘EU regulatory agenda’ has rapidly gathered pace over the past decade and culminated, more recently, in attempts to conclude mega-regional trade agreements such as the EU-US Transatlantic Trade and Investment Partnership. Such agreements have, however, proved highly contentious and are being fiercely contested - both because of their potential impact on the regulatory autonomy of the EU and its Member States, and their potential adverse effect on third countries and the multilateral trading system. This Article discusses the evolution of the EU regulatory agenda, the manner in which the agenda has been contested from a constitutional and policy perspective, and the extent to which the EU has (or has not) responded to such contestations.
  PubDate: Wed, 16 Oct 2019 21:55:25 PDT
Federalism: Necessary Legal Foundation for the Central Middle Eastern
States
- Authors: Issa Al-Aweel
  Abstract: The Central Middle East—comprising of Syria, Israel, Palestine, Lebanon, and Jordan—is in need of a legal foundation defined by a constitutional umbrella that governs it as a whole. This is a proposed broad structure of such legal foundation that serves regional legal and economic needs and includes recognition of human rights.The need for such restructuring is evident from the persistence of regional conflict and instability. Conflict and instability have been constants in the region in general and certainly in the listed five states. The issues include political instability, terrorism, continuous threats of fundamentalism, and pervasive disregard to human life and human rights. Israel has had strife with all the four neighboring peoples and states. Meanwhile, political instability either reigns or undermines each of these neighboring states. This article does not attempt to argue the correctness or fairness of what manifested in the first half of the 20th century; it does, however, argue that the political structure and how it continues to be is part of the reason for the conflicts and the instability.This Article presents federalism for the five states as the necessary political structure and legal foundation, as the one option that allows the five states to co-exist, to recognize human rights as we define them today, and to allow for economic and cultural growth. This Article also argues that such a structure must begin from within, with the support of the great and global powers including the United States and Russia.
  PubDate: Wed, 16 Oct 2019 21:55:20 PDT
Cashless Societies and the Rise of the Independent Cryptocurrencies: How
Governments Can Use Privacy Laws to Compete with Independent
Cryptocurrencies
- Authors: Matla Garcia Chavolla
  Abstract: Many individuals (including governments) envision living in a future world where physical currency is a thing of the past. Many countries have made great strides in their efforts to go cashless. At the same time, there is increasing awareness among citizens of the decreasing amount of privacy in their lives. The potential hazards cashless societies pose to financial privacy may incentivize citizens to hold some of their money in independent cryptocurrencies. This article argues that in order for governments in cashless societies to keep firm control over their money supply, they should enact stronger privacy law protections for its citizens in order to decrease the real or perceived loss of (financial) privacy. This paper compares the privacy laws that exist today in both the United States and the European Union and suggests combining elements of both legal systems in order create a more privacy-friendly legal framework that can enable governments to complete against independent cryptocurrencies.
  PubDate: Fri, 29 Mar 2019 14:24:28 PDT
Explaining China's Legal Flexibility: History and the Institutional
Imperative
- Authors: Justin W. Evans
  Abstract: China’s legal system appears to harbor a major tension, or even a paradox. Certainty in law facilitates economic progress, which most observers agree the Communist Party requires to maintain its power—yet the Party has opted for a flexible legal system that often impedes predictability. Prior studies explain China’s legal system as a product of certain constraints and as an expedient that allows for policy adjustments. These factors undoubtedly are at work but do not fully explain the rationale for a legal design seemingly at odds with the Party’s economic goals. To obtain a fuller view, it is necessary to consult the historical circumstances in which the designers of China’s legal system were embedded. This Paper argues that the Party’s reformers achieved a percipient historical insight: the Party would require an ongoing competitive advantage in institutional entrepreneurship to survive after Mao. Moreover, the reformers understood this competency to embody not only the substance of policy, but also, crucially, the Party’s institutional stewardship. Of its many advantages, flexible law reinforces the Party’s dominance in institutional entrepreneurship, enabling the Party to impede rival entrepreneurs without disrupting the broader economic frameworks in place. Institutions with strategic functions emerge and viewed thusly, the economic tradeoffs inherent in China’s flexible laws are not the paradox that they seem. The Paper briefly considers the implications of this historical context for multinationals’ strategies in China and for states’ strategic uses of flexibility in international legal institutions.
  PubDate: Fri, 29 Mar 2019 14:24:18 PDT
License to Kill: An Analysis of the Legality of Fully Autonomous Drones in
the Context of International Use of Force Law
- Authors: Andrew Figueroa
  Abstract: We live in a world of constant technological change; and with this change, comes unknown effects and consequences. This is even truer with weapons and warfare. Indeed, as the means and methods of warfare rapidly modify and transform, the effects and consequences on the laws of war are unknown. This Article addresses one such development in weapon and warfare technology—Fully Autonomous Weapons or “Killer Robots”—and discusses the inevitable use of these weapons within the current international law framework. Recognizing the current, inadequate legal framework, this Article proposes a regulation policy to mitigate the risks associated with Fully Autonomous Weapons. But the debate should not end here; States and the U.N. must work together to adopt a legal framework that coincides with the advancement of technology. This Article starts that discussion.
  PubDate: Fri, 29 Mar 2019 14:24:08 PDT
The Roots and Fruits of Good Faith in Domestic Court Practice
- Authors: Thomas Neumann
  Abstract: Good faith—most lawyers have an opinion on these two words. While the notion of good faith may play specific roles at domestic and regional levels, it remains an elusive siren at the international level. The concept was subject to controversy at the birth of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) and has been debated by scholars ever since. Considering that the Convention has now been in force for over thirty years, it is agreed that time is ripe for “a call to arms for further research into a uniform standard of good faith. This Article contributes to such further research as it unravels the life of good faith in court practice on a scale never before seen.
  PubDate: Fri, 29 Mar 2019 14:23:59 PDT
International Law of Nuclear Weapons Nonproliferation: Application to
Non-State Actors
- Authors: Imrana Iqbal
  Abstract: International legal responses to the threat of nuclear terrorism by non-state actors have been many but often inconsistent, inadequate, and legally unsound. This Article argues in favor of resorting to successfully-implemented methods of dealing with similar crimes. International law has already expanded from its original statist conceptions and scope to include individuals, such as in international human rights norms and international humanitarian laws. In the latter, in particular, the law has expanded in the context of both international and non-international armed conflict. This Article argues that the advancement of law in these areas can lend much to efforts to bring nuclear terrorism within the scope of International Criminal Court, from whose jurisdiction this crime is currently excluded. This Article also recommends purposefully elevating the prohibition against possession and use of nuclear weapons by non-state actors to jus cogens, making such acts international crimes of the type that do not necessarily require state consent for prosecution by an international tribunal.
  PubDate: Fri, 29 Mar 2019 14:23:50 PDT
Between Power Politics and International Economic Law: Asian Regionalism,
the Trans-Pacific Partnership and U.S.-China Trade Relations
- Authors: Jiangyu Wang
  Abstract: This Article examines the interactions of power politics and international economic law in the development of regionalism in Asia, particularly in the context of United States-China trade relations. It argues that the process of regional economic integration in Asia has been slow-moving because of the politicization of regionalism by power rivalries. China’s initial regional integration initiatives apparently ignored the United States, a superpower which has always been a major player in Asia and an indispensable part of the region’s economic process. The United States-led Trans-Pacific Partnership was allegedly designed to exclude China, Asia’s largest economy. On the other hand, the Trans-Pacific Partnership also spurred the effects of competitive liberalization, pushing China to deepen its economic reform domestically and engage its trading partners on friendlier terms at regional and international levels. The demise of the Trans-Pacific Partnership does not amount to the death of its cutting-edge rules. Those rules have laid a solid foundation for developing high-standard template agreements for Free Trade Agreements of the next generation, and many of them are likely to be incorporated into an upgraded multilateral trading system. United States’ withdrawal from the Trans-Pacific Partnership offers a golden opportunity for Asian countries to establish a real Pan-Asia free trade area through the negotiations for the Regional Comprehensive Economic Partnership, but in the long run, regional integration in Asia should look beyond Asia and include the economies of the American side of the Pacific for both economic and strategic reasons. The Article concludes with a few suggestions.
  PubDate: Tue, 21 Aug 2018 08:40:41 PDT
CISG Article 79: Exemption of Performance, and Adaptation of Contract
Through Interpretation of Reasonableness－Full of Sound And Fury, but
Signifying Something
- Authors: Yasutoshi Ishida
  Abstract: Article 79 of the CISG provides that “[a] party is not liable for a failure to perform any of his obligations” if the party has encountered a certain impediment defined therein. It was once depicted as “the Convention’s least successful part of the half-century of work.” It has been thirty years since the CISG took effect. However, the interpretation of Article 79 is as old and unsuccessful as ever. For one thing, it has long been interpreted against our intuition, not to exempt a party from specific performance claims. For another, the controversy has long continued unsettled over whether a party could be exempted in the so-called “hardship” cases. Lastly, where an event fundamentally alters the equilibrium of the contract because of the increased cost of performance, judges’ power to adapt the contract is urgently desired, but no reasonable basis in provisions of the CISG has been suggested.This article demonstrates that (1) Article 79 as a rule exempts a party from specific performance claims, (2) the so-called “hardship” cases are within the ambit of Article 79, and that (3) judges can adapt contracts through what this author terms a “reasonable expectation test.”
  PubDate: Tue, 21 Aug 2018 08:40:34 PDT
The Consideration of Male Victims of Sexual Violence as a Subset of the
Particular Social Group “Homosexual” in Adjudicating Asylum Claims
- Authors: Christiana Desrosiers
  Abstract: This Article analyzes the difficulties African male victims of sexual violence experience when seeking asylum in homophobic host countries and the lack of attention they receive from international and national governments and organizations. It concludes by recommending that male victims of sexual violence be able to seek asylum in host countries due to lack of medical care that they receive in their countries on account of imputed homosexual status.
  PubDate: Tue, 21 Aug 2018 08:40:28 PDT
Humanitarian Islam
- Authors: Engy Abdelkader
  Abstract: In the aftermath of mass shootings by violent extremists and amid increasing anti-Muslim prejudice and discrimination, many Muslim Americans have responded to these and other social, legal, and political developments with philanthropic initiatives inspired by orthodox Islamic teachings. This humanitarian impulse in Islam, which has shaped the religion since its founding, is relatively unknown to non-Muslim Americans. Humanitarian Islam is defined here in largely oppositional terms to so-called the “radical Islam.” In contrast to the violence, aggression, death, and destruction commonly associated with “radical Islam,” selfless volunteerism, benevolence, altruism, and charitable giving in service to others are characteristic of humanitarian Islam. This Article presents interdisciplinary research in its inquiry into humanitarian Islam and employs case studies to achieve a number of objectives. First, through the unique lens of philanthropy, it reveals the Muslim lived experience in contemporary America, from countering violent extremism to challenging discrimination. Second, it explores the minority faith community’s varied contributions in geographically diverse regions of the country. Third, this Article examines the communal relations that Muslim Americans have formed with non-Muslim Americans. Fourth, it illuminates the role, extent, and influence of Islamic faith beliefs and practices among Americans who are Muslims and a distinct perspective regarding Islam in America.
  PubDate: Tue, 21 Aug 2018 08:40:21 PDT