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]

Fish Don't Litter in Your House: Is International Law the Solution to
the Plastic Pollution Problem'
- Authors: Taylor G. Keselica
  Abstract: This article addresses the complex issue of plastic pollution—focusing on ocean plastics. Specifically, this article examines the ocean plastics problem, critiques current binding and non-binding international environmental law surrounding ocean plastics, hazardous wastes, and pollution, and proposes a more effective solution to the ocean plastics problem. Section I provides a basic history of the creation of plastics and discusses plastics as they are used today. Section II considers the concerns surrounding ocean plastics, focusing on impacts of plastic on marine ecosystems as well as human health effects. Section III, IV, and V discuss the ongoing attempts to address the ocean plastics problem. Sections III and IV provide a brief overview of individualized and domestic attempts at addressing the ocean plastics problem, while Section V discusses attempts at addressing the problem at a global level. Section V specifically discusses the United Nations Convention on the Law of the Sea, the Basel Convention, and the United Nations resolutions on marine plastics and microplastics in marine environments. Section VI proposes a solution to the issue of ocean plastics: a binding international treaty requiring all parties to take measures to address the ocean plastics problem by mandating the phasing out of all plastics with timetables for compliance; mandating consumption habits; directing countries to focus on alternative renewable resources; and requiring countries to repurpose recycling facilities. Section VI also proposes the treaty include: a clean-up fund; incentives for countries who ratify the treaty, in accordance with the General Agreement on Tariffs and Trade; the principle of common but differentiated responsibilities; the precautionary principle; and strict enforcement mechanisms for noncompliance. Finally, Section VII summarizes the main points of this article regarding the necessity of a plastics treaty.
  PubDate: Sun, 27 Dec 2020 17:02:35 PST
Right to Health in GATS: Can the Public Health Exception Pave the Way for
Complementarity'
- Authors: Swati Gola
  Abstract: This paper demonstrates how a right to health approach in the interpretation of the public health exception outlined in GATS Article XIV(b) can bring about a harmonious application of international human rights and international trade law regimes. Focusing on the interpretive value of the right to health for the public health exception in GATS, it examines whether a WTO Member, who has committed itself under GATS to fully liberalize all service sectors that have implications for health (e.g., hospital and other healthcare services), still retains the regulatory space to undertake measures to fulfill their right to health obligations and can justify a public health measure as incompatible with GATS obligations when undertaken to fulfill its right to health obligation. This paper argues that a right to health approach to an interpretation of the public health exception in GATS can bring complementarity between international human rights and international trade law regimes. A good faith and harmonious interpretation of the public health exception in GATS, taking into account the right to health, further advances systemic integration and responds to the challenge of fragmentation of public international law.
  PubDate: Sun, 27 Dec 2020 17:02:30 PST
An Australian Conundrum: Genomic Technology, Data, and the COVIDSafe App
- Authors: David Morrison et al.
  Abstract: This paper examines the difficulties that have arisen in Australia in the use of its contact-tracing app. We examine the privacy implications around the use of the app, the wider economic imperative, and the balancing of those concerns against the health threat of the COVID-19 pandemic. We posit that default options are superior in times of emergency and rather than begging for the adoption of lifesaving technology, we suggest that the evidence gathered by behavioral economists provides an apposite and powerful alternative worthy of consideration.
  PubDate: Sun, 27 Dec 2020 17:02:25 PST
The Rise of Transnational Commercial Courts: The Astana International
Financial Centre Court
- Authors: Ilias Bantekas
  Abstract: The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while at the same time being subject to several limitations that jeopardize its independence. As companies in the AIFC continue to grow in size and assets, the AIFC Court will inevitably become one of the key dispute resolution institutions in Asia over the next decade.
  PubDate: Sun, 27 Dec 2020 17:02:19 PST
International and Foreign Legal Research Resources at the Law Library of
Congress
- Authors: Mark E. Wojcik
  Abstract: The material that follows summarizes the proceedings held in January 2020 at the Annual Meeting of the Association of American Law Schools (AALS). The panel on “International and Foreign Legal Research Resources at the Law Library of Congress” was organized by the AALS Section on International Law and co-sponsored by the AALS Section on Comparative Law. The moderator was Professor Mark E. Wojcik of the UIC John Marshall Law School, the immediate past Chair of the ABA Standing Committee on the Law Library of Congress and 2020-21 Chair of the AALS Section on International Law. Also serving as moderator was Professor Don S. De Amicis of Georgetown Law. The speakers were Barbara Bavis, Legal Reference Librarian at the Law Library of Congress, and Peter Roudik, Director of the Global Legal Research Center at the Law Library of Congress. In the audience participation section, extended comments were also made by Dean Katharina Boele-Woelki, Dean of the Bucerius Law School in Hamburg, Germany, and the Claussen-Simon-Foundation Chair for Comparative Law at that school. The material here is not a one-stop shop for understanding the full range of resources available from the world’s largest law library, but it should provide an enticing introduction to the collections and services available. For practitioners, judges, legislators, professors, law students, and other legal researchers, the Law Library of Congress is a gem hidden in plain sight, waiting to be discovered.
  PubDate: Wed, 29 Apr 2020 15:31:57 PDT
Forgetting the Right to be Forgotten: The Everlasting Negative
Implications of a Right to be Dereferenced on Global Freedom in the Wake
of Google v. CNIL
- Authors: Hunter Criscione
  Abstract: The internet is the center of global communication, culture, and education. As of January 2019, Western Europe is second only to North America and Northern Europe in internet penetration (a statistic that measures the availability of internet in a given geographical place), with data reporting that 94 percent of Western Europeans have access to the internet. The same study reported that 50 percent of the global population now has internet access, which is a staggering 49.5 percent increase from the recorded estimate in 1990 of just half a percent. From the development of the first computer, to the role of Facebook in the Arab Spring, and now the mass global social media culture, human beings are moving ever more towards life on the web. For those who use it daily, the internet has become the epitome of global civilization.The internet has become the new idea marketplace, in which the exchange of ideas, knowledge, values, and cultures freely move from source to source. As such, the internet can be a foundation upon which revolutions and world events emanate out of, such as the Arab Spring of 2010. However, inherent in this ever-evolving worldwide information source is the risk and danger of personal data falling into the hands of criminals, and/or the constant threat of private information remaining on the internet forever. This issue is not relegated to hackers or criminals, as large companies like Google and Facebook have fallen under fire for their misuse and failure to protect an individual’s data. Yet, data breaches and misuse are not the only dangers associated with the internet. Unwanted personal data can remain on the internet when it is no longer desired, creating a “permanent stigmatization” of one’s reputation. This stigmatization can impact employment hopes and create negative impacts in social circles. A combination of these three threats has created the problem of data privacy and the modern remedy of the right to be forgotten.
  PubDate: Wed, 29 Apr 2020 15:31:52 PDT
Australia’s Tobacco Plain Packaging Law: An Analysis of the TRIPS
Article 20 Challenge at the WTO
- Authors: Cheryl Kirschner
  Abstract: Australia’s Tobacco Plain Packaging Act 2011 (TPP) and corresponding regulations specify that tobacco products be packaged in a particular size box and be made of certain material. No trademark other than the brand’s name may be printed, and font, letter size, color, and other packaging aspects are specified with particularity. These measures recently withstood a contentious dispute settlement request submitted on multiple grounds by four World Trade Organization (WTO) Member countries. What does the WTO’s Panel Report in this case tell us about the extent to which a country can take measures to advance its public health initiatives without violating obligations under Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS)' What is the legal test for deciding this' To what extent can WTO Members undertake broad policy initiatives with the objective of protecting public health' Could WTO Members carry out these initiatives even when the consequence is far-reaching diminishment of branding and economic value of other Members’ trademark rights' Could the WTO Panel’s findings in this case embolden countries to take similar action with other consumer products medically proven to cause harm'
  PubDate: Wed, 29 Apr 2020 15:31:48 PDT
The Language of International Human Rights Law as a Foundation for the
Prevention, and Peaceful Resolution of Ethnic, and Political Conflicts in
Bolivia
- Authors: Yuri Mantilla
  Abstract: Since the Spanish conquest of the New World, the systematic dehumanization of indigenous communities has been part of a culture of economic exploitation and ethnic discrimination against indigenous peoples such as the Aymara, Quechua, and Guarani. In Bolivia, indigenous people successfully resisted the efforts to undermine their cultural identities. As a result, Bolivia is one of the most indigenous countries in the world and its indigenous cultures are one of its greatest assets. Despite this reality, indigenous people have been marginalized and discriminated against in a country that has embraced ethnic stereotypes regarding the supposed “superiority” of people of Spanish descent. This has created conditions of intense ethnic and political conflicts which have been resolved both by peaceful means and by extreme forms of violenceBolivia has faced increased political and ethnic conflicts since the resignation of Bolivia’s first indigenous president, Evo Morales Ayma. The Bolivian crisis is an example of the fragility of Latin American political systems and leadership. As a result of the mediation efforts of several entities—including the United Nations; the European Union; and the Catholic Church—a peaceful resolution of the Bolivian conflict was reached by an agreement of all parties to organize new presidential elections.This article analyzes the historical reasoning for Bolivia’s intense ethnic and political conflicts and the potential for more violent struggles. It suggests that it is essential to prevent the escalation of deeply rooted ethnic conflicts that can destabilize the Bolivian society. To accomplish this objective, this article proposes normative solutions, including the use of language from international human rights law in processes for peaceful resolutions and prevention of ethnic and political conflicts. Finally, this writing addresses the functions of international organizations—including the Organization of American States, and other entities—in current and future mediation efforts in Bolivia, while highlighting the importance of implementing human rights norms to prevent future violent ethnic conflicts.
  PubDate: Wed, 29 Apr 2020 15:31:43 PDT
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