Stanford Journal of International Law

Articles

Vol. 49, No. 2, Summer

Developing Local Capacity for War Crimes Trials: Insights from BiH, Sierra Leone, and Colombia
Generally, in post-conflict situations the domestic justice system is in a state of collapse. Doubts exist as to whether alleged perpetrators of international crimes will be prosecuted effectively, or as to whether they will receive a fair trial. International...
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A Liberal Communitarian Paradigm for Counterterrorism
This paper argues that the current normative and legal paradigms that shape the United States' response to security threats posed by acts of transnational terrorism are misapplied In the international arena, we should downplay states' right to sovereignty...
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A Normative Theory of Sovereignty Transfers
F. The ICJ In none of its cases has the ICJ dealt with either the sovereignty or the liberty questions directly. Yet, the ICJ, and its predecessor the PCIJ, adopted a distinctive conception of sovereignty that has been extremely important in the...
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Counting Once, Counting Twice: The Precarious State of Subsidy Regulation
Subsidy regulation is in a precarious state. While it has been so ever since the conception of the current subsidy regulation regime, the recent disputes between the United States and China over the "double counting" or "double remedies" of subsidies...
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Right to Integrity and the Proposed Resale Royalty Right and Notification Right in the PRC Copyright Law
This Note discusses the enforcement of the right to integrity by PRC courts and compares the Resale Royalty Right and Notification Right in the proposed amendment to the PRC Copyright Law to the laws of the United Kingdom and the United States. PRC...
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Criminal Liability of Civilian Contractors in Iraq and Afghanistan
I. INTRODUCTION II. THE GAPING HOLE: MILITARY CONTRACTORS IN IRAQ AND AFGHANISTAN III. MILITARY EXTRATERRITORIALITY JURISDICTION ACT IV. THE UNIFORM CODE OF MILITARY JUSTICE ARTICLE 2(A)(10) V. CASE STUDY: UNITED STATES V. ALI A....
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Vol. 49, No. 1, Winter

The Global Determinants of U.S. Foreign Affairs Law
A recurring debate in foreign affairs law focuses on the appropriate level of congressional and judicial deference to the President. In answering that question, most scholars focus on the Constitution, Supreme Court precedent, and historical practice...
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Indeterminacy in Corporate Law: A Theoretical and Comparative Analysis
Delaware corporate law is the de facto national law for publicly traded corporations. But whereas its importance is beyond dispute, its efficiency is not. In particular, prominent voices in the literature assert that regulatory competition between...
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The Global Land Rush: Markets, Rights, and the Politics of Food
In the past five years, interest in purchasing and leasing agricultural land in developing countries has skyrocketed. This trend, which was facilitated by the 2008 food crisis, is led by state and private investors, both domestic and foreign. Investors...
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Plucky Little Russia: Misreading the Georgian War through the Distorting Lens of Aggression
South Ossetia--which believed itself an independent state--naturally characterized Georgian forces on its claimed territory as illegal occupiers, though it more commonly used the language of aggression. (92) With one exception, Russia seems not to...
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China's National Security Review: Motivations and the Implications for Investors
Foreign direct investment in China has been a bright spot in the midst of a global recession. The economic powerhouse attracted a record $244 billion in foreign direct investment in 2010, up more than eighty percent from the previous year's total of...
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Transplanting Servitude: The Strange History of Hawai'i's U.S.-Inspired Contract Labor Law
In 1850, as a part of a larger program of Western-influenced legal reform, the independent Kingdom of Hawai'i passed a contract labor statute adapted from existing U.S. state laws to meet the perceived need for a reliable plantation labor force. For...
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Women's International and Comparative Rights
Women's International and Comparative Rights. By Susan W. Tiefenbrun, Carolina Academic Press, 2012 ($50.00). Of the estimated 7,021,836,029 people in the world, approximately half are women. (1) Based on numbers alone, women's human rights have...
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Vol. 48, No. 2, Summer

Editors' Note
The January 2011 uprising in Egypt and the subsequent Arab Spring have focused all eyes on a region that was already featured almost nightly in the news. But this time, the attention is focused on a different aspect of the Middle East: the people's...
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There Is No Human Right to Democracy. but May We Promote It Anyway?
The idea of "promoting democracy" is one that goes in and out of favor. With the advent of the so-called "Arab Spring," the idea of promoting democracy abroad has come up for discussion once again. Yet an important recent line of thinking about human...
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Private Military Firms, the American Precedent, and the Arab Spring
INTRODUCTION Among the important, but largely overlooked, developments arising out of the anti-government protests across the Arab world is the expanded role played by foreign military contractors. These contractors have reportedly endeavored to...
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Caution in What You Wish For: The Consequences of a Right to Democracy
I. INTRODUCTION II. GUARANTEEING AND EXPANDING THE RIGHT OF DEMOCRACY A. Military Intervention B. Imposed Democracies C. Economic Sanctions D. Noncoercive Measures E. Some Conclusions III. CONSEQUENCES OF A MORE DEMOCRATIC...
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Taking Stock of the Responsibility to Protect
INTRODUCTION Through ten years of contentious debate, the responsibility to protect has proven to be both one of the most promising recent developments in international affairs and one of the most disappointing. The concept of a responsibility to...
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Common Interests, Closer Allies: How Democracy in Arab States Can Benefit the West
Western leaders have reacted ambivalently to the antigovernment protests during the "Arab Spring" and the political developments that have followed in countries such as Egypt and Tunisia. This Article argues that they should see democratic change in...
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Stateless in Shangri-La Minority Rights, Citizenship, and Belonging in Bhutan
I. INTRODUCTION II. BHUTAN AND THE BHUTANESE: A HISTORY OF CITIZENSHIP AND THE STATE A. From Disorder to Dynasty: The Rise of the Wangchuk Dynasty, 1651-1977 B. The Narrowing Path: Growing Restrictions on Citizenship, ...
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When and Why the South African Government Disobeys Constitutional Court Orders
INTRODUCTION I. WHEN GOVERNMENTS COMPLY: THE CONSTRAINED COURT IN THE UNITED STATES II. EXPLAINING NONCOMPLIANCE AND PARTIAL COMPLIANCE IN SOUTH AFRICA A. Hypothesis 1 : The government has always complied with Constitutional...
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Vol. 48, No. 1, Winter

Dissent as Dialectic: Horizontal and Vertical Disagreement in WTO Dispute Settlement
"Legal precedent in international dispute settlement is neither to be worshipped nor ignored." Gilbert Guillaume, former President of the International Court of Justice (1) I. INTRODUCTION II. ARE DISSENTS DESIRABLE OR DISAGREEABLE? A....
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What Constitutes an "Agreement in Writing" in International Commercial Arbitration? Conflicts between the New York Convention and the Federal Arbitration Act
This Article investigates whether and to what extent a party must produce an "agreement in writing" when seeking to enforce an international arbitration agreement or award in a U.S. federal court. This issue has recently given rise to both a circuit...
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Global Health Governance at a Crossroads: Trademark Protection V. Tobacco Control in International Investment Law
"As it is unhealthy, I will never smoke again, but now I smoke the last cigarette" Italo Svevo, La Coscienza di Zeno (1923). According to the World Health Organization, tobacco consumption causes the death of five million people each year. Countries...
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Reforming North Korea: Law, Politics, and the Market Economy
Since the economic crisis and famine years of the mid-1990s, there has been intermittent speculation that North Korea has reached a point where it will have to thoroughly reform its entire operational structure or face inevitable collapse. While most...
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Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks
INTRODUCTION I. The Shortcomings of Traditional Approaches A. Statutory Scope B. Jurisdictional Reach C. Extradition D. Constitutional Limitations II.COPYRIGHT INFRINGEMENT ANALYSIS A. Ownership of U.S. Government Works B. Copyrightable Subject...
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The New Cyber Face of Battle: Developing a Legal Approach to Accommodate Emerging Trends in Warfare
I. INTRODUCTION A. What's in a Name? B. Legal Paradigms for Operations in Cyberspace C. The Attribution Problem II. CYBERATTACKS AS COMBAT ENABLERS AND PART OF A COMBINED ARMS CAMPAIGN A. Cyberattacks and the Law of War: Jus ad Bellum ...
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Vol. 47, No. 2, Summer

An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice
More than ever, international attention has been directed to the needs of those who have suffered human rights violations. Nevertheless, the chasm between what victims want and what they obtain is still vast. The Inter-American Court of Human Rights,...
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Is "USDA Organic" a Seal of Deceit? the Pitfalls of USDA Certified Organics Produced in the United States, China and Beyond
American consumers' appetite for organic foods (organics) has dramatically increased since Congress passed the Organic Foods Production Act (OFPA) in 1990. Because the domestic organic food industry has been unable to meet the growing demand for these...
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Evolving Equality: The Development of the International Defense Bar
Defense counsel in international criminal proceedings face difficult challenges that are intrinsic to the modern system of internationalized accountability; yet their professionalism and performance represent perhaps the most determinative dimension...
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Protecting Trademark Rights in China through Litigation
This note examines the potential of trademark right enforcement through commercial litigation in the People's Republic of China ("China "). The note first summarizes the current state of trademark law in China. It then illustrates, through an analysis...
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Vol. 47, No. 1, Winter

Was Selden Right? the Expansion of Closed Seas and Its Consequences
I. INTRODUCTION II. THE IMPACT OF TECHNOLOGY, POLITICS, AND RESOURCE SCARCITY ON THE GOVERNANCE OF OFFSHORE RESOURCES A. Technological Advancements B. Domestic and Multipolar International Politics C. Resource Scarcity III. THE...
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Solving the (Section) 1782 Puzzle: Bringing Certainty to the Debate over 28 U.S.C. (Section) 1782's Application to International Arbitration
Much attention has been devoted during the past several years to whether 28 U.S.C. [section] 1782--a statute authorizing US. federal courts to compel discovery in connection with foreign proceedings--applies to foreign arbitral proceedings. Following...
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Demosprudence in Comparative Perspective
I. INTRODUCTION II. DEMOSPRUDENCE DEFINED A. Guinier's and Torres' Definitions B. Demosprudence and the Liberal Constitutional Renaissance C. Demosprudence and Epp's Rights Revolution D. Demosprudence and Weak-Form Review III. THE DEBATE...
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When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change
Activism around sexual harassment has sparked developments around the globe, but every legal system has its own individualized story of sexual harassment law. This article engages in a comparative study of sexual harassment in India and Israel, which...
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Self-Regulation by the Mexican Stock Exchange: A Promising Path toward Developing Mexico's Securities Market?
I. INTRODUCTION II. BACKGROUND AND EXISTING LITERATURE A. Brief Note on Self-Regulation in Modem Securities Markets B. Securities Enforcement for Capital Market Development: An Ongoing Debate III. SELF-REGULATION IN THE MEXICAN...
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Unfinished Business: Reconciling the Apartheid Reparation Litigation with South Africa's Truth and Reconciliation Commission
I. INTRODUCTION II. PART I: THE STRUCTURE AND INTENT OF SOUTH AFRICA'S TRC A. Historical Context B. Structure--An African Conception of Justice? C. The Nature of Reparations Recommended by the TRC D. The TRC's Approach to Amnesty III....
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Vol. 46, No. 2, Summer

The Law, Economics and Politics of Preferential Trading Arrangements: An Introduction
In 1947, twenty-three nations created the General Agreement on Tariffs and Trade (GATT) and thereby established the modern multilateral trading system. The GATT grew in size and scope until it was replaced by (and subsumed into) the World Trade Organization...
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Preferential Trade Arrangements and the Erosion of the WTO's MFN Principle
I. INTRODUCTION II. THE MFN PRINCIPLE III. GENERAL AGREEMENT ON TARIFFS AND TRADE 1994 IV. INTERPRETATION OF ARTICLE XXIV BY GATT AND THE WTO V. GATT AND WTO FTA REVIEW PROCESSES VI. WTO DISPUTES INVOLVING ARTICLE XXIV VII. A DE FACTO TRUCE VIII....
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Global Trading System: Decline of Nondiscrimination and Rise of Preferential Trade Arrangements and Agreements
I. INTRODUCTION II. ORIGINS OF GATT III. PREFERENTIAL TRADE AGREEMENTS AND GATT IV. RECENT EMPIRICAL LITERATURE ON INTERNATIONAL TRADE AGREEMENTS V. EMPIRICAL ANALYSIS OF PTAS USING GRAVITY MODELS VI. EMPIRICAL ANALYSIS OF INCENTIVES OF FIRMS...
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Regime Type, Veto Points, and Preferential Trading Arrangements
I. WHAT ARE PREFERENTIAL TRADING ARRANGEMENTS? II. THE EFFECTS OF REGIME TYPE AND VETO POINTS ON PTA FORMATION III. EMPIRICAL TESTS OF THE HYPOTHESES IV. THE DEPENDENT VARIABLE: PTA RATIFICATION V. THE KEY INDEPENDENT VARIABLES: REGIME TYPE...
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Vol. 46, No. 1, Winter

Global Health Governance and the Contentious Politics of Human Rights: Mainstreaming the Right to Health for Public Health Advancement
I. FOUNDATION OF WHO, HUMAN RIGHTS FRAMEWORKS, AND INTERNATIONAL SYSTEMS OF COORDINATION IN PUBLIC HEALTH AND HUMAN RIGHTS II. THE BIRTH, DEATH, AND RESURRECTION OF HUMAN RIGHTS IN WHO PROGRAMMING A. WHO Influences Human Rights (1948-1952)--The...
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Scaling Back Minority Rights? the Debate about China's Ethnic Policies
I. INTRODUCTION: THE TIBET AND XINJIANG RIOTS AND PROPOSALS TO SCALE BACK ETHNIC MINORITY RIGHTS II. BACKGROUND TO THE PROPOSALS: CHINA'S CONTEMPORARY ETHNIC POLICIES A. The Chinese Government's Official Recognition of Ethnic Minorities ...
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The Alien Tort Statute and the Limits of Individual Accountability in International Law
ABSTRACT Under the original understanding of the AT S, as well as the modern construction set forth by the Supreme Court in Sosa v. Alvarez-Machain, ATS claims can be properly based only on the small number of norms for which international law recognizes...
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Vol. 45, No. 2, Summer

Nuclear Terrorism in a Globalizing World: Assessing the Threat and the Emerging Management Regime
TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. The Cause for Concern III. ANALYSIS OF THE ISSUE A. Dimensions B. Ramifications: Early Problems Created by the Threat C. Economic, Political, and Legal Impacts of Nuclear Terrorism...
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The Pirates of the Gulf of Aden: The Coalition Is the Strategy
Abstract New international legal and policy frameworks have become the most effective force multiplier for developing maritime security and offer optimal approaches to counter piracy in the Horn of Africa. Piracy flourishes at the seams of globalization...
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The Application of TRIPS to GMOs: International Intellectual Property Rights and Biotechnology
TABLE OF CONTENTS INTRODUCTION I. U.S. PATENT LAW AND GENETICALLY MODIFIED PLANTS II. EUROPEAN AND NATIONAL TREATMENT OVERSEAS III. POTENTIAL NEGATIVE IMPACTS A. Pirated and Sterile Seeds B. Creation of Monocultures C. Constricting...
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Vol. 45, No. 1, Winter

Editors' Note
On behalf of the Executive Board and editorial staff, we are pleased to present volume 45.1 of the Stanford Journal of International Law. The four articles published in this issue touch on a wide variety of topics, including: the rule of law and its...
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The Kremlin's Eye: The 21st Century Prokuratura in the Russian Authoritarian Tradition
Russia is a country of legal nihilism. No European country can boast such a universal disregard for the rule of law. Dmitri Medvedev, President of the Russian Federation, 2008 (1) I. INTRODUCTION Founded by Tsar Peter the Great in 1722, the...
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The Rule of Law and Its Promotion Abroad: Three Problems of Scope
TABLE OF CONTENTS I: INTRODUCTION: THE RULE OF LAW AND THE ROLE OF LAWYERS II: CONCEPTUAL SCOPE: THE RULE OF LAW AND DEMOCRATIC QUALITY A. Legal Philosophy B. Development Economics C. Democratization Theory D. Toward an Operational Definition: The...
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Somaliland: Shackled to a Failed State
I. INTRODUCTION Somalia lacks the basic characteristics that define a state in the international community. The rule of law has been obliterated by years of civil war and internal strife, leaving Somalia a "failed state." For the last decade and...
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Policentrism, Political Mobilization, and the Promise of Socioeconomic Rights
I. INTRODUCTION One remarkable constitutional development of the twentieth century is the broad inclusion of socioeconomic rights in new constitutions. (1) Because these provisions impose affirmative obligations on the governments enforceable by...
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Vol. 44, No. 2, Summer

The History and Potential Future of the Israeli-Palestinian Water Conflict
TABLE OF CONTENTS I. INTRODUCTION II. SHORTCOMINGS OF THE CURRENT WATER REGIMES III. THE RELEVANT WATER FRAMEWORKS A. Major Negotiations, Agreements, and Plans that Affect the Israeli-Palestinian Water Allocation ...
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Panglossian Transnationalism
Abstract Transnationalism represents a major leap forward in our understanding of events that cross national borders. At the same time, though, the transnational approach is woefully incomplete. Students looking for intellectual coherence are...
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Is Transnational Litigation a Distinct Field? the Persistence of Exceptionalism in American Procedural Law
TABLE OF CONTENTS I. INTRODUCTION II. METHODOLOGY III. INTERSTATE-INTERNATIONAL EQUIVALENCE A. The First Wave of American Transnationalism B. The Second Wave of American Transnationalism IV. TRANSNATIONALISM AND THE AMERICAN...
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Arbitrating Arms Control Disputes
TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORY OF INTERNATIONAL ARBITRATION AND ARMS CONTROL A. Arbitration of Military-Related Disputes 1. Definitions 2. Military-Related Arbitrations from Ancient Times to Today...
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Vol. 44, No. 1, Winter

Editors' Note
On behalf of the Executive Board and editorial staff, we are pleased to present volume 44.1 of the Stanford Journal of International Law. The articles published in this issue reflect the wide-ranging nature of contemporary international law scholarship,...
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Sentencing and Incarceration in the Ad Hoc Tribunals
TABLE OF CONTENTS I. INTRODUCTION II. DISCREPANCIES IN SENTENCING PRACTICES A. Introduction: Consistency and Length of Sentences B. Assessing Consistency of Sentences Between the ICTY and the ICTR C. Overview of Sentences at...
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The Intent-to-Benefit: Individually Enforceable Rights under International Treaties
Abstract Citizens of foreign countries are increasingly using international treaties to assert claims against Federal and state governments. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually...
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Were Chinese Rulers above the Law? toward a Theory of the Rule of Law in China from Early Times to 1949 CE
Abstract In recent years, there has been a growing awareness both in China and elsewhere of the importance of law in Chinese efforts to bring order--if not justice--to society and the world. Even the most admiring students of Chinese legal history,...
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The Double Weakness of Girls: Discrimination and Sexual Violence in Haiti
TABLE OF CONTENTS I. INTRODUCTION A. From Slavery to Independence B. "Where Pigs Feast and People Starve" III. PRACTICES OF DISCRIMINATION AND SEXUAL VIOLENCE AGAINST GIRLS IN HAITI A. Fieldwork and Research Methods B. Discrimination...
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Vol. 43, No. 2, Summer

Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes against Humanity
Abstract The Genocide Convention protects racial, ethnic, religious, and national groups. It does not cover political groups. Some nevertheless suggest that there is no need to consider revising the Convention to include political groups because...
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Crossing the Thin Blue Line: An Inquiry into Israel' S Recourse to Self-Defense against Hezbollah
Abstract The present Article examines the legality of Israel's military intervention in Lebanon in the summer of 2006 from a jus ad bellum perspective. More specifically, it examines whether Israel could lawfully invoke the right of self-defense,...
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Extradition's Paradox: Duty, Discretion, and Rights in the World of Non-Inquiry
TABLE OF CONTENTS INTRODUCTION I. OVERVIEW OF EXTRADITION IN THE UNITED STATES A. Sources of Law B. Procedural Setting of the Extradition Hearing II. THE RULE OF NON-INQUIRY IN GENERAL A. A Short History of the Rule B. Treaty-created...
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Vol. 43, No. 1, Winter

"Hybrid" Justice in East Timor, Sierra Leone, and Cambodia: "Lessons Learned" and Prospects for the Future
I. INTRODUCTION As is well known, the forty-five years after the completion of the Nuremberg and Tokyo trials produced a large body of new substantive international humanitarian law. However, because of the political impasses generated by the Cold...
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The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law
INTRODUCTION To date, scant attention has been paid to sentencing in international criminal law (ICL); indeed, in the historic practice of international criminal tribunals, "the sanction imposed often appears to be little more than an afterthought."...
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Using Force First: Moral Tradition and the Case for Revision
I. INTRODUCTION The four years that have elapsed since the United States boldly claimed the right to use preemptive force absent an imminent threat (1) have brought no calm to this roiled area of international law. "Preservationists" defend the...
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The WTO Cathedral
The only universal consequence of a legally binding promise is that the law makes the promisor pay damages if the promised event does not come to pass. (1) According to conventional wisdom, it is a waste of time and money for developing countries...
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Liberalization and Cravathism: How Liberalization Triggered the Reorganization of the Legal Profession in Germany and Japan
I. INTRODUCTION Transnational legal practice has grown dramatically in the last twenty years as U.S. law firms expanded overseas. (1) This expansion has invariably affected targeted nations' legal professions as previously insulated native lawyers...
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Vol. 42, No. 2, Summer

The Politics of Lending and Reform: The International Monetary Fund and the Nation of Egypt
I. INTRODUCTION One of the foundational commitments of the International Monetary Fund (IMF, or "Fund") was that it would be politically neutral. (1) The IMF has struggled to achieve neutrality, hindered by its structure and the dominance of large...
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Barcelona Traction in the 21st Century: Revisiting Its Customary and Policy Underpinnings 35 Years Later
INTRODUCTION In the 1970 Barcelona Traction (1) case, the International Court of Justice (ICJ) articulated a rule, ostensibly based on custom, that a corporation is a national of the state in which it is incorporated for the purpose of diplomatic...
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Can Appropriation Riders Speed Our Exit from Iraq?
I. INTRODUCTION If the President loses centrist American political support for continuing the war in Iraq, members of Congress might employ their most legally potent, yet controversial, tool to speed our exit, or at least to change policy. Namely,...
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The International Criminal Tribunal for the Former Yugoslavia's Response to the Problem of Transnational Abduction
INTRODUCTION In a 2003 interview, Judge Theodor Meron noted with pride that the inauguration of the International Criminal Tribunal for the Former Yugoslavia (ICTY) marked "the first time since Nuremberg [that the] international community has established...
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