Boston College International and Comparative Law Review

Articles

Vol. 40, No. 3, 2017

PRIORITIZING NATIONAL SECURITY AT THE EXPENSE OF REFUGEE RIGHTS: THE EFFECTS OF H.T. V. LAND BADEN-WÜRTTENBERG
IntroductionGlobal forced displacement surpassed sixty million people in 2015 and a record 1.3 million migrants applied for asylum in European Union (EU) countries throughout the year.1 Many of these asylum seekers qualify as refugees who are entitled...
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UNSAFE HARBOR: THE EUROPEAN UNION'S DEMAND FOR HEIGHTENED DATA PRIVACY STANDARDS IN SCHREMS V. IRISH DATA PROTECTION COMMISSIONER
INTRODUCTIONBoth the United States and European Union (EU) avow a commitment to protecting data privacy, but their drastically different approaches have repeatedly been a source of tension.1 In 1995, the EU adopted the Data Protection Directive (DPD)...
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O'KEEFFE V. IRELAND: THE STATE'S OBLIGATION TO PROTECT CHILDREN FROM SEXUAL ASSAULT IN STATE SCHOOLS
IntroductionIn Ireland, upon the enactment of the Commission to Inquire into Child Abuse Act in 2000, the Ryan Commission was formed to investigate child abuse occurring primarily in reformatory and industrial schools.1 The Ryan Commission stated in...
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Vol. 39, No. 1, 2016

International Water Rights on the White Nile of the New State of South Sudan
INTRODUCTIONThe Nile River Basin expands from the rainforest of Lake Victoria over the wet highlands of Ethiopia to the deserts of Sudan and Egypt until it empties its waters into the Mediterranean Sea.1 The roughly 300 million inhabitants of the riparian...
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Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection
INTRODUCTIONOn my way to Boston, I spent a week in August 2014 on the U.S.-Mexico border visiting the Kino Border Initiative at Nogales (KBI). I visited the spot at the border fence where Cardinal Seán Patrick O'Malley, the Archbishop of Boston, celebrated...
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International Legal Protections for Migrants and Refugees: A Response to Father Brennan
INTRODUCTIONIt is a privilege to comment on this case study of asylum, migration, and national border protection. Father Brennan is a true expert on the law most relevant to the study-international refugee law. Refugee law is a highly complex area of...
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A Combative Disease: The Ebola Epidemic in International Law
INTRODUCTIONBeginning in March 2014, an outbreak of Ebola ripped through West Africa, spreading quickly from rural villages to urban centers and across the globe.1 Though the outbreak began in Guinea, it travelled rapidly to Liberia and Sierra Leone.2...
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Up in the Air: Harmonizing the Sharing Economy through Airbnb Regulations
IntroductionFrom parking spots to pet sitting, Internet-based sharing applications (or simply, "apps") have expanded over the years to cover a diverse range of industries.1 The sharing economy taps into an existing base of items that people already own.2...
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The Efficacy and Impact of Interim Measures: Ukraine's Inter-State Application against Russia
INTRODUCTIONViolence erupted across the country after Ukrainian President Viktor Yanukovych abandoned a monumental economic and political association agreement with the European Union (EU) in November 2013.1 Ethnic and cultural divisions that had existed...
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The Zeitgeist of Secession Amidst the March towards Unification: Scotland, Catalonia, and the Future of the European Union
IntroductionOn September 18, 2014, the people of Scotland voted to remain a part of the United Kingdom (UK) in a highly anticipated referendum.1 Of the 84% of the population that participated, 55.3% voted to remain with the UK, while 44.7% voted to become...
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Vol. 39, No. 2, 2016

International Water Law and China's Management of Its International Rivers
IntroductionChina has within its borders the most international rivers and lakes in the world,1 and it lies within a staggering nineteen international water basins.2 With approximately 110 international lakes and rivers, China benefits from a rich supply...
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Integrating Lawfare and Warfare
IntroductionBoth kinetic warfare and legal dispute are forms of contestation.1 Contestation can be physical or symbolic.2 Legal arguments or claims are one type of symbolic contestation.3 Other types of symbolic contestation may be based on historical...
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Law and Finance: The Case of Stock Market Development in China
(ProQuest: ... denotes non-US-ASCII text omitted.)INTRODUCTIONDespite various peculiarities and having the reputation of being "worse than a casino," the stock market of mainland China has grown to prominent stature since the opening of the Shanghai...
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Uncertain Costs, Unclear Benefits: China's Social Insurance System and Foreign Workers
INTRODUCTIONFor companies with a global outlook, establishing a foothold in China is a necessity, not a choice.1A 2014 survey by the U.S.-China Business Council2 showed that 22% of responding American companies view China as their top priority for growth,...
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How to Sidestep Saying "See Ya Real Soon" to the Public Domain: Using Droit D'auteur to Justify a Trademark-Favored Treatment of Mickey Mouse
INTRODUCTION"I only hope we never lose sight of one thing-that it was all started by a mouse."1 It is hard not to affiliate the Walt Disney Company (TWDC), a multibillion dollar corporation, with its iconic symbol, Mickey Mouse.2 Neverthe- less, we may...
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Too Big to Nail: How Investor-State Arbitration Lacks an Appropriate Execution Mechanism for the Largest Awards
INTRODUCTIONInternational arbitration has become a key dispute-resolution mechanism for cross-border transactions, particularly international investment.1 In fact, for most investors, an investment-arbitration provision-found in bilateral investment...
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Withdrawing a License to Kill: Why American Law Should Jettison "Stand Your Ground" and Adopt the English Approach to Retreat
INTRODUCTIONAmericans own more guns than their counterparts in other wealthy nations. 1 In fact, one in four Americans, 35% of American households, own at least one gun.2 The Supreme Court has held that the Second Amendment to the U.S. Constitution guarantees...
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Vol. 39, No. 3, 2016

Mixing Oil and Water: The Role of Natural Resource Wealth in the Resolution of the Maritime Boundary Dispute between Ghana and Côte D'ivoire
INTRODUCTIONA $4.9 billion offshore oil project has the capacity to bring eagerly awaited economic stability to the West African country of Ghana.1 The endeavor appears to be a win-win situation for both Ghana and Tullow, the British firm at the helm...
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TROUBLE ON THE HIGH SEAS: A NEED FOR CHANGE IN THE WAKE OF AUSTRALIA V. JAPAN
IntroductionLook sharp, all of ye! There are whales hereabouts! If ye see a white one, split your lungs for him!-Moby Dick1Since the days of Herman Melville's whaling adventures-which provided the inspiration for his literary masterpiece, Moby Dick-the...
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DOWN WITH THE SHIP: THE PROSECUTION OF PIRATICAL ACTS IN UNITED STATES V. ALI
INTRODUCTIONThough the international seafaring community has been plagued by acts of piracy on the high seas for centuries, the frequency of piratical acts has increased dramatically in the last few decades.1 One such act involved the ransom of crewmembers...
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NOVARTIS AG V. UNION OF INDIA: WHY THE COURT'S NARROW INTEPRETATION OF ENHANCED EFFICACY THREATENS DOMESTIC AND FOREIGN DRUG DEVELOPMENT
IntroductionIn April 2013, the Supreme Court of India upheld the Indian Patent Office's rejection of Novartis's patent application for the final form of its therapeutic drug Gleevec.1 Gleevec, which comprises the beta crystalline form of a chemical compound...
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CASE OF MOUVEMENT RAËLIEN SUISSE V. SWITZERLAND: A BLOW TO FREEDOM OF EXPRESSION IN THE INTERNET AGE
INTRODUCTIONThe Raëlien Movement (the Movement) is a Geneva-based non-profit organization that aims to establish first contact and good relations with extraterrestrial beings.1 Founded in 1976 by Claude Vorilhon, also known as "Raël," the Movement's...
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Vol. 38, No. 1, 2015

Globalization of Water Privatization: Ramifications of Investor-State Disputes in the "Blue Gold" Economy
INTRODUCTIONWater is often perceived as an infinite natural resource. Unfortunately, the tragic reality is it maintains a fixed invariable volume with less than three percent consisting of fresh water.1 Never before has the inherent ten- sion of scarcity...
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Making an Offer They Can't Refuse: Corporate Investment in Africa and the Divestment of Indigenous Land Rights
INTRODUCTIONIn 1884, the counts, barons, colonels, and kings of thirteen European nations sat down in front of a large map of Africa in Chancellor Bismarck's Berlin residence.1 By February 1885, they had partitioned the map of the African continent piecemeal...
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Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act
INTRODUCTIONSince 2009, the United States has prosecuted six government employees and two contractors for disclosing confidential government information to the press in violation of the Espionage Act.1 Prior to 2009, only three such prosecutions had...
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A Case for Arbitration: The Philippines' Solution for the South China Sea Dispute
INTRODUCTIONIn January 2013, the Philippines submitted for arbitration a claim against the People's Republic of China for violations of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) after more than a decade of unsuccessful bilateral...
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Mexico's Catch-22: How the Necessary Extradition of Drug Cartel Leaders Undermines Long-Term Criminal Justice Reforms
INTRODUCTIONIn 2012, the bodies of fourteen men and women were hung from meat hooks in the northeast Mexican border town of Nuevo Laredo.1 A note accompanying the victims was signed, "Attentively, Chapo. Remember I am your real daddy."2 Such gruesome...
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Vol. 38, No. 2, 2015

"One Country Two Systems" as Bedrock of Hong Kong's Continued Success: Fiction or Reality?
(ProQuest: ... denotes non-US-ASCII text omitted.)INTRODUCTION"Hong Kong will be administered by people in Hong Kong. The administrators will be elected by the people there." 1-Deng XiaopingThe relationship between Hong Kong and China is unique in having...
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Dynamics of Belgian Plurinational Federalism: A Small State under Pressure
INTRODUCTIONBelgium is a bipolar federal state "driven by a dynamic of dissociation" that rests on a complex system of multi-level powers.1 Before 1970, Belgium was governed as a unitary state in which sovereignty rested solely with the central government-an...
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Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland
INTRODUCTIONMechanisms of constitutional change have gained renewed interest in recent years. The Arab Spring and its associated constitution-making processes is perhaps the most visible manifestation of this.1 Other examples include the Scottish and...
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Piecemeal Freedom: Why the Headscarf Ban Remains in Place in Turkey
INTRODUCTIONIn the fall of 2013, a group of teachers and their eighth grade students went to a military dining facility in Istanbul for a dinner event.1 Everyone was allowed entrance into the facility, except for a female teacher wearing a headscarf.2...
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The Art of Atonement: How Mandated Transparency Can Help Return Masterpieces Lost during World War II
The works . . . which have never been recovered . . . have been lost as a result of the difficulties we faced, in Italy and elsewhere, in re-establishing the sense of morality and justice which regulates the relationships among civilized peoples.-Rodolfo...
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A Nation Going Under: Legal Protection for "Climate Change Refugees"
INTRODUCTIONSinking islands in the Pacific, drowning deltas in South and Southeast Asia, desertification across the West African Sahel and Mexico, and extreme weather events occurring with increasing frequency around the world- climate change-driven...
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Vol. 36, No. 1, Winter

The Fiscal Compact, the "Golden Rule," and the Paradox of European Federalism
Abstract: This Article analyzes the central provision of the recently enacted Fiscal Compact, which directs member states of the European Union (EU) to incorporate into their constitutions a "golden rule"-that is, a requirement that yearly budgets be...
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Rethinking Economic Governance: A Naturalistic Cosmopolitan Jurisprudence
Abstract: This Article seeks to develop a frame of reference for comprehending legitimacy structures in emerging global economic governance regimes. To that end, it provides, in contradistinction from positivist and pragmatist approaches, an alternative...
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Beyond Revolution: Ending Lawlessness and Impunity during Revolutionary Periods
Abstract: In early 2011, mass protests erupted throughout Libya, political elites defected to form the resistance National Transitional Council, and the international community eventually intervened in the conflict. The result was the ouster of long-ruling...
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Justice for All: American Muslims, Sharia Law, and Maintaining Comity within American Jurisprudence
Abstract: The U.S. Muslim population, although currently only comprising one percent of all Americans, is on the rise. Muslim Americans are largely assimilated, happy with their lives, moderate with respect to divisive issues, and opposed to violence....
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Trapped in China's Shadow? Intellectual Property Protection in Post-WTO-Accession Russia
Abstract: Russia's December 2011 accession to the World Trade Organization means that it has agreed to implement and enforce intellectual property (IP) laws in accordance with the Agreement on Trade-Related Aspects of Intellectual Property. This gives...
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Erecting New Constitutional Cultures: The Problems and Promise of Constitutionalism Post-Arab Spring
Abstract: Constitutions contain two types of elements: functional and aspirational. The functional elements establish the institutions that comprise the state and the pragmatic rules of governance-the "constitution in practice." Aspirational elements...
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Mind the Gap: The Equality Bill and Sharia Arbitration in the United Kingdom
Abstract: The observance of Sharia principles in Islamic arbitration tribunals operating in the United Kingdom has been heralded for its ability to provide Muslim communities with internal, community-based fora for dispute resolution. Although the judgments...
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Vol. 35, No. 2, Spring

Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse
Abstract: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept's growing role in the transnational...
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Anchoring the Law in a Bed of Principle: A Critique of, and Proposal to Improve, Canadian and American Hearsay and Confrontation Law
Abstract: As recent case law demonstrates, both American Sixth Amendment Confrontation Clause jurisprudence and Canadian common law relating to hearsay evidence are conceptually problematic. The laws are, at times, internally incoherent and are difficult...
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Multikulti Ist Doch 'Ne Erfolgreiche Realität: Why Tolerance Is Vital for German Economic Growth
Abstract: In October 2010, German politicians declared that multiculturalism in Germany was no longer viable. That controversial declaration ignited a heated debate, and Germans were forced to address the fact that national immigration policies since...
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Short-Time Compensation: Is Germany's Success with Kurzarbeit an Answer to U.S. Unemployment?
Abstract: The recent financial crisis caused a global recession that affected the economies of both the United States and Germany. While the ranks of jobless workers expanded in the U.S. and unemployment remain high, Germany's labor market was less affected...
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Hacktivism: A New Breed of Protest in a Networked World
Abstract: After WikiLeaks released hundreds of thousands of classified U.S. government documents in 2010, the ensuing cyber-attacks waged by all sides in the controversy brought the phenomenon of hacktivism into popular focus. Many forms of hacktivism...
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Constitutionalizing an Enforceable Right to Food: A New Tool for Combating Hunger
Abstract: Although international treaties recognize a right to food, few nations have established a domestic, legally enforceable right to food. A justiciable national right to food can provide a basis for legal redress, national food policies, and state...
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Uncle Sven Knows Best: The Ecj, Swedish Gambling Restrictions, and Outmoded Proportionality Analysis
Abstract: The free movement of services is a fundamental tenet of the European Union's Common Market. Gambling services' free movement, however, has long been obstructed by municipal gambling restrictions. One such restriction in place in Sweden authorized...
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Justice for Tyrants: International Criminal Court Warrants for Gaddafi Regime Crimes
Abstract: The Arab Spring was a period of great transition in the Middle East and North Africa, when people in many nations united in protest against their oppressive and tyrannical governments. In February 2011, the Libyan people filled their city streets...
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Left Hanging: The Crucifix in the Classroom and the Continuing Need for Reform in Italy
Abstract: Increased immigration throughout Europe and expanding religious pluralism have exerted pressure on European States to make further accommodation for minority religious populations. This poses a challenge for Italy and other European States...
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Vol. 35, No. 1, Winter

Following a Sigmoid Progression: Some Jurisprudential and Pragmatic Considerations regarding Territorial Acquisition among Nation-States
Abstract: This article analyzes methods and doctrines used by States to acquire territories. The role of the United Nations in resolving disputes between nations and the inhabitants directly affected by the disputes is also addressed, including the jurisdictional,...
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Love It or Hate It, but for the Right Reasons: Pragmatism and the New Haven School's International Law of Human Dignity
Abstract: This Article presents a novel understanding of pragmatism in the New Haven School of international law. The New ffaven Jurisprudence is wrapped in layers of mystification and the scant accounts of its pragmatism in the literature are either...
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Social Media, Political Change, and Human Rights
Abstract: In this Essay, the role of social media in progressive political change is examined in the context of the Arab Spring uprisings. The concept of social media is explained, and Clay Shirky's arguments for and Malcolm Gladwell's arguments against...
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Shielding the Public Interest: What Canada Can Learn from the United States in the Wake of National Post and Globe & Mail
Abstract: In Canada and the United States, freedom of the press is among the most fundamental rights of citizens; yet, the exact contours of this freedom are still hotly debated. One contested question concerns the right of a journalist to protect the...
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Wanted: A Practical Application of the Foreign Sovereign Immunities Act to Foreign Reward Offers
Abstract: In 1976, Congress sought to codify the application of sovereign immunity with the passing of the Foreign Sovereign Immunities Act (FSIA). As foreign governments began to routinely act as participants in international commerce, Congress intended...
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Delayed Fight: The World Trade Organization Dispute Settlement Mechanism, Negotiation, and the Transatlantic Conflict over Commercial Aircraft
Abstract: For over thirty years, the United States and the European Union have waged a bitter and seemingly eternal political battle over the manufacture and trade of large commercial aircraft. In 2005, they brought this dispute to the World Trade Organization...
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This Is Gun Country: The International Implications of U.S. Gun Control Policy
Abstract: Mexican drug trafficking organizations are the largest providers of illicit drugs to the United States. They have also grown to rely on advanced, high-power weaponry and to use their nearly military-grade armament to maintain control over smuggling...
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Vol. 34, No. 1, Winter

The Trans-Pacific Partnership: New Paradigm or Wolf in Sheep's Clothing?
IntroductionThe Office of the United States Trade Representative (USTR) has devoted significant resources to negotiating the United States' accession to a trade agreement known as the Trans-Pacific Partnership (TPP). Although these negotiations have...
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