Recent Submissions

  • On Teaching International Law

    Higgins, Rosalyn (1983-01-01)
    INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE: THE PUBLIC ORDER OF THE WORLD COMMUNITY. By Myres S. McDougal and W. Michael Reisman. Mineola, New York- Foundation Press, 1981. Pp. lxviii, 1584. $29.00. This monumental collection of cases and materials brings to fruition many years of effort by the authors, assisted at various stages of the project by other colleagues. For those who have been exposed to the culture shock of a policy science course on international law (and survived the experience) and for those who have had the intellectual stimulation of teaching such a course, the publication of this book is an important event. It makes available a radically different approach to the teaching of international law. This difference lies not in its content: a student who has mastered these materials will emerge with an enormous knowledge of substantive international law. The authors have never selected for our instruction materials that are ephemeral or singular, nor do they do so now. The traditionalist will feel neither that vital source materials are missing, nor that undue emphasis is given to materials of no weight. This is not the sort of fashionable textbook that is full of (ill-informed) letters to the New York Times on current problems of international law, but in which the Lotus case and the Vienna Convention on Treaties are inexplicably missing. Rather, the difference between this and other texts is one of approach and structure. By breaking away from the traditional textbook headings, the authors show that the real interrelationship of the different facets of international law is a dynamic rather than a static process. This structural approach demonstrates the importance of contextual analysis, and stresses ways in which international law is directed toward the attainment of certain policy objectives and the promotion of particular values.
  • Foreign Commerce and the Antitrust Laws

    Davidow, Joel (1983-01-01)
    FOREIGN COMMERCE AND THE ANTITRUST LAWS. 3d ed. 2 Vol. Pp. xlviii, 887. By Wilbur Fugate. Boston: Little, Brown, 1982. $100. The present state of international antitrust may well breed cynicism among supporters of free competition and free trade. The new edition of Wilbur Fugate's treatise, like some other recent books on international antitrust, concentrates on tracing the expanding reach of United States antitrust law, the spread of American principles of competition to other nations, and the embodiment of these principles in international codes and declarations. These developments are surprising, in light of the odds against them. But little stressed in such surveys is the evidence that all national laws are heavily influenced by self-interest and mercantilist considerations, and that in most countries competition is honored more in the breach than in the observance, and in a substantial number rejected outright. The recent enactment in England, France, and Australia of laws aimed at counteracting United States antitrust investigations has shown that conflict and hindrance are far more common than cooperation in international antitrust enforcement.
  • Innocent Passage and Transit Passage in the United Nations Convention on the Law of the Sea

    Burke, Karin; DeLeo, Deborah (1983-01-01)
    The seas have always proved an extraordinary resource for the limited number of communities having access to them. Although in modem times the seas have been considered a resource available for the use of all nations and the exclusive property of none, the recent history of the law of the sea continues to reflect conflicts between states seeking unhampered navigation and utilization of resources and other states seeking exclusive control over adjacent seas. The international law of the sea seeks to moderate these competing interests by "establishing and maintaining a public order in the shared use of, and shared competence over, the oceans. '
  • The Public Order of the Geostationary Orbit: Blueprints for the Future

    Wiessner, Siegfried (1983-01-01)
    The use of space has grown exponentially. It is impossible today to conceive of international communications, weather forecasting, or the screening of the riches of the earth without the help of space-based devices. Full-scale industrialization of outer space is under way, and space has become a critical arena for military strategists in the global duel.
  • A Legal Strategy for Controlling the Export of Hazardous Industries to Developing Countries: The Case of Asbestos

    Brennan, Troyen; Lucas, Laurence (1983-01-01)
    As the United States and other industrialized countries have promulgated standards of safety and health for the workplace since the 1970s, employers have sought methods of minimizing or avoiding the cost of such controls. One method is simply to relocate hazardous production processes in developing nations that do not demand compliance with occupational health standards. This has resulted in the export of occupationally- related diseases to developing countries. The problem warrants the concern of human rights and public health advocates in the United States and other countries from which hazardous industries are exported.
  • The Evolution of the Political Offense Exception in an Age of Modem Political Violence

    Thompson, Duane (1983-01-01)
    The United States is party to ninety-six extradition treaties, each of which specifies that no obligation exists to extradite an individual for an act that constitutes a political offense. Born of the experience of the Enlightenment, this doctrine has become known as the "political offense" exception. The exception allows countries to remain neutral in foreign conflicts, at least to the extent of declining to deliver participants into the hands of their enemies.
  • The Enforcement of Arbitral Awards under Conventions and United States Law

    von Mehren, Robert (1983-01-01)
    The process of arbitration is often chosen by parties to resolve disputes arising in international commerce because it permits them to resolve differences in a neutral setting outside the domestic legal system of any particular country. As neither party to an international commercial agreement wishes to be at a disadvantage if a dispute arises with respect to that agreement, arbitration, whether on an ad hoc basis or through an international arbitration institution such as the Court of Arbitration of the International Chamber of Commerce (ICC), the International Centre for the Settlement of Investment Disputes (ICSID), or the World Arbitration Institute associated with the American Arbitration Association (AAA), offers the opportunity to resolve the controversy in a setting that the parties believe will be fair to both sides. Moreover, arbitration proceedings are often more flexible, less expensive and less time-consuming than ordinary litigation.
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    1983-01-01
  • "Exorbitant Jurisdiction" and the Brussels Convention: Toward a Theory of Restraint

    Halpern, Joseph (1983-01-01)
    A contemporary theory of international jurisdiction must be based on a theory of legitimacy and a theory of restraint. It must establish criteria - embodying both predictable mechanisms of allocation and current state practice - to determine whether a particular national assertion of jurisdiction is acceptable.
  • Human Rights and National Security

    Bozeman, Adda (1982-01-01)
    This paper is informed by the following guidelines from the sponsors of the Lowenstein Symposium: The focus. . . will be the claim advanced by nation-states that threats to their particular security necessitate and justify the curtailment of fundamental freedoms and liberties of the individual person within the national domain. We request that panelists address their remarks specifically to questions such as: What are the contending claims made by state officials and individuals and the attendant circumstances? What are the underlying policy justifications for derogations? What, in such situations, constitutes a violation or deprivation of human rights? What, until now, has been the international community's approach to the analysis and resolution of state security and human rights claims? What ought the appropriate response to the international community be?
  • National Security And Civil Liberties

    Emerson, Thomas (1982-01-01)
    From the beginning of our nation claims of national security have been advanced as grounds for expanding governmental powers or easing restrictions on those powers. Perhaps at no time, other than during active war, have such claims been urged more insistently or on a broader front than they are now. The reasons for this development lie deep in our present political, economic, and social condition. They include the ever-growing complexities faced in the governance of a modem technological nation, the radical nature of the problems that confront us at home, the changes taking place in the world around us, the position of the United States in global affairs, the specter of nuclear warfare, the vulnerability of modern society to terrorist tactics, and many others. Whatever the causes may be, the tension between national security and traditional liberties plainly poses vital questions for our constitutional structure.
  • Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights

    Schreuer, Christoph (1982-01-01)
    Governments commonly assert that there exists a right to derogate from human rights norms to safeguard the public interest during crises. Such assertions reflect an attempt to reconcile individual and aggregate interests. This task becomes especially difficult in situations of public emergency. Crisis or emergency situations usually involve violence and the imminent or actual breakdown of minimum order. In such situations, insistence on special individual interests can have serious detrimental effects on community welfare. The need to accommodate both sets of claims is recognized in international documents dealing with the protection of human rights as well as in national instruments safeguarding basic rights and fundamental freedoms. While it is clear that individual rights are not absolute, the international community must guard against spurious invocations of community interests to excuse violations of human rights. Such invocations are typically made to facilitate the task of power elites in ruling a community or, worse, to further their special interests.
  • A Typology of National Security Policies

    Tapia-Valdes, J.A. (1982-01-01)
    Authors addressing the problem of how to assess properly human rights when derogated in the face of national security claims often point out the difficulty of determining what national security means. This ambiguity presents several problems for those who monitor human rights. Wolfers has observed that when political formulas such as "national interest" or "national security" gain popularity they need to be scrutinized with particular care. They may not mean the same thing to different people. They may not have any precise meaning at all. Thus, while appearing to offer guidance and a basis for broad consensus, such formulas may be permitting everyone to label whatever policy he favors with an attractive and possibly deceptive name.
  • The Human Rights Committee and Public Emergencies

    Walkate, Jaap (1982-01-01)
    The implementation of the International Covenant on Civil and Political Rights is vitally important to the development of world public order. The Covenant provides for establishment of a monitoring body-the United Nations Human Rights Committee-which has functioned since 1977 under article 40 of the Covenant and under the Optional Protocol relating to the Right of Individual Petition. Although the mandate of the Committee, as described in article 40 of the Covenant, confers little specific enforcement power, the Committee has developed tactful procedures for engaging States Parties in extensive dialogue on their adherence to their treaty obligations.
  • Methods Of Dealing With Violations Of Human Rights: What Needs To Be Done And Why It Is Not Done

    Hossain, Kamal (1982-01-01)
    The recognition and protection of individual human rights under international law has been attained despite determined assertions of state sovereignty. Nevertheless, the inadequacy of international protection of human rights, as evidenced by the record of state practice, underscores the need to continue this struggle. The immediate task is the establishment of more effective protection of human rights precisely in situations in which states invoke national security to restrict these rights.
  • Human Rights and Political Resolution in Northern Ireland

    Boyle, Kevin (1982-01-01)
    At its heart, the Northern Ireland problem concerns the constitutional and political fate of territory in dispute between the Irish and British states. Reluctantly but from necessity, the two governments must now face the implications of that fact. If there has been any progress during the last decade of violence, it has come in the form of a better understanding of the political and constitutional issues by both governments and peoples. No longer is the situation presented as exclusively one of archaic religious animosity between Protestants and Catholics still fighting the religious wars of the seventeenth century. Nor do the psychological theories that interpret community divisions between majority and minority as simple prejudice enjoy the currency they once did. The problem is now correctly interpreted as a highly complex conflict of identities and nationalisms which implicates both states in its genesis and in its possible resolution.
  • Security of the Person and Security of the State: Human Rights and Claims of National Security

    Jacobs, Michael (1982-01-01)
    In modem times, governments almost invariably invoke the concept of national security to justify restrictions on the rights and freedoms of persons subject to their jurisdiction. The claimed threat to national security varies--external attack or subversion, internal unrest and violence, and economic crisis are commonly cited menaces. Sometimes, governments will claim multiple threats of a highly diffuse nature to justify wholesale suspension of the constitutional order.
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    1982-01-01
  • The Proscribing Function of International Criminal Law in the Processes of International Protection of Human Rights

    Bassiouni, M. (1982-01-01)
    It may appear upon initial examination that international criminal law has little to contribute to the development and protection of international human rights. Close analysis demonstrates, however, that the international protection of human rights can be viewed as a continuum along which criminal proscription has become the ultima ratio modality of protection. Resort to criminal proscription is compelled when a given right encounters an "enforcement crisis" in which other modalities of protection appear inadequate. Yet, the need to find an international or transnational element in human rights violations together with the need to rely on national courts to implement international penal proscriptions present impediments to scrutiny of violations committed by officials of sovereign states. This paper describes how international criminal law facilitates the proscribing function and initiates an inquiry as to its role in a comprehensive system of international protections.
  • Responding to the Crisis in El Salvador: A Public Order Perspective

    Caldeira, Antonio (1982-01-01)
    In the contemporary world, civil wars produce widespread international effects. In the past, limited means of transportation and less sophisticated communications permitted at least a partial insulation of civil wars in places far from the territories of the great powers. Transnational interactions were fewer; people's foci of attention were narrower. Thus, popular demands and identifications were more circumscribed. Scientific and technological advances changed these conditions. International economic actors used new technology to integrate national economies into larger networks and to obtain information about commercial opportunities and risks. Security arrangements were developed to maintain and expand access to the resources and markets that modern industrial economies require. These factors have helped to shape the present world community, which is characterized by increasingly interrelated social processes and equally intricate political and economic interdependence.

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