Vol. 27.3 (December 2015)
Author: Ann M. Piccard
Citation: 27 Fla. J. Int’l L. 333
On September 18, 2014, an overwhelming number of Scottish residents turned out to vote on one simple question: Should Scotland be an independent country? The deceptively simple yes or no question on the ballot could not begin to reflect the complex underlying issues. If the Independence Referendum had been approved—meaning a “yes” vote, the goal of Independence proponents and of the Scottish National Party (SNP)—every facet of life for the Nation and its citizens could have been affected. The presence of nuclear weapons; membership in the European Union; the very nature and name of the currency used in every transaction every day, no matter how large or small; the availability of jobs, pensions, and health and child care; and always—at the true heart of things— ownership of the North Sea oil rights: everything was on the line and reflected in that yes/no ballot question. The debate leading up to the referendum focused incessantly on politics and economics, but rarely on human rights or on the context of the long, ugly history of England’s domination of Scotland and the centuries of disregard for the human rights of the Scots, which was, and will continue to be, the underlying motive for any talk of Scottish Independence. England has been actively seeking to consume and perhaps obliterate Scotland for hundreds of years, beginning (perhaps) with its systematic genocide of the most indigenous Scots, the Highlanders known as the Picts. Atrocities that took place hundreds of years ago do not make the news today, despite the fact that their consequences are ongoing, current, and never-ending. “Those who cannot remember the past are condemned to repeat it.” The purpose of this Article, therefore, is to draw attention and remembrance to the consequences of England’s hundreds of years of human rights violations, particularly violations of civil, political, social, economic, and cultural rights, in Scotland, and to propose that these human rights violations ought to be addressed rather than suppressed regardless of the outcome of the 2014 referendum.
Author: Jarvos J. Lagman
Citation: 27 Fla. J. Int’l L. 357
The right to individual self-determination is a fundamental human right recognized under international law and codified under Article 21 of the Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations in 1948. However, the principle of the sovereign equality of nations gives rise to the presumption of the supremacy of national governments to enforce law within their own political domains and gives such national governments the sole right to determine, in their unmitigated discretion, the structure of their own national political affairs. The conflict in these countervailing policies is problematic, especially in the context of achieving world peace, because, given that international law forms the basis of agreement as to the resolution of disputes between countries, political leaders in countries whose political legitimacy is derived from non-legal, non-democratic sources of political authority are individually vested with sovereign authority without institutional accountability, meaning that such political leaders are not subordinate to the rule of law and are immune from judicial process. At minimum, the conceptual possibility of international law requires the subordination of all people, including political leaders, to the rule of law because “[i]n a rule-of-law state, no one is excluded from the jurisdiction of law, [t]here are no officials who are above the law, and no citizens outside the law.” In the absence of universal subordination to the rule of law, international law is rendered illusory since political leaders who are individually vested with sovereign authority, and who, as a result, are not subordinate to the rule of law, cannot be legally and irrevocably bound by the laws of contract, most notably with regard to compulsory adherence to treaties and other international agreements.
Such political leaders retain the sovereign power to violate international law without legal recourse; both within their own political domains, through sovereign immunity, and outside of their political domains,through the sovereign equality of nations principle. Thus, for international law to be uniformly effective, the essential conflict between the sovereign equality of nations principle, as represented by the vesting of sovereign authority in the persona of individual non-democratically elected political leaders, and the fundamental right to individual self-determination, as expressed through the equal right to take part in democratic elections and the hegemonic recognition of the universal primacy of the rule of law, must be resolved in a manner that harmonizes political systems to adopt democracy and the universal subordination to the rule of law in the ordering of their political affairs, but does so without violating the sovereign equality of nations principle.
The basis of the case for democratizing the United Nations is that transnational elections would operate as an instrument for democratic cultural diffusion through which political systems throughout the world would be harmonized, in the long-run, to adopt democracy and the rule of law as the basis of the authority of government. Because transnational elections to allocate power within the United Nations would not directly change the composition of domestic national governments, the introduction of democratic norms and political practices into nondemocratic countries through the democratization of the United Nations would enable the worldwide diffusion of democratic culture in a manner that would not overtly threaten the sovereign power of existing political leaders nor violate the sovereign equality of nations principle (assuming that achievements in diplomacy would ultimately enable transnational elections to materialize with the unanimous consent of the global community).
This Article is intended to provide a policy framework for encouraging the harmonization of all political systems in the world to adopt the rule of law and democratic principles as the basis for the authority of government. Harmonization in this manner is imperative for two primary reasons: (1) universal subordination to the rule of law is a precondition for the conceptual possibility of international law; and (2) the right to self-determination is a fundamental human right whose suppression is in direct violation of well-established international norms, specifically the Universal Declaration of Human Rights. Through the staging of transnational democratic elections in non-democratic countries, the democratization of the United Nations would catalyze the harmonization of political systems to adopt the rule of law and democratic principles as the basis for the authority of government by utilizing the mechanics of cultural diffusion to install democratic institutional infrastructure in non-democratic countries and expose such non-democratic societies to the rituals of democratic political culture. In the long-run and without directly displacing existing political hegemonies in violation of the sovereign equality of nations principle, cultural diffusion through the democratization of the United Nations would facilitate the harmonization of political systems in a controlled and peaceful manner, as compared to achieving harmonization through coercive mechanisms, such as the use of extra-national military force. Once harmonization is achieved, the conceptual framework for the conduct of international law would be strengthened and the right to self-determination, as based in international law and unencumbered by potential conflict with the arbitrary fiats of individual political leaders who are not subordinate to the rule of law, could be applied in a manner that institutionalizes the formal equality of political opportunity on a global scale and democratizes global policy outcomes.
Author: Chelsea Koester
Citation: 27 Fla. J. Int’l L. 399
Security Council to respond to humanitarian crises is one that has received no shortage of attention. The world has watched as the Security Council has failed to take action to address situations in Kosovo and Rwanda, and more recently in Syria and Ukraine. These failures to act have left the international community scrambling to find alternative ways to respond in the face of international crises.
This note identifies the veto power as the root of the ineffectiveness of the Security Council and examines ways in which this power is used to thwart international action both within and beyond the Security Council. It will then examine a fairly recent response to this inaction, the development of the Responsibility to Protect doctrine, which argues that states have a responsibility to take action in the face of international crises, and evaluate how well poised this doctrine is to respond to this problem.
As an alternate to the Responsibility to Protect doctrine, this note assesses two potential checks on the veto power that are already established in international law. First, the obligatory abstention housed within the U.N. Charter, which limits the ability of a Security Council member to exercise its veto power when it is a party to the dispute being addressed by the Security Council. Second, the Uniting for Peace Resolution, which provides the only possibility of an override of a Security Council veto through General Assembly action. While none of these three instruments provide perfect solution to the longtime problem of the power wielded by the five veto-holding states, I argue that the two options already established within international law, the obligatory abstention and the Uniting for Peace Resolution, are worthy—and even superior—alternatives with which to address this issue and should not be overlooked. At a minimum, they present a useful tool for serving to legitimize actions taken pursuant to the Responsibility to Protect doctrine.
Author: Jessica Embree
Citation: 27 Fla. J. Int’l L. 399
“I saw the rubber bullets and the shields and the sticks. My sons were crying. I never thought this forced eviction would happen. I never believed that they would send in the armed forces to destroy community property. But at the end it happened differently.” These were the words uttered by a Cambodian civilian after 300 police officers dressed in full riot gear, armed with guns and other weapons, escorted 500 demolition workers into Phnom Penh, Cambodia and forcefully evicted 400 families from their homes on January 24, 2009. This forced eviction, as well as many other evictions in Cambodia that have occurred since July 2002, was the result of a massive land concession deal3, also known as landgrabbing.
Land-grabbing has been academically defined as “large-scale, crossborder land deals or transactions” between a State concessioner and a concessionaire regarding the lease or concession of land for various purposes. It is important to note that while a land concession deal may grant exclusive rights to the concessionaire, it does not grant full ownership rights—rather, the land remains the property of the State concessioner. While the roots of land-grabbing in Cambodia date back to French colonial times,7 as of 2000, 770,000 Cambodian people, or 6% of Cambodia’s total population, have been forcefully evicted from their homes to clear land that has been conceded by the Cambodian government; this includes 145,000 people forcefully evicted from their homes in the capital city of Phnom Penh. At least 4,000,000 hectares of land have been confiscated and conceded by the Royal Government of Cambodia (Government), equating to about 10,000,000 acres and 22% of Cambodia’s total land area. In the past few years, many land concessions have been contracted to both domestic and foreign private companies for large-scale agriculture, mining, and infrastructure, among other things.
In some instances, Cambodia’s ruling elite teamed up with foreign investors from Thailand, China, and Vietnam to create sugar or rubber plantations, as well as logging operations. In many instances, armed Cambodian police and military officials have been deployed to protect the interests of concessionaires by clearing the land of Cambodian civilians; in an increasing number of incidents, the armed state personnel have fired weapons in their confrontations against protesting civilians who defiantly oppose the taking of their land. Notably, even civilian deaths have been reported as a result of the Government’s excessive use of force. Those who survive after eviction face dismal conditions in resettlement camps that are ripe with disease and food insecurity. In addition to their land and housing rights being violated, evicted and displaced Cambodians also frequently suffer other human rights violations – including the right to education, health, decent work, and participation in public life. Incidentally, many displaced Cambodians, land activists, and human rights defenders have been criminally charged and imprisoned for their peaceful protests and involvement in land concession disputes.
Notwithstanding recent calls for reform, the Government has continued to grant large land concessions at an increasing and appalling rate; many of the concessions are given from land that is inhabited by indigenous communities, including land that is classified as protected areas and forests. Despite the recent international scrutiny and demand for policy change, there has been and continues to be a lack of transparency in the reporting of land concession deals by the Government. In response to the widespread land-grabbing in Cambodia and its adverse effects on human rights, a “group of individual and independent Cambodian victims,” through the help of an international lawyer, have filed a Communication before the International Criminal Court (ICC) in an effort to have the Office of the Prosecutor (OTP) initiate an investigation. Garnering the support of over forty civil society organizations from around the world, the Communication alleges that the “Ruling Elite” has committed a widespread and systematic attack against Cambodian civilians that amounts to the following crimes against humanity: murder, forcible transfer, illegal imprisonment, other inhumane acts, and persecution.
The remainder of this Article will focus exclusively on the allegation of forcible transfer and will argue for ICC involvement in investigating and prosecuting the parties responsible for the land-grabbing crisis in Cambodia. Part II will trace the historical roots and identify the driving forces of land-grabbing. Part III will examine the land ownership rights given by the Cambodian government to individuals and to indigenous communities within Cambodia, the legal framework and procedures surrounding Cambodian land concession deals, and methods of redress for Cambodian land right disputes. Part IV will discuss in part the ICC and how the land concession crisis in Cambodia qualifies as a crime against humanity, but will also argue for ICC involvement in Cambodia.
Author: Melanie Franco
Citation: 27 Fla. J. Int’l L. 421
At ten years old, Moe was raped by her stepfather and sold to his friends. At the age of 14 she ran away from home, fell into drugs, and dropped out of high school. Moe managed to return home at 17, thanks to the help of a relative in the police department. Moe explained that she had met two women who offered her a place to stay but ended up forcing her to sell sex to middle-aged men who would pay in cash and drugs. Moe was a child prostitute in the United States, which is a form of human trafficking under the federal Trafficking Victims Protection Act and under international law. Human trafficking, a form of slavery, is an international crisis affecting 27 million people worldwide. There are several laws in place to combat human trafficking, both on an international scale and within individual nations. Each effort can fall into one of four conceptual and legal frameworks: law enforcement, human rights, women’s and children’s rights, and labor rights. The law enforcement category focuses on trafficking as a violation of criminal laws, the human rights framework focuses on trafficking as a violation of the individual’s established human rights against slavery and exploitation. Labor rights and women’s and children’s rights are specialized categories within human rights. Each of these perspectives is lacking because they only focus on one aspect of the problem. The law enforcement framework “is excessively prosecutionfocused,” with little focus on prevention and is dependent on the “innocent victim.”11 The human rights frameworks focus on international instruments that provide rights to the individual, but lack the ability to do anything to prevent trafficking or to help the victim whose rights have been violated.12 “Each of the [international] instruments suffers from inadequate enforcement and the limited ability of the applicable monitoring bodies to assess or impose meaningful sanctions or to grant relief.”
If the international human rights perspective takes the right approach to combat human trafficking but is lacking the necessary enforcement, then individual nations need to be the ones to implement international laws domestically. Perhaps then we will see a concerted effort and united front to combat human trafficking across nations worldwide. This applies particularly to the United States in the way it fails to comply with international law and yet holds other countries to its own standard. This problem becomes evident in the context of decriminalizing sex trafficking victims. Sex trafficking often looks like prostitution, making it difficult to decipher between victims and willing participants. When it comes to children under the age of 18, there is consensus on the international and
domestic level that the participants will automatically be treated as victims. But adults over the age of 18 do not have that same luxury.
International law is clear in its intention to combat human trafficking and the United States is right behind it in its efforts. However, the United States is continuously falling short, particularly in this area of criminalizing victims. This is partly because states and their legislation are not aligning with federal legislation. This then causes problems on the international level because U.S. laws are not aligning with U.N. laws. The United States continues to patrol other countries’ efforts to combat human trafficking, even though it is itself in violation of international law. What we need is a unified effort and consensus between the United Nations and individual States to agree on how to approach human trafficking and how to end it.
Part I begins with an introduction to human sex trafficking, defining the problem and shining light on some statistics. Part II identifies and analyzes the elements of sex trafficking. Part III examines the international and domestic legislation in place and the differences in how each treats the criminalization of victims. Part IV analyzes the methods to monitor national efforts against human trafficking. Part V proposes the solution of allowing international law to be implemented and enforced nationally in order to effectively fight human trafficking.
Author: Andres R. Cordova
Citation: 27 Fla. J. Int’l L. 441
Petitioner sought to have the Supreme Court equitably toll the one year period for seeking return of his abducted child under Article Twelve of the Hague Convention of International Child Abduction (Convention). Petitioner filed in district court for the immediate return of his child to the United Kingdom. Article Twelve of the Convention mandates the return of an abducted child when a parent files a petition for the child’s return one year or less from the date of abduction. After the one year period, the courts must order the child’s return unless the child has become settled in its new environment. Petitioner contended that the concealment of his child by Respondent was an extraordinary circumstance that prevented him from filing within a year of the child’s abduction. The district court denied Petitioner’s petition because the one year period in Article Twelve had expired, the common-law doctrine of equitable tolling did not apply to the one year period, and the child had become settled in the United States. Petitioner appealed the district court’s decision to the Second Circuit, which affirmed. Petitioner then appealed to the Supreme Court of the United States, which granted certiorari in order to determine whether Article Twelve’s one year period is subject to equitable tolling. HELD, Article Twelve’s one year deadline is not subject to equitable tolling because equitable tolling is contrary to the intent of the parties to the Convention.
Citation: 27 Fla. J. Int’l L. 163
This Article seeks to ascertain the following: how specific should the charges in an international crimes case be, which circumstances play a role in answering this question, and what influences specificity, or the lack thereof? The focus is therefore on case demarcation in light of an investigation or case against an identified suspect or accused and centers on the indictment phase of criminal proceedings. It does not include investigation demarcation in the sense of prosecutorial discretion regarding determining who to investigate or indict. Case demarcation can only take form and be examined fruitfully once a suspect or accused has been identified.
Investigations of a preliminary nature into situations of mass atrocity, which face prosecutors with complex questions of which potentially responsible persons to focus investigative and prosecutorial efforts on lie outside the ambit of this Article. The law and practice of amending charges is also excluded. Although related, it is beyond this Article’s query, because it does not pertain to factual and evidentiary case demarcation in the strictest sense, as it should take form at the indictment stage. Rather, it relates to subsequent procedural matters of shifting boundaries, not placing them.
Part II starts with reviewing the issue of vague indictments as dealt with by the historical Nuremberg, Tokyo, and Control Council Law No. 10 trials, as well as case law from the modern day U.N. tribunals and the ICC regarding ambiguous charges and general pleading principles. This is the first type of case demarcation, which focuses on factual specificity. Part III deals with the second type of case demarcation, which may be regarded as legal demarcation of evidentiary matters, and that has never before been examined in international criminal justice scholarship. It deals with various types of facts and evidence and the importance of distinguishing them, and explores the differences between material facts and subsidiary facts, pattern evidence and evidence of similar conduct.
Part IV highlights the defense’s perspective by looking at the right to be put on notice, a number of related rights and the principle of ne bis in idem, also known as double jeopardy protection. The analysis of these three issues shows that courts have developed relatively sound pleading principles over the last decades, but have mostly ignored the issue of evidentiary precision in the sense of consistently distinguishing different types of evidence and facts.
Citation: 27 Fla. J. Int’l L. 213
On November 28, 2010, the Law and Administration (Annulment of the Application of the Law, Jurisdiction and Administration) (Amendment) Law, 2010 (Referendum Law) was endorsed and published in Reshumot (the Official Governmental Journal) by the Israeli Parliament (Knesset), and thus entered into force as a binding law. The law was enacted as an amendment to an earlier legislation called “The Law and Administration (Annulment of the Application of the Law,
Jurisdiction and Administration) (Amendment) Law, 1999” (Golan Heights Entrenchment Law), which granted the executive branch in Israel the power to make decisions regarding the annulment of the law, jurisdiction, and administration of the State of Israel over the Golan Heights, together with its power to relinquish this area subject to a binding referendum, held in accordance with a Basic Law on referendum, to be enacted later on by the Knesset. In other words, the Golan Heights Entrenchment Law was declaratory; thus calling upon the need to enshrine such referendum apparatus in a Basic Law enactment.
In this Article, I aim at discussing the question whether it was necessary to enact the Referendum Basic Law instead of, or in addition to, the Referendum Law in order for the Knesset to incorporate the referendum system as a binding mechanism in the Israeli law, or so preferable as argued by the Knesset and the Government before the HCJ. In addition, I purport to discuss the inadequacy of the referendum system to legal systems of constitutional democratic features, regardless of the question whether such a system was adopted by an ordinary legislation or enshrined in a constitutional amendment. It is worthwhile to remember that due to the Court’s remarks, the latter argument was omitted from the petition and accordingly was not discussed at all before the Court.
In the first Part of the Article, I provide a broad normative survey of the entire legal infrastructure, in the light of which the constitutionality of the laws on referendum must be examined. Further, I examine the status of the substantive principle of the rule of law, as a binding normative legal principle and not merely as a declarative interpretive principle. Subsequently, I present the constitutional pillars upon which Israel’s Basic Laws rely. In this connection, I also discuss the HCJ’s power for judicial review, including the mandate to invalidate unconstitutional laws. This constitutional debate necessarily entails an examination of the constitutional mechanisms for amending Basic Laws in Israel and the way in which protected fundamental rights may be violated. This discussion in turn requires scrutinizing the primary concepts that underlie the most basic legal principles on which the legal regime in Israel is founded—both in terms of the civilian and political identity of the State, and in terms of the relationship between the central branches of the State (particularly, the legislative and executive branches), and the role of the People as the sovereign in this relationship.
In the second Part of the Article, I engage in a concrete legal debate regarding the constitutionality of the laws on referendum, led by the basic principles, as described in the first Part of this Article. Finally, in the third Part, I summarize the issue by indicating the constitutional legal grounds that undermine the constitutionality of the laws on referendum. Ultimately, this constitutional scrutiny of the laws on referendum leads to one conclusion, namely, that these laws are unconstitutional, and, as such, are void ab initio. This conclusion results not only from the fact that the laws on referendum completely contradict the constitutional system in the State of Israel—in relation to the amendment of basic legislation—but also from their inherent contradiction to the substantive principle of the rule of law. As such, they afflict a fatal blow to the protected basic rights of its citizens in general and of the Arab citizens of Israel, as a national minority, in particular, all the more so Israel’s Arab residents of the Golan Heights and East Jerusalem. Among the violated fundamental rights are: the right to vote, the right to be elected, the right to dignity and the right to equality. Thus, the laws on referendum undermine the extremely delicate political, legal, and constitutional balance on which the State of Israel was founded and in which light its legal tradition was developed.
Citation: 27 Fla. J. Int’l L. 261
The purpose of this Article is to demonstrate that while human rights considerations can play an important role in the WTO, such considerations cannot play an excessive role in WTO affairs. As a specialized international body devoted to trade, the WTO must accord its place of pride to trade. Unless the current framework of the WTO is modified, trade will and should be the focal point of the WTO’s energies. Indeed, for the sake of institutional integrity and continued stability, it is preferable for the WTO to retain its narrow focus.
Citation: 27 Fla. J. Int’l L. 297
This Article provides a proposed method for instituting a federal takedown remedy for a state tort without subjecting ISPs to liability. This proposed solution effectively balances a successful mechanism for remedying harm caused by cyber misconduct with allowing free speech and the continuing growth of the Internet as a popular medium for communication.
Part II examines the unique aspects of the Internet, provides a brief background of traditional defamation law, and discusses the current obstacles to recovery victims of cyber defamation encounter under § 230. Part III reviews the background of the CDA, judicial interpretation of
§ 230, and the growing dissatisfaction with the broad interpretation of § 230. Part IV studies the background of U.K. defamation law, the influence of the E.U. Electronic Commerce Directive on the creation of the U.K. Defamation Act 2013, and analyzes the pertinent sections of the U.K. Defamation Act 2013. Part V presents a proposed solution and framework for amending § 230 to include a federal takedown remedy.
Part V also addresses jurisdictional or other potential concerns that could arise in response to the proposed solution.
Citation: 27 Fla. J. Int’l L. 1
In October 2013, U.S. Secretary of State John F. Kerry wrote a scathing argument in Foreign Policy decrying Syrian President Bashar al-Assad’s use of starvation as a weapon of war. The world already knows that Bashar al-Assad has used chemical weapons, indiscriminate bombing, arbitrary detentions, rape, and torture against his own citizens. What is far less well known, and equally intolerable, is the systematic denial of medical assistance, food supplies, and other humanitarian aid to huge portions of the population. This denial of the most basic human rights must end. . . .
The purpose of this Article is to convince policymakers that the achievement of an interim nuclear agreement with Iran should not be seen as a mandate on the effectiveness of economic sanctions, and that further use of economic sanctions is not worth the public costs to targeted nations or the United States. First, this Article will explain the basic uses and legal provisions for economic sanctions. Second, this Article will detail the public costs that economic sanctions can inflict on the United States and on the nations it targets. Lastly, this Article will explain the interim nuclear agreement with Iran, and why the apparent success of the economic sanctions imposed on Iran do not justify the continued use of economic sanctions.
Citation: 27 Fla. J. Int’l L. 23
In Spring 2014, Human Rights Watch published a report on approximately 40,000 children who live in institutional care in Japan. The report provided an unvarnished account of the fact that it is often the wishes of Japanese biological parents that keep children trapped in orphanages, insofar as national law allows these parents to exercise parental rights long after having ceased to act in any meaningful parental role of care-giving. For those who follow the law and politics of the “social orphan” debate, this report was of the utmost importance. After publishing path-breaking reports on children living in institutions in Russia and China in the mid-1990s, Human Rights Watch had mostly gone silent on the issue of children living out of family care and institutionalized children. This may have been in part due to the fact that the topic is so politically contentious, and that identifying such children implies some action to be taken on their behalf—a subject that inevitably proves controversial.
The 2014 report emphasizes the fact that when parents in Japan are found unwilling or unable to care for their children, the main mode of alternative care available is institutional care. Japanese orphanages bear little resemblance the Soviet style orphanages of popular imagination—nevertheless, life in the Japanese child welfare institution creates a separate population, isolated and deprived, with few routes out of the system into normal life. National law has little to say on the issue of terminating parental rights in a way that might allow the children to establish alternative legal ties with a new family.
Citation: 27 Fla. J. Int’l L. 65
For decades academics and the International Development Community (most notably the World Bank) have been telling NGOs, Western leaders, and those in charge in developing states that the way to attract Foreign Direct Investment (FDI) is by “changing” the legal system. The change they talk of is more than a simple fix here or there but rather an institutional overhaul of the system. This is especially true for countries without common law legal systems. However, what the World Bank and the International Development community fail to note is the time, cost, and gravity of the changes they propose. The fact is that on paper the theory of the “Rule of Law” seems great—help rid the state of corruption, shorten the duration of disputes, and decrease the cost of disputes. However, as those outside the academic community are well aware, a theory or philosophical idea does not necessarily translate into real world success.
The cost to overhaul a legal system is astronomical. For example, before and after the fall of the Soviet Union in the 1980s several states received billions of dollars in loans to help change their “legal systems” and make them more western friendly. A couple of these states were West Germany and Japan, which received roughly 1.5 billion and 2.4 billion USD in loans. Considering most of this money was given in the 1950s, the value today is probably three times or more those amounts. Without this aid, both states would have been unable to make the changes to their legal and judicial institutions necessary for FDI and renewed economic health. Additionally, neither state was able to completely repay their loans and had large sums forgiven. This is revealing considering states such as Germany and Japan, known as first world states, were unable to completely repay such loans without help. The question then becomes how do states outside the first world afford the cost?
Citation: 27 Fla. J. Int’l L. 91
Despite the legal basis for education and the commitment by the World Bank and others, women’s education is still contested ground. While the denial of education seldom reaches the extremes of the Nigerian girls or Malala, there are several cultural, political, and economic factors at play. No one approach to girls’ education has proven adequate. The EFA goal of ensuring gender equality in education by 2015 will not be met. Because of this it is time to rethink exactly what we are trying to achieve and why. In this Article I propose a solution of how to achieve gender equality in education by 2030. I propose that the World Bank use its funding to enforce the human right to education found in the major human rights treaties. Part I of this Article looks at the justiciability of human rights and domestic law and how to fund compliance with law. Part II looks at human rights and capabilities, Part III looks at primary education, Part IV looks at secondary education, and Part V looks at cultural barriers to education.
Author: Marissa A. Mastroianni
Citation: 27 Fla. J. Int’l L. 121
During the Clinton administration, the United States took an approach of “constructive engagement” in an effort to incorporate China in international institutions. Scholars have argued that the goals underlying the policy include strengthening the influence of international institutions and shaping China’s behavior to conform to the Western values these institutions represent. The policy was altered during the Bush administration when Deputy Secretary of State Robert Zoellick “called on China to become a ‘responsible stakeholder’ of the international community.” In that speech, Zoellick listed several changes China must make to its regime and foreign policy in order to become a responsible stakeholder. It seems that the United States has gotten part of what it wished for; China has become highly involved in international organizations and, in particular, the Security Council. The PRC has sought to project an image of being a responsible power and ease any fears of China’s growth in economic and military strength. In 1997, President Jiang Zemin recognized that China requires a peaceful international environment to support its development. The term “peaceful rise” was coined by an advisor to President Hu Jintao in 2003 to explain China’s emergence on the world scene and its desire to secure a stable environment conducive to growth. However, one question remains: does this new strategy of active involvement in peacekeeping operations signal that China is conforming to Western values?
This Article answers in the negative. China’s values are changing in a more nuanced way. This Article argues that Chinese values appear to be aligning more toward values underpinning the United Nations and the Security Council as expressed by the U.N. Charter, which are similar in some ways to Western values and distinct in others.
Citation: 26 Fla. J. Int’l L. 373
It is hard to ignore that religious intolerance is a global problem, touching every corner of the world as various religious minorities struggle to worship their faith with dignity and peace. Whether it is Baha’i leaders imprisoned in Iran for opposing theocratic rule or sectarian violence targeting Shia Muslims in Pakistan, religious minorities everywhere exist in precarious environments where practicing one’s religion can be a dangerous proposition. One religious minority group that is often overlooked in the discussion of international religious freedom is Christians. The past few years have seen an alarming rise in the persecution of Christians around the world, vividly demonstrated by the events in Egypt described above. International law provides a framework to review the global persecution of Christians, namely customary international law and international treaties such as the International Covenant on Civil and Political Rights, as well as regional conventions. Before the international community can combat the global persecution of Christians, it is necessary to better understand how such persecution violates international human rights law.
This Article will first define Christians as a religious minority by looking at their status in a particular region—the Middle East/North Africa region. Next, the Article will define the contours of religious rights and protections under international law by reviewing the framework of international treaties and declarations promulgated by the United Nations and regional organizations. Then, it will review the persecution of this group highlighted in three key areas: (1) group rights; (2) individual rights; and (3) violent persecution and expulsion. This Article will end with an argument for increased efforts of enforcing current customary law and treaties, as well as creating new paradigms and measures to resist the persecution.
Citation: 26 Fla. J. Int’l L. 399
Law is not a natural language, but learning to speak and write about the law is like learning a language. Even highly educated, native speakers of English (now NSs) go through a process like language acquisition when learning U.S. law. As part of this process, they learn the phonology, a new lexicon, and the various discourse expectations for speaking and writing about U.S. law—expectations that tend to vary by register and genre (e.g., from appellate briefs and court etiquette to emails and conversations with clients). Over time and with effort, successful law students develop the necessary competence to navigate these nuances and join the “U.S. legal discourse community.”
Citation: 26 Fla. J. Int’l L. 447
The extraterritorial use of Remotely Piloted Aircrafts (RPAs), more popularly known in the media as “drones,” in targeted killings is rapidly increasing, in the number of countries resorting to this use of force, the locations where countries conduct the operations, as well as in numbers of operations by those countries. The United States, the United Kingdom, and Israel rely on existing legal principles to justify their RPA targeted killing operations. The way these countries are interpreting and applying the legal principles will likely shape the future of RPA operations by other countries. This Article is an exploration of how the three countries interpret and apply international law to their RPA targeted killing operations, in an attempt to capture the similarities and distinctions, and to provide insight into how best to answer the criticisms levied at the operations and improve their legality.
Citation: 26 Fla. J. Int’l Law 531
The 1951 Convention Relating to the Status of Refugees (1951 Convention) is the centerpiece of the current system of international protection and is almost unique in its level of acceptance by states. Its key definitional clause, article 1(A)(2), extends refugee status to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.
It is widely believed that this passage extends refugee status only to persons with a well-founded fear of persecution. Since this is the central inclusion clause of the 1951 Convention, it is therefore widely believed that a well-founded fear of persecution is a necessary condition for status as a Convention refugee, for persons with a nationality as well as those without one. This view is expressed in the preponderance of contemporary scholarship, and it is often taken for granted in judicial interpretation and asylum practice. This view is so entrenched that, for example, the literature on whether climate change displaces might count as 1951 Convention refugees is primarily about whether climate change counts as persecution.
Our aim in this Article is to challenge this standard interpretation in its application to some stateless persons. We shall argue that the clause of article 1(A)(2) following the semicolon and pertaining to stateless persons, makes room for a certain class of stateless refugees who are not persecuted. The issue turns on the interpretation of the phrase “unable to return.” According to the standard interpretation, “unable to return” applies in a very wide range of ordinary cases of statelessness, even to those whose inability is temporary. For this reason, proponents of the standard interpretation of the 1951 Convention assume that, despite the text failing to make this clear, some further restriction must apply to persons who lack a nationality and are unable to return if they are to count as refugees: they must in addition have a well-founded fear of persecution.
Our interpretation instead takes “unable to return” to have a far more stringent meaning than is usually supposed, specifying a more permanent condition that many stateless persons do not meet, but which suffices for refugee status for stateless persons who do meet it. On our interpretation, “unable to return” as it occurs in the clause following the semicolon must be understood as a legal term of art that signals irreparable, fundamental inability, rather than mere difficulty or complication with the paperwork.
On our interpretation there is no need to read any restriction to persecution into the clause following the semicolon for those unable to return, but it does not follow that all displaced stateless persons are refugees. Also, on our interpretation, but not the standard interpretation, the object and purpose of the 1951 Convention is in harmony with its ordinary meaning, and the complementary relation between the 1951 Convention and the international protection regime is clearer. Finally, though there is a superficial tension between our interpretation and state practice, no municipal court or regional agreement explicitly rules against our interpretation of the 1951 Convention, meaning that there is no deep tension.
Citation: 26 Fla. J. Int’l L. 223
Jerusalem is the capital city no one recognizes. Deeply tied to each of the world’s major monotheistic religions, access to its major spiritual sites has been protected by regimes as diverse in time and circumstance as the Ottoman Empire, the Western European powers occupying it either as colonizers or stewards, and the modern States of Israel and Jordan. The critical role it plays for the world’s religious adherents (together, Christians and Muslims account for roughly half the global population) explains its status under international law and the challenges modern governments face in reconciling effective Israeli control of the city with its regional and global significance. U.N. General Assembly Resolution 181 provided for the separation of the British Mandate of Palestine into Jewish and Arab states and carved out Jerusalem as a corpus separatum under the sovereignty of no state. That policy effectively captures the foreign policies of most states today, which not only refuse to acknowledge Israeli sovereignty over East Jerusalem, which it occupied, annexed and expanded in 1967, but also West Jerusalem, which it has held since shortly after its founding in 1948.
Since Israel’s establishment, the United States has acted consistently with Resolution 181 and its general vision for peacefully coexisting Arab and Jewish states in the land between the Mediterranean and the Jordan River, although the borders and character of those states have evolved over time. The United States has similarly refused to prejudice Jerusalem. It recognizes no state’s sovereignty over either West or East Jerusalem and maintains a consular presence there separate from the activities of the Ambassador to Israel located in Tel Aviv. This Article argues that U.S. policy toward Israel/Palestine in general and Jerusalem in particular is changing to allow greater flexibility toward the political realities that may confront both the city and the countries that surround it.
Analyzing presidential speeches on Jerusalem from Clinton to Obama as well as litigation embodying congressional-presidential disagreement over the city, this Article concludes that U.S. policy, while still technically adhering to the two-state solution, has openly if quietly acknowledged that the window for two states is closing if it has not closed already. If the Palestinian movement for self-determination changes from one sounding in international law and the language of sovereignty to one situated within the context of civil rights and equal treatment with Israelis, the United States may face, and is preparing to face, a single political entity with significant Arab and Jewish populations. Jerusalem is already a microcosm of this reality, with its Arab residents increasingly electing Israeli citizenship, voting in municipal elections, and integrating into Israeli institutions of higher education.
Citation: 26 Fla. J. Int’l L. 271
Aside from interpretations of the substantive law, the level of private antitrust enforcement in both the United States and the European Union is a function of a number of factors. The most important of these are: (1) The availability of punitive or exemplary damages; (2) The possibility of recovering attorney’s fees; (3) The difficulty of creating a class of plaintiffs or of obtaining collective redress; (4) The ease of discovery; and (5) Definitions of what qualifies one to bring a private action. This discussion is about the last of these—eligibility or, in the language of U.S. antitrust law, standing. Eligibility or antitrust standing alone, however, is a relatively empty notion as far as having an impact on the actual level of private actions. Consequently the focus here is more operational and adopts the concept of “functional standing.” More specifically: What is the likelihood that private enforcement will be a significant force with respect to antitrust enforcement? Functional standing is dependent upon standing in the formal sense—a procedural component—and expected or likely damages—a substantive component.
To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow from federal courts’ interpretations of the Sherman Act and the Clayton Act. Because this is all federal law, general statements are more appropriate. In the European Union, the substantive antitrust provisions are those found in the Treaty on the Functioning of the European Union. Procedural requirements as they pertain to private actions are determined by national courts. Consequently, any general statements about the eligibility or standing are more problematic.
Indeed, one of the issues faced by the European Union is achieving some uniformity with respect to eligibility issues. Nevertheless, as a general matter, there seems to be little question that Europe as a whole is struggling with the eligibility question and whether private enforcement is destined to be a significant factor. Official statements favor greater private enforcement, but the actual incentives for bringing private actions are not compelling. In fact, efforts in the European Union to make compensation broadly available seem destined to have little impact.
Part II sets out the basic legal analysis of “functional eligibility” in the United States and the European Union. Private enforcement, however, is only relevant with respect to specific goals. In antitrust, those goals are compensation and deterrence. Thus the question is: How do two different approaches to functional standing advance two goals that themselves are not always consistent? The purpose of Part II is to describe the two models sufficiently to then apply them to different standard antitrust violations. It concludes the E.U. system, as currently constructed and likely to exist in the future, does not have and will not have a private regime of enforcement that advances either goal. In Part III, this is illustrated in the context of specific economic models.
Two important qualifying notes are in order. First, this offering is about private enforcement only. In both the United States and the European Union, the overall impact of enforcement efforts will be determined by both public and private actions. Weak private enforcement can be offset by strong public enforcement and this applies to both the compensation and deterrence goals.11 Second, the discussion also does not consider the varying impacts of different policies in individual E.U. member states. The impact of efforts to expand functional standing in any member state will be affected by the availability of collective redress in that state and punitive damages.
Citation: 26 Fla. J. Int’l L. 291
Freedom of speech is the most important right persons have in nations claiming to be democratic, respect human rights, and follow the rule of law. Other rights matter little without it. For example, if a government imposes an agricultural policy that causes a colossal famine and ordinary citizens lack freedom of speech to expose and stop it, then whatever economic or subsistence rights those citizens have are negated by this lack. Such a tragedy befell the People’s Republic of China (PRC) from 1958 to 1962 when an estimated 30–45 million people starved to death during the Great Leap Forward.
Citation: 26 Fla. J. Int’l L. 331
The disagreement between Peru and Chile concerns the delimitation of the borderline between the maritime zones of these two States in the Pacific Ocean, opening at a point on the coastline named Concordia. The dispute also encompasses the recognition of a large maritime zone, in favor of the Republic of Peru, which is located within two hundred nautical miles of Peru’s coastline, and thus, is associated with Peru. However, Chile contemplates the zone to be part of the high seas. In order to understand such dispute we should first appreciate its historic upbringing, particularly the significance of the War of the Pacific, and the quality of their relations since then.
Author: Ashleigh R. Shelver
Citation: 26 Fla. J. Int’l L. 347
Over the last several decades, the public has shifted its concern for local environmental issues to international environmental issues. This shift in public concern can be attributed to the increase in global pollution as the world industrializes. With this shift, there has been a sudden increase in the number of multilateral environmental agreements (MEAs) entered into amongst the nations of the world to address rising global pollution. Current MEAs cover numerous environmental issues, ranging from the seas and migratory species to hazardous wastes and chemicals, and include multiple states as parties. The adoption of MEAs evidences a consensus among the international community that environmental issues must be addressed. While the adoption of MEAs is a positive and critical step toward protecting the environment on a global level, the adoption of MEAs is only one step in a large process. It is estimated that there are approximately 900 international agreements currently in effect that address environmental issues in whole or in part. However, despite the drastic increase in the number of MEAs entered into in recent years, “the ecological problems that these treaties were meant to solve persists.” Thus, the creation of MEAs alone has not served to protect the international environment, but has only shown that the international community agrees that certain environmental issues must be addressed.
Citation: 26 Fla. J. Int’l L. 1
Despite the fact that the Rome Statute contains a provision that clearly violates customary international law by subjecting nationals of non-consenting, non-party States to the terms of a treaty to which they have not acceded, attempts to bring nationals of such States before the ICC for investigation and possible trial—via that very provision—are ongoing. In 2009, for example, despite the fact that Israel is not a State Party to the Rome Statute, the Palestinian Authority (PA) submitted a declaration to the ICC Registrar, in which it purported to accede to the Rome Statute pursuant to Article 12(3). It did so in an effort to bring Israeli soldiers and government officials within ICC jurisdiction, inter alia, for alleged crimes committed in the Gaza Strip during the 2008–09 Israeli military incursion known as “Operation Cast Lead.” More recently, the Union of the Comoros filed a referral with the ICC Prosecutor, requesting that the Office of the Prosecutor (OTP) investigate and (ultimately) try Israeli soldiers for their alleged unlawful actions during the 2010 boarding of the Mavi Marmara, at the time a Comoros-flagged vessel, which was attempting to breach Israel’s naval blockade of the Gaza Strip.
Irrespective of the truthfulness or falsehood of the allegations of criminal wrongdoing in the above examples, the ICC is not the correct forum when nationals of a non-party State to the Rome Statute, like Israel, are involved, absent such State’s express grant of its consent thereto, consent which Israel has not granted—and is unlikely to grant. This Article is divided into three parts. Part I traces the development of international criminal tribunals, culminating in the creation of the ICC. Part II examines the nature of the ICC as a court of limited jurisdiction under the Rome Statute. It also introduces the reader to Article 12(2)(a)—the provision that explicitly grants the ICC jurisdiction over the nationals of non-party States. Part III argues that such jurisdiction is unlawful and that current attempts to broaden the meaning and reach of the Rome Statute constitute an assault on unambiguous international custom. This Article concludes with a call to uphold the rule of law by recognizing the ICC’s status as a court of limited jurisdiction and to reject the attempt reflected in the Rome Statute to expand its reach in violation of customary international law.
Citation: 26 Fla. J. Int’l L. 25
In March 2013, the notorious general of the Congolese M23 rebel group, Bosco Ntaganda, gave himself up to the ICC—rendering the issue of augmented sentences for sex crimes against children particularly timely. Ntaganda, known as “The Terminator” due to his ruthless treatment of soldiers and civilians alike, was charged in two separate arrest warrants with conscripting child soldiers, rape, murder, and other war crimes and crimes against humanity. The Court’s arrest warrants do not specifically allege sex crimes committed against children; however, given Ntaganda’s well-documented practice of recruiting child soldiers, the fact that female child soldiers are often used as sex slaves, and the plethora of accounts of rape committed by Ntaganda and his accomplices, it is likely that the Court will find Ntaganda complicit in and/or directly responsible for sex crimes against children. If the Court were to establish a judicial rule requiring harsher sentences for perpetrators of sex crimes against children in a case decided before Ntaganda’s, that opinion could be considered by the Court when sentencing him. If no such rule has been established by the time Ntaganda is sentenced, his case provides the perfect opportunity for the ICC to create one. Given the trend in armed conflict today of targeting children with rape, Ntaganda will certainly not be the last defendant to appear before the court accused of committing such crimes.
Part II of this Article will provide a brief summary of the situation in the Democratic Republic of the Congo (DRC) as an illustration of the kind of conflict where enhanced sentencing for sex crimes against children is necessary. Through an analysis of the case of Thomas Lubanga, Part II will show not only that an enhanced sentencing provision is necessary, but that the ICC has already laid the groundwork for such a judicial rule. Part III will discuss the theory behind augmented sentences for sex crimes against children, providing a brief summary of prevailing theories of criminal punishment and applying these theories to explain why augmented sentences are warranted. In particular, I will argue that this “augmented sentence rule” is warranted under the retributivist theory of criminal punishment, as the crimes to which the rule would apply have much graver long term consequences for children than they do for adults.
Finally, Part IV of this Article will propose a rule which would be established through an ICC judicial opinion, and which would require the judges to specifically take into account the child status of victims when considering the “gravity of the crime” (as directed under Article 78 of the Rome Statute). This new judicial rule would require the sentence for sex crimes committed against children to be greater than that for an identical crime committed against an adult. Part IV will end by looking at how the hypothetical new “rule” could be applied to the case of Bosco Ntaganda specifically and to the situation in the DRC generally.
Citation: 26 Fla. J. Int’l L. 51
It is a proposition frequently asserted—sometimes argued in the tenor of self-evident truth—in contemporary international economic law scholarship that WTO law is always instructive for international investment law. The proposition seems intuitive when one visualizes a straightforward transactional linkage between trade and investment. Intra-firm transnational trading, for example, simultaneously involves issues of inter-State foreign market access (between the State of the parent firm and the State of the affiliate firm), as well as the establishment of an investment in the host State (through the creation of the affiliate firm responsible for direct operations).
Viewed from fundamental principles of economics, however, the trade-investment relationship might not seem as immediately obvious. Modern neoclassical trade theory uses the Ricardian theory of comparative advantage and the basic factor proportions model to show how the incentive structure (and thus, the decision to trade or exchange) depends on factor intensities and resource endowments between States (e.g., the relative capital/labor ratios in two States in relation to the bundle of commodities produced). Theories of foreign direct investment (FDI), on the other hand, attribute firms’ decisions to invest abroad to either of the following: (1) the nature of business operations in a production cycle (e.g., innovation, growth, maturity and decline); (2) the effect of exchange rates on imperfect capital markets (e.g., stronger currencies tend to reduce the volume of FDI); (3) the processes of internalization (e.g., FDI occurs when firm-specific advantages outweigh the costs of outsourcing operations abroad); or (4) the eclectic theory of firms’ advantages (e.g., ownership advantages, location advantages, internalization advantages) that create a sufficient incentive for foreign direct investment, as opposed to other transactional options available to such firms.
Citation: 26 Fla. J. Int’l L. 151
The Church’s liberal application of just war theory has potentially threatened the harmony between just war doctrine and its broader life ethic—an ethic that has become more restrictive despite a similar emergence of technologies that arguably improve bioethical and other life-and-death decisions outside the warfare context. In particular, the Church has arguably sanctioned many military actions that, though technically adhering to just war principles, contravene principles found in its doctrine on other issues where life is at stake. Beyond any implications these inconsistencies might have for the Church specifically, they highlight a much broader sociopolitical and legal tension between an enduringly popular theory of international warfare and the strictures placed on the human right to life in non-warfare contexts.
Recognizing this gap in the literature, this Article will argue that the Church’s actual application of just war doctrine has indeed contravened its broader, otherwise extremely robust ethic of life. This Article makes this argument by proceeding in three parts. Part I introduces the Church’s doctrine on life, as expressed most explicitly in its Canon Law on Sanctions and its Catechism on the Fifth Commandment (“Thou shalt not kill”). Part II explores three specific areas in which the
Church’s application of just war doctrine clashes with principles located in its broader life ethic. Finally, Part III discusses the implications of these inconsistencies for the Church’s future development of its just war doctrine and its broader life ethic, with an eye toward how to harmonize the two. It recognizes that the Church is all but certain to continue adhering broadly to its positions on certain issues like abortion. Nevertheless, there remain ways for these positions and applications of just war theory to converge. Doing so, the Church can better legitimize its seemingly over-formalistic principles.
Author: Jayant Raghu Ram
Citation: 26 Fla. J. Int’l L. 197
Unlike most of the “procedural” reforms being considered in this conference, reforms seeking to broaden the remedies available in WTO dispute settlement proceedings cannot be regarded as “technical” issues. Because remedial measures directly affect the level of enforcement pressures applied to governments in violation of WTO obligations, changes in this area confront the central issue of how strong the WTO member governments want their legal system to be.
Citation: 25 Fla. J. Int’l L. 331
The advent of the twenty-first century has brought with it a change in the classical notion of sovereignty. Claims of sovereignty in a number of cases have questioned traditional doctrines around sovereignty loss and declaration.
Sovereignty is in a stage of transformation. The present Article examines the role of judicial bodies in sovereignty’s transformation and how international justice can contribute so that sovereignty patterns can more easily and smoothly transition to the new era. As such, the recently submitted application of Bolivia in the ICJ and the challenges it poses for Chilean sovereignty will be analyzed as an example. The Article will further analyze how a possible ICJ ruling favoring a synthesis of old and new perceptions around the notion of sovereignty would be in tandem and would also essentially contribute to the settlement of other disputes.
This Article does not attempt to examine the traditional ways territory is lost and acquired, as these have been documented in classical international law. On a similar, yet different note, this Article aspires to map how sovereignty, a broader notion which may or may not be associated with any changes in territorial status, is relinquished and acquired. As such, this Article will delineate sovereignty’s transformation from passive and idealist to aggressive and pragmatic. Furthermore, it will explore how these opposing poles can actually be combined in a synthesis promoted by the ICJ on occasion of the Bolivia-Chile litigation.
Citation: 25 Fla. J. Int’l L. 359
The proprio motu power is a radical innovation of the Rome Statute. While prosecutors at prior international tribunals could select individual cases for investigation and prosecution, they could only operate within pre-established and rigid jurisdictional boundaries. Jurisdiction for these previous international criminal tribunals was pre-defined by political actors, and it generally focused on specific conflicts (World War II, Rwanda, the former Yugoslavia, Cambodia, Sierra Leone, and Lebanon). In contrast, article 15 of the Rome Statute (Statute) empowers the International Criminal Court (ICC) Prosecutor to proactively and independently direct the Court’s attention toward entire situations proprio motu, or on her own motion. This power is formidable in light of the Court’s sprawling jurisdictional mandate. A permanent entity with 122 state parties and counting, the Court can investigate and prosecute crimes committed either on the territory of a state party or by a national of a state party. The proprio motu power thus authorizes the Prosecutor to take independent action, without the sanction or trigger of any political actor, with respect to an expansive range of situations around the globe.
The Statute established particular criteria that a situation must satisfy before the Prosecutor may deploy this substantial power. The Statute first requires the Prosecutor to find a reasonable basis that crimes prohibited by the Statute have been committed, and that the situation would be admissible before the Court, taking into account concerns of gravity and complementarity. The Statute also allows the Prosecutor to decline to proceed, even if all of the above criteria are satisfied, if the interests of justice so demand. The Statute finally requires the Prosecutor to obtain judicial authorization from the Pre-Trial Chamber before initiating a proprio motu investigation.
While this statutory framework is rigorous, it leaves open a critical question: whether the Prosecutor has any discretion to decide whether to initiate proprio motu proceedings once she determines that a situation satisfies the statutory criteria, or whether instead the Prosecutor is compelled to seek Pre-Trial Chamber authorization to investigate all such situations. Particularly given the lack of precedent from prior international criminal tribunals, this statutory silence in practice opens the door for the Prosecutor to establish the boundaries of this discretion.
Domestic analogies are of limited utility in clarifying the amount of discretion afforded the ICC Prosecutor. Prosecutorial discretion is a familiar concept in many domestic criminal justice systems. However, in domestic systems, prosecutorial discretion is generally limited to decisions regarding individual cases. Domestic prosecutors are granted jurisdiction over pre-defined areas, and they can neither expand the boundaries of that jurisdiction nor attempt to narrow it. Like prosecutors at prior international criminal tribunals, domestic prosecutors generally have static jurisdictional mandates. And, generally, within that jurisdiction, domestic prosecutors are expected to investigate and prosecute all crimes, especially all serious crimes, and their jurisdictions are sufficiently circumscribed to make this expectation feasible.
There is no comparable expectation or possibility for the ICC Prosecutor. In fact, the Statute assumes exactly the opposite-that the Prosecutor will not investigate and prosecute all crimes within her jurisdiction. The complementary posture of the Court ensures that states retain the primary responsibility and authority to investigate and prosecute crimes within their jurisdictions, allowing the Office of the Prosecutor (OTP) to step in only when they fail to do so. The Prosecutor is only expected to act as a gap-filler, investigating only those situations where no genuine domestic action has been taken.
In addition, the ICC’s jurisdiction is dynamic, constantly able to grow and shift its boundaries as new states ratify the Rome Statute. Within this expansive mandate, the Prosecutor can, under article 15, trigger the Court’s action with respect to particular situations even if others remain uninvestigated, and even if international crimes are being committed throughout other swaths of the Court’s jurisdiction. Current debates about proprio motu selection discretion at the ICC reveal two competing options. The Prosecutor has suggested that no such discretion exists, arguing instead that the Statute compels her to seek authorization to open an investigation whenever she finds that the statutory requirements are satisfied. Many scholars argue the opposite: that constraints on the Court inevitably require the Prosecutor to exercise discretion when deciding which situations to investigate proprio motu, and that such discretion allows the Prosecutor to make essentially unguided political decisions.
This Article will challenge both of these positions. It will argue that the Prosecutor exercises at least some discretion when identifying situations for proprio motu action and that many structural aspects of the Court indeed require that she must. However, the Prosecutor has not relied on extra-statutory or political criteria to select from among admissible situations. Rather, the Prosecutor finds and deploys discretion through her independent capacity to interpret the statutory criterion of sufficient gravity.17 In this way, the Prosecutor has adopted a compromise position with regard to proprio motu decision-making, attempting to balance the structural realities and constraints facing the OTP and the Court as a whole with the statutory restrictions on the *364 nature and scope of the proprio motu power.
Citation: 25 Fla. J. Int’l L. 417
Two common credit enhancement devices used in international project finance, namely surety bonds and standby letters of credit, have their origins in the common law system. This Article will address their characteristics and how they are applied in a civil law system, specifically in Peru. I will analyze common problems and different approaches with regard to these devices in the context of an international project financing in Peru.
In Part I, I will define credit enhancement and briefly describe the several types of devices used in international project finance.
In Part II, I will address letters of credit, in particular standby letters of credit defining their nature and analyzing how they are different from independent guarantees. Moreover, I will tackle the nature of Peruvian Cartas Fianza Bancarias, ending this Part with an analysis of what instrument would be more beneficial to U.S. lenders and explaining how fraud is related to the standbys’ practice.
Part III tackles surety bonds. First, I will briefly address how they work in the United States and internationally, defining their nature and main characteristics. I will discuss the problem that arises when the surety decides not to pay the surety bond. In this Part, I will also describe the Peruvian Fianza, which is the closest instrument to a surety bond in Peruvian legislation. Finally, I will compare the benefits of surety bonds and Fianzas to U.S. lenders, concluding that because of serious enforcement problems derived from the accessory nature of this credit enhancement device, U.S. lenders should consider Cartas Fianza Bancarias instead of surety bonds or Fianzas when facing international project finance in Peru.
Letters of Credit and Performance Bonds: How are these Popular Credit Enhancement Devices Applied in International Project Finance? From their Common Law Origins to their Application in Civil Law Systems – the Peruvian Case
Citation: 25 Fla. J. Int’l L. 453
During the last few years, the Americas have been the stage for intense public debate and various judicial rulings over the scope of reproductive rights and access to reproductive technology. Yet only as recently as 2012 and for the first time in its history, the Inter-American Court of Human Rights (IACHR) accepted a case on reproductive rights: “Artavia Murillo c. Costa Rica.” In this case, the Court considered whether an absolute prohibition on access to in vitro fertility treatments (IVF) could be compatible with the rights recognized in the American Convention on Human Rights (ACHR). Costa Rica was the only country among the ACHR States in which access to IVF has been explicitly and absolutely prohibited. Among the other Convention signatories, legislation is not uniform-some countries permit IVF, but regulate it; while in others, absent any specific regulation, IVF is, in fact, practiced.
Through its ruling the Court resolved the various debates that had been circulating both in the legislative arena and in the courts: among other issues, the Court decided that human embryos are not legal persons. It also scrutinized whether the right to life is absolute, or whether, in determined contexts, it should cede before other rights such as autonomy and privacy, and whether prohibiting access to certain medical treatments involves a form of discrimination that is prohibited by the Convention. Because of its important and far-reaching implications for the exercise of the human rights recognized by the ACHR, this ruling demands detailed analysis and discussion.
This Article considers the Court’s historic decision and the challenges that ACHR States parties face in developing IVF regulations that are consistent with the ruling. In Part I, we will focus on the case background. Part II explains the Court ruling in detail. In Part III, we shall ask what kinds of regulations to the practice of IVF would be compatible with the rights recognized in the ACHR. We will especially focus on the perspective of women’s right to health, the right to form (or abstain from forming) a family and we will consider aspects of the discussion involving the scope of anonymous donation. By way of conclusion, in light of the IACHR ruling, in Part IV we will offer some comments about possible next steps for Convention States Parties.
Author: Andrew Petrey
Citation: 25 Fla. J. Int’l L. 483
Plaintiffs, the Samoan Federation of America and a group of five non-citizen U.S. nationals born in American Samoa, brought this case in the U.S. District Court for the District of Columbia asserting that the Fourteenth Amendment’s Citizenship Clause extends to American Samoa and that people born in American Samoa are therefore U.S. citizens at birth. Defendants, the United States and the related parties that execute its citizenship laws, moved to dismiss Plaintiffs’ complaint for lack of subject-matter jurisdiction and failure to state a claim. The court HELD that it did have subject-matter jurisdiction over the matters and granted Defendants’ Motion to Dismiss for failure to state a claim, concluding that “[t]he Citizenship Clause does not guarantee birthright citizenship to American Samoans.”
Citation: 25 Fla. J. Int’l L. 147
Assassinations and licit targeted killings – distinctions with a difference?
Guns for hire: the history of private military firms and private military corporations as distinct entities and not just mercenaries by another name.
Authority and liability of civilian operatives under just war theory, international law, and domestic law.
Citation: 25 Fla. J. Int’l L. 207
Abstract: In general, Parts II and III of this Article examine how PIFs are acquired and have maintained their advantages from 1940 to 2010 in the United States. Part II reviews the legislative history of private investment funds in the United States during the period of their exempt status. This is followed by a discussion in Part III of the reasons for PIF’s transition from virtual anonymity to a “front and center” position that led Congress to pass the Private Fund Investment Advisers Registration Act within the Dodd-Frank Act. That same “front and center position” for AIFs led the European Commission to choose to adopt a bloc-wide (i.e., pan-European) approach in its Alternative Investment Fund Managers Directive.
Part IV focuses on a critique of relevant provisions regulating PIFs in sections of the Dodd-Frank Act and its implementing rules, along with a comprehensive analysis of the major provisions of the AIFMD. Before the key provisions of the final AIFMD are covered, there is a discussion of the initial struggle over the extent to which non-E.U. PIFs would be allowed to market and manage AIFs within the European Union. Part V compares the political influences of the United States and the European Union that lie behind the different approaches taken in each nation to tackle alternative investment fund issues. While different, both the American approach and the European approach are motivated by the same reasons. Finally, a cautionary note is highlighted regarding special AIFMD compliance difficulties that may be encountered in the European Union by U.S. funds and managers.
Citation: 25 Fla. J. Int’l L. 271
Abstract: Two legal questions are made paramount by ongoing prosecutions in the United States: (1) whether these forms of accessory liability are limited to complicit acts themselves committed on the high seas (the “high seas” requirement) and (2) whether an accessory can commit piracy without having robbed his victim (the “private ends” requirement). This Article discusses these, as well as other fundamental issues regarding the forms of responsibility in question.
Part II highlights these legal issues using two U.S. cases as a backdrop; one involving an alleged pirate negotiator; and a second involving alleged foot soldiers. Part III examines the sources of international law for piracy. As the UNCLOS definition of piracy represents customary international law on the subject, the first order of business is to ascertain the meaning of the words used in the treaty by reference to the usual sources of customary law, including the travaux preparatoires. It is shown that this analysis fails to answer all of the pressing questions. Two additional sources might serve to fill these gaps: (1) the substantive law of the prosecuting State or (2) general principles of law derived from the jurisprudence of international criminal tribunals. Part IV argues that for purposes of foreseeability, consistency in application and conceptual coherence, the latter source is the most appropriate; and Part V shows how general principles of law answer the questions facing courts regarding the application of incitement and intentional facilitation of piracy.
Citation: 25 Fla. J. Int’l L. 311
Abstract: This Note will examine in depth the current state of identity theft and the current international approaches to combatting identity theft. It will also discuss certain deficiencies in this area of law, including ambiguous legal requirements and lack of international cooperation, which have prevented a successful attack on identity theft. Lastly, this Note will opine about the multi-faceted approach that is needed to properly combat international identity theft in this day and age.
Citation: 25 Fla. J. Int’l L. 27
Scholars have acknowledged that the study of World War II era intelligence can be an extremely arduous undertaking. Intelligence tradecraft, by its very nature, requires that certain information remain secret. It necessitates the sustained concealment of activities or events. Moreover, this government emphasis on secrecy often results in the suppression of sensitive information from historians and citizens alike. Thus, one must turn to declassified records of the past to reshape modern conceptions of history. This article should be regarded as a spirited departure from traditional scholarship. Specifically, it utilizes the case study method to communicate a powerful message related to both law and history. Readers are encouraged to examine this narrative and related analysis in conjunction with the primary source material it references. More importantly, they are asked to apply a socio-legal approach to the personal account contained therein. In the summer of 2011, the author was fortunate to discover a declassified report detailing his grandfather’s experiences as a young airman in World War II. Lt. Raymond Murphy was shot down in 1944 by German anti-aircraft fire on his sixteenth mission as a B-17 Navigator with the U.S. Army Air Corps. When examined from a legal perspective, his report is illustrative of a number of law of war topics, including the foundational principles that gave rise to modern humanitarian law. Unfortunately, Lt. Murphy’s account also evidences something far more disturbing, a criminal atrocity committed by German forces against the French population.
Citation: 25 Fla. J. Int’l L. 61
The main focus of this Article is to explore the differences between legislatures in terms of short titles, and why there is such a transatlantic divide. Specifically, I want to address how the U.K. Parliament and the U.S. Congress, steeped in such history and both employing a common language, now produce such radically different titles for their laws, as seen in the introduction above. Additionally, the Scottish Parliament is included as a contemporary example of a recently formed parliament, and is used to juxtapose the findings from the other two legislatures. First, this Article takes into consideration some of the main constitutional differences between legislatures. Then, it explores some of the main structural and legislative drafting differences in regard to short titles, as well as demonstrating how short titles are used in bills and laws in each jurisdiction from a presentational perspective. Next, it examines some of the attitudes that lawmakers and those close to the lawmaking process have about short titles, by revealing interview data I accumulated while researching the topic. Finally, this Article presents the main findings from a general point of view, and then lays out findings specific to each legislature.
Citation: 25 Fla. J. Int’l L. 117
Sustainable solutions for Haiti lie in innovative development assistance programs such as the Haiti Hemispheric Opportunity Through Partnership Encouragement Act (HOPE II), a Free Trade Agreement (FTA) between the United States and Haiti which was passed by the U.S. Congress in 2008. This FTA aims to assist the sustainable socioeconomic development of Haiti by allowing Haitian exporters to obtain a duty-free license to export certain textiles to the United States if they meet eligibility criteria related to international human rights. The legislative framework and functions of HOPE II will be analyzed henceforth. The objective of this Article is to explain the importance of Alternative Dispute Resolution (ADR) for the effective enforcement of international human rights under HOPE II.
Citation: 24 Fla. J. Int’l L 469
The legality of the 2003 invasion of Iraq has has attracted intense scholarly and public scrutiny. The academic debate surrounding the legal dimensions to the United States’ post-invasion actions in Iraq, however, has been far less robust. In particular, scholars have paid comparatively limited attention to the manner in which the U.S.–the self-acknowledged occupying power in Iraq–complied with the international law of occupation and, more specifically, the conservationist principle, which together contemplate that occupying states will endeavor to preserve the status quo ante bellum in the occupied state and uphold existing laws, unless “absolutely prevented” from doing so. The academic literature to date on the legal dimensions to the United States’ occupation of Iraq can be loosely characterized as taking one of two theoretical approaches. First, some scholars remain focused solely on the relevance of occupation law to contemporary occupations (arguing that it is, in fact, anachronistic and therefore was not fully applicable to the occupation of Iraq), thereby truncating serious investigation to the legal questions attendant to the U.S. occupation of Iraq. Second, scholars that do attribute relevance and legal authority to the traditional law of occupation as applied to contemporary occupations rely exclusively on U.S. sources (as opposed to Iraqi sources) to evaluate America’s compliance with the law of occupation in its occupation of Iraq. Both approaches are incomplete.
In an attempt to address the weaknesses in the existing literature on the subject, the Article makes a distincitve contribution: It relies primarily on the minutes kept and resolutions adopted by the Iraqi Governing Council (the “IGC”) (the quasi-governmental body established by the Coalition Provisional Authority in June of 2003 and officially recognized in U.N. General Assembly Resolutions 1483 and 1511 prior to its dissolution in June 2004) to examine the relevance of occupation law to contemporary, state-building occupations and, in turn, to determine the degree to which the United States adhered to its legal mandate as the occupying power in Iraq. Until now, Iraqi perspectives on the U.S. occupation of Iraq have been absent from the debate. Given that the the raison d’être of the international law of occupation is to protect and uphold the human rights of the occupied population, it is only natural that scholars examine the legality of the occupation of Iraq from the perspective of the rights-holders themselves–who are, in this case, the Iraqis, of whom the IGC was the principal representative entity. Relying principally on the insights provided by the hitherto unreferenced resolutions adopted and meeting minutes kept by the IGC, this Article provides compelling justifications for the application of the conservationist principle–the axiom of occupation law–to contemporary, state-building occupations, while also casting incriminating shadows upon the United States’ adherence to its obligations under occupation law as the occupying power in Iraq.
In addition to examining the relevance of the law of occupation to contemporary occupations and the United States’ adherence to this law in its occupation of Iraq, the Article extends arguments of other scholars by proposing modifications to the traditional law of occupation. Such modifications would enable states to more effectively balance the tension between traditional occupation law and the realities of contemporary, state-building occupations that require drastic transformations to the economic, political, and legal infrastructure of the occupied state. Specifically, the Article contributes to the growing body of literature on the emerging international legal doctrine, jus post bellum, by outlining three fundamental principles that must supplement the existing proposals related to the jus post bellum law of transformative occupations. Foremost among these principles is the necessity of preserving popular sovereignty during transformative occupations in the form of an executive council made up of elected citizen representatives from the occupied state that have veto power over all proposed reforms to the legal, economic, and political infrastructure of the occupied state. These principles, if implemented, will more effectively uphold the rights of the sovereign, occupied population while concomitantly providing for certain political and economic transformations to the occupied state in instances where the rights of the ousted or fallen, de jure government are not worth protecting, as was the case in Iraq.
Citation: 24 Fla. J. Int’l L. 513
The right of property is mostly protected by regional instruments of human rights. Among these, one provision stands out: Article 1 of the First Optional Protocol to the Convention for the Protection of Human *514 Rights and Fundamental Freedoms. Based on this provision, the European Commission and Court of Human Rights have developed an influential case-law on interferences with property. According to these institutions, the state is not prevented from interfering with the use of property: a measure that produces this result is justified when the correspondent authorities observe a balancing test between the interests of the individual and those of the community. For this purpose, a wide margin of appreciation is given to the state. The European Commission and Court have recognized three related rules in this provision: interferences with the peaceful enjoyment of possessions, the deprivation of property, and the control on its use. These rules are found, respectively, in the first sentence of Article 1, in the second sentence of the same paragraph, and in its second paragraph.
Distinguishing among these rules is not easy in practice. The European Court has construed the concept of expropriation restrictively. The notion of control on the use of property, on the other hand, has been interpreted broadly. In this context, the tribunal will consider other interferences only when it is not able to establish a deprivation or a control on the use. From the three forms of interference that comprise Article 1, only deprivations require compensation to be considered lawful. In this respect, the state will enjoy a wide margin of appreciation at the moment of establishing the sum due, especially in cases of nationalization. As a general rule, the European Court requires an amount reasonably related with the property taken: full compensation, however, is not guaranteed for every taking. If there is no formal extinction of legal rights, an indirect expropriation will require a substantial interference with the right of property. According to the tribunal, a taking occurs when the property is left with no possible use or economic value.
In conformity with Article 1, measures that deprive an individual or legal entity of the use of his/hers/its possessions must be adopted in the public interest. “Public interest” is not defined in the First Protocol, but the European Court has identified it as “general interest” (in other words: public purpose, as it is commonly known in international law). This requires a fair balance between the welfare of the individual and *515 the community. The European Court will respect the exercise of the sovereign right to expropriate. As a consequence, a wide margin of appreciation will also be given to the national authorities at the moment of judging the public interest of the respective measure.
Citation: 24 Fla. J. Int’l L. 545
The reader will have understood that such an exploration of the theoretical accuracy of forum non conveniens is the object and purpose of this Article. In order to assess the theoretical validity of this doctrine (and, generally, any doctrine), it is necessary to determine whether (i) it pursues legitimate interests or objectives; (ii) whether it is able to serve those interests or achieve those objectives; and (iii) whether there are alternative doctrines/legal rules that would be more efficient. In this Article, I show that, although several of the objectives pursued by forum non conveniens are adequate, it is ultimately unable to achieve those objectives. Also, and even more importantly, forum non conveniens is in any event unnecessary as the function assigned to it can be performed more adequately by suitable jurisdictional rules.
In Part I of this Article, I examine the objectives pursued by forum non conveniens and distinguish between legitimate (efficiency, protection of defendants from abusive forum selection) and illegitimate (reduction of courts’ caseloads, protection of domestic defendants) objectives. In order to draw such a distinction, I rely on the observation that forum non conveniens is of jurisdictional nature (i.e., it functions as a jurisdictional rule) and that, therefore, its valid objectives are necessarily of the same nature. Importantly, I show that those objectives should primarily reflect the private interests of the litigants because the allocation of jurisdiction in international cases does not, strictly speaking, involve any “public” interests.
In Part II, I discuss the inability of forum non conveniens to achieve its legitimate objectives. In this respect, I emphasize the difficulties of translating those objectives into a workable rule or “test,” as well as the risks of errors and abuses inherent to any doctrine based on judicial discretion. In Part III, I explain that the doctrine of forum non conveniens is unnecessary. Specifically, I show that forum non conveniens emerged as a tool to remedy the undesired effects of rules of exorbitant jurisdiction and that, in the absence of such rules, forum non conveniens has no-or only a very limited-role to play. I also highlight that jurisdictional rules are able to ensure a high degree of efficiency and fairness, and that there is no need for a posteriori adjustments involving judicial discretion.
Citation: 24 Fla. J. Int’l L. 583
This Essay is something of a thought experiment. It poses the question whether the American Revolution, its grievances against the English crown embodied in the 1776 U.S. Declaration of Independence, would be justified under modern standards of international law. The inquiry is intended to serve as a mirror against which Americans may judge the validity of current international norms regarding modern secessionist movements around the globe.
Americans are taught from a young age that our own revolution was entirely justified by the political and economic oppression of the American colonists. What would it say, then, if the standards which the international community now employs to judge the legitimacy of other secessionist movements would indicate the illegitimacy of our own? What would it say if the question was, as this Essay will argue, too close to call? Simply, it would signal the need to rethink the standards we, as Americans, should consider acceptable when judging the legitimacy of foreign declarations of independence.
Because of the unsettled nature of whether secessionist movements-particularly violent ones-are ever justified by current norms and, if so, when, no definitive answer can be given as to whether the American Revolution would be justified by current norms. The question is a close one, even under an interpretation of current norms that permits secession. And not all interpretations do.
Even the judgment regarding whether or not the American Revolution would be considered legitimate by today’s standards is a close call that must be subject to several important historical caveats in order to be profitable. The analysis below will first briefly discuss those historical caveats: dark patches in American colonial history that are so far behind now almost universally accepted principles of human rights and self-determination that discussing them would simply not be useful to evaluating the present norms. Those issues are then excised from the following analysis, narrowing the historical focus of the discussion to only those aspects of American colonial history that are useful to a present day examination of the fairness of the international standards relating to secessionist movements. Next, the Essay will discuss the two competing international law principles which create tension with regard to secessionist movements: a state’s right to territorial integrity and a people’s right to self-determination. In an attempt to sketch out the murky parameters of what may justify a people in an exercise of external self-determination, or secession, two examples-Bangladesh and Quebec-and their implications for international norms will be discussed. Then the grievances of the American colonists will be analyzed within the loose framework of when a secessionist movement may be justified by current international norms. Finally, the Essay will conclude with some observations regarding the implication of a finding that the American Revolution would either not be justified under current standards or that it is too close to call.
Author: Arletys Rodriguez
Citation: 24 Fla. J. Int’l L. 605
Plaintiffs, a group ranging from orchestra conductors to educators, challenged the constitutionality of section 514 of the Uruguay Round Agreements Act (URAA). Section 514 restores copyright protection to foreign works that have fallen into the public domain in the United States. Plaintiffs appealed after the district court granted summary judgment to the government. The Tenth Circuit reviewed the case, concluding that section 514 did not exceed the Copyright Clause’s inherent limitations. However, the court remanded because plaintiffs showed sufficient free expression interests in the restored works to warrant close analysis under the First Amendment’s free speech provisions. On remand, the District Court held section 514 unconstitutional to the extent it suppressed “the right of reliance parties to use works they exploited while the works were in the public domain.” The government appealed and the Tenth Circuit held that section 514 was narrowly tailored to meet an important government *606 interest and was therefore constitutional.
Citation: 24 Fla. J. Int’l L 235
This paper reviews the characteristics of human rights NGOs and their evolving role within the existing international and regional human rights mechanisms, and further, in Asia, the way in which they have worked together for better human rights practices and the establishment of regional human rights institutions (RHRIs) in this region. It also examines the role of human rights NGOs in strengthening human rights protection systems at the national level, especially in cooperation with national human rights institutions (NHRIs).
My broad argument is that not only have they contributed to strengthening the international human rights system, but have also been key partners of regional bodies to effectively implement international norms at the regional level. Human rights NGOs are increasingly becoming regional for a better protection and promotion of human rights issues of common concern in the region, and they actively cooperate with other NGOs across national borders. All three existing regional human rights systems in Europe, the Americas, and Africa also show how human rights NGOs can interact and effectively address their concerns and problems under their regional framework. In Asia, their initiatives, input, and efforts have become the strong foundation for the establishment of RHRIs in the region.
Further, at the national level, especially in relation to the cooperation with NHRIs, role of human rights NGOs is vital for the effectiveness of NHRIs and ultimately can lead to strengthening the national system for the protection and promotion of human rights. In other words, NHRIs’ effectiveness for better human rights practices in each individual state depends mainly on how they can properly interact with the human rights NGOs and at the same time, on the level of interaction with civil society. In this paper, the case study of seven selected countries in Asia was provided to review the process of establishing NHRIs, both successful and unsuccessful ones, and more specifically, how human rights NGOs have worked together with NHRIs and their governments for the protection and promotion of human rights.
Citation: 24 Fla. J. Int’l L. 271
With the grace of God, we aspire to the peaceful enjoyment of the rights of free men under the guarantees of the beneficent laws that Your Majesty has just sanctioned and which, until the last breath, Floridians shall defend.
The Governor and Constitutional City Council of St. Augustine, Province of East Florida, Spain, to the Secretary of State, C diz, Spain. December 1, 1812.
With these words the Spanish governor of the province of East Florida sent thanks to the Secretary of State of Spain for the Constitution of Cadiz, a document promulgated in St. Augustine in October 1812. The Spanish Constitution of 1812, also known as the Constitution of Cadiz or the Political Constitution of the Spanish Monarchy, was promulgated a few months earlier in Spain, on March 19 of the same year. It was Florida’s first written constitution.
In the years following 1812, St. Augustine and the political subdivision of East Florida were subject to this important document in the history of world constitutionalism. St. Augustine was a vibrant constitutional city under the Spanish Constitution of 1812. It held elections, cited the Constitution in its daily political functions, and took care to comply stringently with its language and the decrees issuing from the constitutional legislative body in Spain, the Cortes de Cadiz. In 1813, the largest public works project in St. Augustine was the construction of a monument to the Constitution which stands today in the central square of the city. When, on the Iberian Peninsula, the Constitution was rejected by Fernando VII on his return to the Spanish throne, St. Augustine, on the Florida peninsula, complied by dismantling its constitutional institutions and changing the plaque on the monument. When in Europe Fernando VII was forced to swear his allegiance to the same Constitution in 1820, St. Augustine in America celebrated the Constitution’s return, promulgated the Constitution again as instructed by Spain, and re-established its constitutional institutions. These institutions governed St. Augustine and East Florida until the keys to the gates of the city were turned over to the United States on July 10, 1821, as required under the Adams-Onis Treaty of 1819, the treaty by which Spain ceded possession of Florida to the United States. Thus, the city experienced two early and deeply rooted periods of constitutional government in the last years as a Spanish colony. The first was from 1813 until the beginning of 1815 and the second was from 1820 until 1821. This late Spanish experience with constitutionalism in St. Augustine and its province has been relatively unexplored by historians of Florida, Latin America, and Spain.
The Constitution of Cadiz was the first truly international constitution, one that was drafted in Spain and applied throughout the empire. The place and representation of St. Augustine and East Florida in the empire was the subject of negotiations that transpired across the Atlantic Ocean between metropole and colony. With the Constitution of Cadiz and its promulgation in East Florida, the constitutional construction of citizenship within the empire was solidified into a new text that excluded some and included others to important legal categories such as “Spaniard” or “citizen.”
At first glance these events may seem to be of only local interest to historians of the Spanish presence in Florida or of the city of St. Augustine. Nonetheless, local events quickly take on international significance, and even the local actors in St. Augustine were representatives of Spanish imperial power in the region. These constitutional actors were international representatives of the Spanish empire even from what some may now consider a “parochial” and “local” place. They engaged in international and transnational transactions with the United States, England, splinter groups acting only under minimal or no state sponsorship, and the international community within St. Augustine. The international dimension of local action, especially in such an internationally porous and contested area such as East Florida, should always attract the attention of students of international law.
Citation: 24 Fla. J. Int’l L. 331
With the end of the War in Iraq announced by sitting President Barack Obama in 2011 and the withdrawal of American troops by the end of December 2011, another opportunity arises for accountability for former President George W. Bush for instigating that war. Accountability can be imagined in many forms — international or foreign tribunal, domestic political accountability, or domestic criminal prosecution. Achieving accountability abroad or domestically for a former U.S. President has its challenges.
An unexplored avenue for accountability through complementarity in American federalism is the state criminal prosecution of a former President. This alternative path conducted in appropriate circumstances appears to be foreseen in our constitutional structure, assuring the double protection of the rights of the People as was envisioned by Alexander Hamilton and James Madison.
Citation: 24 Fla. J. Int’l L. 383
The purpose of this Article is to start a debate on whether human rights fact-finding conducted under the auspices of the United Nations should be used to establish individual criminal responsibility, and whether the information obtained through such missions should be used in international criminal prosecutions. Throughout this Article, I look into the goals, functions, and mandates of human rights fact-finding, and the working methods used in fact-finding missions. My analysis includes a comparison of the methods applied in human rights fact-finding and the procedural rules of international criminal law. Using three cases-the missions to Rwanda, Darfur, and the Democratic Republic of the Congo (DRC)-I show that there are no procedural and methodological standardized rules on how to conduct human rights fact-finding. As a result, each mission applies its own standards for establishing criminal responsibility.
On the basis of this research, I raise questions about the current and future practice of fact-finding by the United Nations. For example, I ask whether human rights fact-finding missions should at all be authorized “to establish individual criminal responsibility” and, if so, what that authorization does or should entail. Another pertinent question I raise is whether fact-finding should be aimed at or the information used in (possible) future criminal prosecutions, as Sunga argues. I conclude by suggesting several legal, political and practical considerations that ought to be taken into account when answering these questions. In doing so, I argue that at the very least, the methods used in fact-finding need to be revised and standardized in order for fact-finding reports to represent a verifiable and uniform source for decision makers.
Citation: 24 Fla. J. Int’l L. 429
Citation: 24 Fla. J. Int’l L. 439
International Humanitarian Law (IHL) is lex specialis in armed conflict. The rules and provisions constituting contemporary IHL developed over time as shifting social currents mandated the cooperation of humanitarian norms and military conduct. The past decade has been particularly important in the evolution of IHL, as the “War on Terror” has been preeminent in the wake of the 2001 terrorist attacks. Because many of the post 9/11 conflicts take place in, or involve, Muslim majority states, there has been a surge of interest in “Islamic Law” and its regulation of armed conflict. In this regard, Islamic military jurisprudence has been brought to the forefront.
But within this emerging discourse, there are arguments that Islam is incompatible with contemporary norms of warfare for various reasons. While such an assertion can be criticized for its oversimplification, a closer analysis is imperative toward understanding Islam’s relationship with contemporary IHL. However, this Note is not of an apologetic nature, so as to forcibly push a conciliatory objective. Instead, this Note is premised on the belief that many of the humanitarian ideals of IHL are universal in nature, and can in fact be found not only within Islamic tradition, but in many traditions worldwide. Therefore, the aim of this Note is to explore the relationship between Islam and IHL with respect to particular regulations of armed conflict.
Specifically, this analysis will illustrate the similarities between Islamic military jurisprudence and IHL, while demonstrating that most of the inconsistencies between the two are due to the social contexts in which they were formulated, not an innate incompatibility. As such, an underlying theme of this Note is that relevant principles of armed conflict must be looked at through the prism in which they were formulated because that will help establish their continued relevance today.
The Note will begin with an introduction to the relevant sources of law in each respective tradition so as to illustrate their legitimacy and their influence on the regulation of armed conflict. Then the analysis will discuss the importance of jus ad bellum, and how the socio-historical contexts that underlie the justifications of going to war have shaped the laws that regulate the conduct of war. Next, the discussion will turn to a comparative analysis of particular principles related to the regulation of armed conflict, including civilian immunity and the principle of distinction (including the distinction between civilian and military objectives), the combatant’s privilege, and prisoners of war (POWs). The Note will then conclude by demonstrating that Islam can stay true to its own traditions, while working within, and contributing to, the broader international framework.
Author: Thomas Kelley
Citation: 24 Fla. J. Int’l L. 1
The thesis of this Article, which is based largely on fieldwork performed among the owners of small business enterprises in the West African Republic of Niger, is that development experts who focus on institution building-business formalization programs in particular-are mistaken in two of their assumptions. First, it is not true that the so-called informal sector lacks rules and consistent, predictable institutions. Second, and very much related, when it comes to formalizing the business sector, corruption is more than an annoyance or an additional drag on a structurally dysfunctional system. In fact, it is the system. Corruption is so engrained in the culture of Nigerien society, including its business sector, that at present it supplies the logic and the rules that most businessmen live by. Stated in the terminology of New Institutional Economics, which provides a theoretical foundation for business formalization programs and which will be explored in Part II, corruption is the primary institution that provides the rules of the game for Niger’s business sector.
Author: Carla Crandall
Citation: 24 Fla. J. Int’l L. 55
Abstract:[T]his Article argues that the United States ought to be held to a higher, ex ante standard-that of “aiming” before firing-and posits that such a standard is practically attainable.
In doing so, the Article proceeds as follows. Part II describes the capabilities and current employment of drones and explains why resolving the legitimacy of their use is so critical. Specifically, it highlights that, despite the unsettled nature of the law in this area, targeted killings by drone strikes have increased exponentially in recent years-in some instances against arguably questionable targets. Part III examines current attempts to address the legitimacy of drone assaults and explains why they fail to adequately govern the use of these weapons. While this Part explores the applicability of IHRL and IHL, it does not undertake to resolve the debate as to which regime does or ought to apply to these operations. To the contrary, it argues that limitations within each framework have prevented consensus from forming around the applicability of either. Accordingly, U.S. officials must arguably look to other sources to find guiding principles to legitimize targeted killings via drones. Though it is admittedly not entirely clear whether constitutional guarantees apply in the foreign locales where these strikes occur-or to the foreign nationals who are often their target-this Part proposes that American due process principles nevertheless ought to be invoked before such strikes occur, because failing to do so allows the executive to act with impunity in a legal void. Part IV argues that, in Hamdi v. Rumsfeld and Boumediene v. Bush, the Supreme Court signaled the process that may be due before drones are used to eliminate known terrorist targets. In extending the Hamdi and Boumediene analysis to targeted killings by drones, this Part also begins the inquiry into the procedural protections that due process may demand before U.S. officials engage in such actions. Part V concludes.
Author: Robert Bejesky
Citation: 24 Fla. J. Int’l L. 91
Significant attention has focused on the “Odious Debt Doctrine” (ODD), which espouses that a population should not be burdened with debt incurred by a previous regime when lending did not benefit the population. Despite acclaim, the doctrine’s compelling nature, and innovative approaches proffered, no creditor state legislative initiatives emerged. Addressing the recognized impediment to developing a functional standard, this Article emphasizes an analytical framework with three fundamental elements-(1) a government unreasonably breached fiduciary obligations to the populace or externalities compromised that fiduciary relationship (2) by contracting for loans with locus and disbursement defects, and (3) agreements caused adverse consequences, including of a systemic or macroeconomic nature.
Two inferences flow from this test. First, the ODD is inescapably formulated as a sub-issue of globalization that invokes the nexus between developing and transitioning state debt that still heatedly line the financial pages7and common “complaints about the United States, foreign bankers, [and] foreign corporations.” Second, because the formulation is grounded in general contract and treaty law, there should be deeper inquiry into the aggrieved party and burden of action. In 1992, Dean Jon Sylvester criticized the prevailing perspective of the developing world debt crisis by explaining that “[t]he imposition of conditions on debt relief makes clear that debt relief is generally viewed as a concession, or perhaps merely a favor, to the debtor.” For many countries, prevalent ODD circumstances ostensibly evolved from that debt crisis and the dominant lens of creditors needing to initiate a “favor” of debt relief remains. Alternatively, appropriate circum-stances, legal doctrines, and particulars might entitle sovereigns to affirmatively challenge odious debt or oblige creditors to be more pliable during debt reduction negotiations. Under this scenario, if creditors seek repayment and courts accept jurisdiction, debt legitimacy can be determined by considering relevant contract law, equity, and international law principles.
Author: Carolyn A. Dubay
Citation: 24 Fla. J. Int’l L. 163
This Article explores the constitutional drafting processes in post-war Iraq and Afghanistan with a specific focus on efforts to improve women’s rights, including the incorporation of gender quotas for the new national legislatures in both countries. The purpose of this Article, however, is not to analyze whether the use of gender quotas in Iraq and Afghanistan was appropriate. Rather, the purpose of this Article is to open discussion and critical debate on developing a comprehensive constitutional strategy for women’s empowerment that focuses not only on achieving greater political participation and protection of individual rights, but also focuses on the constitutional design of judicial institutions in these emerging democracies.
Author: Adriana M. Paris
Citation: 24 Fla. J. Int’l L. 213
Although this Note focuses on the lack of protection for domestic workers in the United States, this issue calls for international attention. Large numbers of domestic workers leave their home countries for various reasons such as favorable migration policies, lack of work, and a general lack of independence back home. Certain countries like the Philippines and Guatemala are known as “sender” countries because of the huge amount of domestic workers originating from them. In other countries such as Indonesia and Sri Lanka, women make up 60-80% of all migrants. In fact, between 1960 and 2005, an additional sixty million females migrated internationally. The policies of these countries certainly need to be examined so that women stop seeing migration as the only way to achieve their personal and financial goals. Due to the vast globalization over the past two decades, this is not a country-by-country issue, but rather an international problem which needs international attention.
In Part I, I examine the federal labor laws that should, but currently do not, apply to domestic work. The plaintiffs who have challenged these laws have not succeeded, largely because courts give deference to Congress in regulating and protecting workers. In Part II, I analyze the efforts of a number of states and localities to protect domestic workers. One example is New York, which in 2010 became the first state to pass a Domestic Workers’ Bill of Rights setting minimum wage and maxi-mum working hours. Finally, I conclude that local efforts to lobby the local and state legislatures are more effective than implementing new federal labor laws. Indeed, the courts have systematically refused to apply the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA) to domestic workers. Given the recent success of state laws protecting domestic workers, this is the preferred avenue for reform.
Author: Daphne Richemond-Barak
Citation: 23 Fla. J. Int’l L. 327
This Article examines if, and how, the laws of war apply to conflicts involving non-state actors-whether they are guerrilla groups, terrorist organizations or private military contractors.
Author: Alan Reed
Citation: 23 Fla. J. Int’l L. 359
In Part 2 of this Article there is a circumnavigation of the American approaches to choice of law in contract: lex fori, multilateralism, unilateralism, the substantive law approach, and eclecticism. The widespread support that now exists for the Second Restatement template is evaluated in the context of these differing theoretical perspectives. The terms of the Second Restatement are evaluated in a comparative manner and deconstructed in light of prevailing English doctrine laid down in the Contracts (Applicable Law) Act 1990, and now the Rome I Regulation. It is submitted that differences are more apparent than real. Pragmatism has prevailed over theoretical musings and rules tinged with flexibility are the order of the day. This comparative analysis is extended to quintessential determination of the import of public policy in the contract spectrum.
The third part of this Article, in a comparative framework, provides a detailed extirpation of English choice of law principles in contract set against the American experience.
In the concluding part of this Article there is a focus on optimal Anglo-American policy goals for choice of law in contract set in the context of extant law. The new provisions in the Rome I Regulation are deconstructed, and interpretative critique is propounded, derived from considerations of business efficacy and commercial efficiency. It is vital to highlight directly the overriding substantive concerns in contract conflict cases-the reasonable expectations of the parties and upholding of legitimate presumptions. In this respect a dissonance exists from the usual situation in alternative civil claims, wherein individuals commonly act without first having given thought to the possible consequences of their actions. For contract cases, efficacious rules are needed at the very outset for the vital component of assisting the parties in shaping their commercial transactions.
Citation: 23 Fla. J. Int’l L. 447
This Article will provide an overview of American law of prenuptial agreements, an analysis of the status of English law prior to the decision in Radmacher, an analysis of Radmacher, a review of calls for reform of the English law of prenups, and finally the author’s suggestions as to the minimum issues that England needs to address statutorily.
Citation: 23 Fla. J. Int’l L. 481
Citation: 23 Fla. J. Int’l Law 135
The article concerns the interpretation and application of Article 3 of Interpol’s Constitution, according to which “[i]t is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character.”
The article analyzes the developments concerning the application of Article 3, and the various considerations pertinent to its interpretation. While Article 3 applies to all Interpol activities, in practice it has been particularly relevant to Interpol’s activities in two domains: first, in the field of processing of information related to police work via Interpol’s channels; and secondly, in the context of cooperation with other international entities.
The article concludes that Article 3 has assumed a prominent place in Interpol’s legal scheme and practice, both in defining the scope and nature of Interpol’s activities and in shaping the very character of the Organization. Moreover, Article 3 serves as a fascinating example of a norm developed through the practice of an international organization, based on the interrelation between the Organization’s internal legal regime and principles of international law.
While the prohibition embodied in Article 3 appears to limit Interpol’s potential scope of activities, it in fact supports the very purpose of the Organization. Indeed, only by avoiding engagement in certain matters, notably those of political character; by maintaining a position of neutrality; and by focusing on combating ordinary law crime, can Interpol promote international police cooperation among countries that have very different political structures, legal regimes, and cultures.
Citation: 23 Fla. J. Int’l L. 187
Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the “defamation of religion” movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting “religious vilification” laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred – religiously or culturally – blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.
Citation: 23 Fla. J. Int’l L. 221
In Baby Boy v. United States, an informal, non-binding resolution by the Inter-American Commission on Human Rights (Commission or IACHR), the quasi-judicial regional human rights body, concluded that the abortion of “Baby Boy,” a 24 to 26 week-old male fetus was permissible under the American Declaration of the Rights and Duties of Man (American Declaration or Declaration) and, incidentally, the American Convention on Human Rights (American Convention or Convention), notwithstanding the fact that the latter protects the right to life “from the moment of conception” and the former contains an implied right to life from conception for every “human being.” In addition, the Commission held that the U.S. creation of a fundamental right to abortion through Roe v. Wade was not incompatible with the Declaration or the Convention, and that neither instrument required Member States to ban abortion.
This Article examines the nature of the Baby Boy resolution, its potential legal effects, the legal weight it actually has in the Inter-American system, and whether it created a treaty exception to the right to life for voluntary abortion. It concludes that Baby Boy did not validly create an abortion exception to the right to life in the Inter-American system on human rights. It also demonstrates that Baby Boy is not an authoritative interpretation of the Declaration or the Convention, has no precedential value on abortion in the Inter-American system of human rights, and therefore neither Latin American states nor the Inter-American Court on Human Rights have a duty to follow the Commission’s decision therein.
Citation: 23 Fla. J. Int’l L. 277
This Article critically examines and compares the 2006 and 2010 U.S. national space policies within the framework of the OST, and provides certain suggestions for enhancing the international law of outer space. It is divided into five parts. Part II briefly outlines the history of the OST and the space race that it was meant to curtail. Part III explores the limitations that the OST has put on the militarization of space and builds a picture of the current militarization of space. Part IV examines the policy differences between the 2006 and 2010 presidential space directives. Part V assesses the potential threats against U.S. military and civilian space systems. Lastly, Part VI proposes amending the OST to accommodate the current technological and political environment.
Citation: 23 Fla. J. Int’l L. 293
Part I of this Article explores the historical policy reasons for enacting limitation of liability statutes, and traces the beginning of limitation of liability to its modern-day equivalent. Maritime transport, particularly in the past, was regarded as a dangerous and “risky business.” Shipowners were held accountable not only for the actions of its master and crew, but also for undertaking the perils of the sea. “Any serious disaster would likely, especially in the old times, give rise to the possible bankruptcy of the shipowner.” To reduce the inherent risks and promote trade between nations, governments statutorily granted a shipowner the ability to limit his personal liability to the value of the ship in cases involving a collision, cargo damage, death, or personal injury. In 2009, the world’s foremost shipping nations can still be divided into two limitation theories: the “value” system and the “tonnage” system.
Part II performs an in-depth analysis of today’s modern “value” and “tonnage” limitation schemes by focusing on the U.S. Limitation of Liability Act of 1851, the 1976 Convention on the Limitation of Liability for Maritime Claims (LLMC), and the recent European Union civil liability initiative. The United States and the international community roughly still abide by the limitation of liability schemes devised in the 1700s. The 1976 LLMC manages to harmonize civil liability amongst the most of the world’s shipping nations, but with a rigidity that creates an almost unbreakable right for the owner to limit his liability. In 2005, the European Union, in their civil liability initiative, attempted to radically change the very concept of limitation of liability. The European Union’s attempt to revolutionize limitation of liability failed, and was replaced by a mandatory insurance scheme.
Part III analyzes the wreck of the Andrew J. Barberi through the three modern limitation of liability schemes (the U.S. Limitation of Liability Act of 1851, the 1976 LLMC, and the European Union’s 2008 directive) to explore each scheme’s strengths and weaknesses. The Andrew J. Barberi case highlights the similarities, benefits, and deficiencies of each of the three limitation schemes.
Finally, I conclude by questioning whether the underlying public policy reasons for limitation of liability have changed. The European Union’s Proposed Directive failed to garner enough political support, but the Proposed Directive’s existence demonstrates a need to address the serious problems associated with the current application of limitation of liability.
Citation: 23 Fla. J. Int’l L. 1
This Article will analyze the NPT and determine what legally permissible nuclear-security assistance Washington may provide Islamabad. Part II of this Article discusses why and how Pakistan built its nuclear arsenal as well as the national and international security threats emanating from that arsenal. Part III briefly introduces the types of security measures available to safeguard nuclear weapons and materials from unlawful access or proliferation. Part IV thoroughly examines the NPT by applying traditional methods of treaty interpretation to determine how this body of law may impact U.S. aid to Pakistan. Part V provides some concluding thoughts.
Citation: 23 Fla. J. Int’l L. 49
Citation: 23 Fla. J. Int’l L. 75
On August 8, 2008, Russia invaded the sovereign nation of Georgia. In doing so, Russia claimed it was acting in self-defense of its citizens living in Georgia and located predominantly in the region of South Ossetia. Russian forces went well beyond South Ossetia and invaded further into Georgian territory, and remained in Georgian territory for approximately two months.
This Article analyzes the legality of the stated Russian justification for invading Georgia-defense of its citizens. This Article will first provide a background on the conflict in South Ossetia. The Article will then examine the law applicable to a state’s defense of its nationals abroad. Finally, it will apply the law and historical examples to determine the legality of the Russian invasion. While it is recognized that there may be additional justifications for the Russian invasion, this Article focuses primarily on the defense of nationals abroad justification. It evaluates both Russia’s claim that some South Ossetian residents were its citizens, as well as the legitimacy of the claim that it acted in their defense. This Article applies the known facts of the invasion to the international law that allows state armed attacks in certain limited circumstances and compares it to other invasions that have used a similar justification.
This Article raises numerous questions regarding the legitimacy of Russia’s justification for invading Georgia. For example, does Russia’s responsibility to protect its nationals abroad trigger a right to an invasion? Is an invasion proportional to Russia’s need to defend its citizens? Is Georgia’s alleged targeting of Russian inhabitants of South Ossetia, an internationally recognized Georgian territory, enough justification for Russia to invade Georgia? Does Georgia’s failure to protect Russian citizens when using armed aggression to regain control of South Ossetia justify Russia’s invasion? These questions must be analyzed in determining whether Russia was justified in invading Georgia to protect its citizens. Ultimately, this Article concludes that Russia’s invasion of Georgia was not legitimate because it violated international law.
Citation: 23 Fla. J. Int’l 103
Part II of this Note will discuss in-depth the background and legal history of many of Florida’s ports, including legislation currently in place. It begins with general background information on how Florida’s ports operate in the state legislative scheme and at the local government level. This Part will discuss Florida’s major statutory ports generally. It will also discuss the background of Florida’s commonly “forgotten” non-major statutory ports in great detail, noting the differences in maritime revenue between the two categories. Finally, this Part will detail the background of several of Florida’s non-statutory ports, the truly “forgotten” ports of Florida. Part III analyzes whether each port is in danger of being overtaken by the private sector, and Part IV provides some concluding remarks.
Citation: 23 Fla. J. Int’l L. 125
Author: Paul Walker, U.S. Navy Judge Advocate General’s Corps
Citation: 22 Fla. J. Int’l L 333
This article examines the domestic law concept of “traditional military activity” as applied in the cyberspace domain, examining the distinctions between “covert action” that must be reported to Congress and military activity that is excluded from such reporting requirements. The array of traditional military activities that may occur in the Internet and other information environments without triggering covert action reporting requirements is explored through the prism of a historical examination of two types of military activity that contribute to the accomplishment of strategic surprise: positioning of forces and deception operations. A review of the legislative history of the Covert Action Reporting Statute, 50 USC 413b, reveals clear boundaries that are then examined in light of the historical examples and applicable cyberspace analogies. The article concludes that the same policy concerns requiring aggressive oversight of covert action are mitigated by the multi-layered review process inherent in the war planning process for traditional military activities.
Citation: 22 Fla. J. Int’l l. 361
Citation: 22 Fla. J. Int’l L. 401
Part II provides an overview of governance indicators: what they are, who generates them, how they are used, and the reasons they are employed. Part III elaborates on some of the terminology that will be used in this Article and addresses some preliminary concerns that must be sorted out before an earnest discussion of accuracy and accountability in governance indicators can be attempted. Part IV presents the Demand Hypothesis, and explains why it seems like a reasonable hypothesis as to how accountability in indicator generation is determined. Part V describes the nature and uses of each of the indicators that will be analyzed here; then, Part VI tests the Demand Hypotheses against the test case indicators by comparing the levels of accountability the Hypothesis would predict in each test case to the levels actually observed. Part VII advances a set of explanations for why the Demand Hypothesis predictions deviate from reality.
Part VIII lays out the Supply Hypothesis, offering it as an alternative to the Demand Hypothesis that may address its shortcomings. Parts IX and X test the Supply Hypothesis against the test case indicators, and, as with the Demand Hypothesis, then attempt to account for any shortfall between its predictions and reality. Finally, in Part X, I conclude by tying the lessons of this analysis together.
Citation: 22 Fla. J. Int’l L. 467
India’s lenient environmental standards allow for frequent and unregulated waste importation and dumping within its borders. The extent and effects of this dumping are appalling. India, along with other developing countries, allows the parties engaged to benefit financially through this dumping. Waste continues to be brought into India even after its ratification of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) in 1992. For this reason, India has become an attractive option to countries, like the United States, for exportation and dumping of their hazardous waste.
Citation: 22 Fla. J. Int’l L. 155
The purpose of this Article is to evaluate the prospect of change under the Obama administration in one specific area of American foreign policy: the relationship between the United States and the International Criminal Court (ICC). Part II provides a very brief introduction to the jurisdiction and international legal status of the ICC, a court that is still unfamiliar to the majority of Americans. The history of the strained relationship between the United States and the ICC is summarized in Part III. The longest section in this article, Part IV, examines the major American objections to the ICC, and includes an analysis of the validity of the concerns. Finally, Part V contains my recommendations to the Obama administration as it reconsiders America’s approach to the ICC.
Citation: 22 Fla. J. Int’l L. 191
Today, scholars frequently cite Duguit as the founder of the social-function norm. These references, however, seldom go beyond a quick cite to his foundational work on the topic. It seems that little is known about the genesis of his ideas, the sources he employed, and how some of these ideas eventually migrated into contemporary legal systems around the world.4 This Article seeks to explore the origins of Duguit’s thought on the topic as some necessary background work to the current debate concerning the social function of property.
Citation: 22 Fla. J. Int’l L. 227
This Article argues that the BIA, in solving the persecutor bar problem assigned by the Supreme Court, should learn from the controversy over the material support bar. Like the material support bar, the persecutor bar is a well-intentioned restriction to exclude those individuals who do not deserve asylum relief. Like the material support bar, the persecutor failed to include an explicit duress or de minimis exception. Therefore, like the material support bar, the persecutor bar should allow for both duress and de minimis exceptions even though there is no explicit mention of those defenses in the statute. Part II of this Article reviews the jurisprudential history behind the persecutor bar. Part III analyzes how Congress had to intervene to ensure that the material support bar to asylum included duress and de minimis exceptions. Part IV then applies the lessons from the material support bar and argues for a duress and de minimis exception to the persecutor bar. Part V addresses the appropriate procedure for deciding whether to apply a duress or de minimis exception.
Citation: 22 Fla. J. Int’l L. 251
After eight successful seasons on the air, Americans have come to trust Jack Bauer of 24 to get the job done. Regardless of the circumstances, Jack always succeeds where most men cannot; Jack can always find a way to break a terrorist suspect and obtain the exact information he needs to save the world. Because of this unrealistic portrayal of the successes of torture, Americans have also come to expect that Jack Bauer is not the exception, but the norm. The War on Terror has introduced a new legal theory to the American consciousness: that of the ticking time bomb exception. Despite the country’s pledge to uphold the principles of the ICCPR and the Convention against Torture, more and more Americans are rallying around the ticking time bomb exception, which permits government officials to torture a suspect who might possess critical information regarding an imminent security threat. This paper seeks to convey that the ticking time bomb exception is strictly prohibited under national and international law, and to place the ticking time bomb exception in a more realistic context for the American public.
Citation: 22 Fla. J. Int’l L 285
This paper focuses on some underlying tensions within the literature of global regulation towards the possibility and limits of international law in helping understand and address the current financial-political challenges facing the international legal system. First, I want to briefly think about some common ‘illusions’ that may restrict our ability to cope with the violence and paranoia that haunts our horizons. My suspicion is that too often we see ourselves in the role of architects, embroiled in debates over the structural aspects of civil society at home and global governance abroad. In this sense, I want to suggest that it is not our institutions or ideological underpinnings that stifle our efforts, but something more intimate, something about our most cherished conceptions of our past, those illusions about our own personality and the projects we sign up to.
This might be seen as the search less for a set of concrete virtues, and more for a posture or sensibility to guide us forward. Second, I want to turn and think about how this sensibility might be applied in practice, and specifically to think about this in relation to the looming financial crisis. My hope in this work is not to provide an in-depth analysis of any of the current challenges that face global law and policy, but to focus on the sensibility that experts more often than not bring to the table, and to inject into this ongoing conversation some more recent advances within Continental European philosophy and critical theories of international law and development. The task here, in other words, is to propose an initial step into thinking how we might move more boldly beyond the politics of knowledge, of self-reflection and ambivalence, to a politics of truth – what we might see as an experience of the freedom, or perhaps the thrill, of taking risks ethically.
Author: Noel G. Villaroman
Citation: 22 Fla. J. Int’l L. 299
Author: Bradly J. Condon & Tapen Sinha
Citation: 22 Fla. J. Int’l L. 1
This Article is organized as follows. We first consider the problems that the IHR (2005) were meant to resolve, such as the need for rapid reporting of outbreaks, the related need to minimize disproportionate travel and trade restrictions in response to outbreaks and the need for international leadership to coordinate the global response. We then analyze how the IHR (2005) are designed to achieve this end and how effective a tool the IHR (2005) proved to be during the 2009 influenza outbreak. We also consider the WHO guidelines for communicating with the public during a pandemic and assess the effectiveness of the *4 Mexican government’s pandemic planning and communication strategy in addressing the H1N1 (09) epidemic. We then consider the role of WTO law in regulating the use of disproportionate trade restrictions in response to disease outbreaks.
Author: Sharon E. Foster
Citation: 22 Fla. J. Int’l L. 31
Part II of this Article provides some general definitions and some history of the regulatory cycle. Through this view of the recent past we can see the folly in relying solely on re-regulating the financial services sector. Regulations are prone to deregulatory cycles and the regulatory reform currently being discussed does not propose to eliminate systemic risk problems; it simply tries to manage them.
Part III describes the origins of the systemic risk problem to provide context for a systemic risk analysis. In this section, I also apply systemic risk analysis to Sherman § 2, Clayton § 7 and the antitrust rules articulated by the Supreme Court to show that such analysis will work under current law without the need for legislative amendment nor a reconsideration of the law by courts. While antitrust law in the United States seems to be in a constant state of flux, evolving to meet economic realities, systemic risk analysis does not require overturning precedent. Although antitrust enforcement by governmental agencies also seems cyclical in nature, private antitrust enforcement may eliminate this problem.
Finally, Part IV addresses the need for a global solution for systemic risk through harmonized antitrust laws; at least on the point of integrating systemic risk analysis in considering divestiture and merger issues. While, in the past, harmonization has not found favor for a variety of reasons, the global financial services meltdown certainly provides a motive and a starting point to reconsider this issue.
Citation: 22 Fla. J. Int’l L. 65
The varying opinions on ineffective assistance of counsel claims for immigrants leave numerous issues to be resolved. What rights (constitutional and statutory) do immigrants have when they suffer from ineffective assistance of counsel? Moreover, what is the negative effect on immigration processes when an immigrant receives inadequate representation? Finally, what should be the new framework that the Director of the Executive Office for Immigration Review (EOIR) proposes to Attorney General Holder as a final rule?
The circuits are divided on these issues and therefore this Article will analyze whether appointed counsel and the claim of ineffective assistance of counsel warrant protection under the Fifth and Sixth Amendment. This Article will also consider whether appointing counsel to immigrants would affect the outcome of immigration proceedings. Part II, in particular, analyzes the Sixth Amendment and the labeling of removal proceedings as “civil in nature,” which would bar immigrants from obtaining government appointed counsel. Part III analyzes the Fifth Amendment and due process rights in cases related to ineffective assistance of counsel, Attorney General Mukasey’s decision in Matter of Compean and Attorney General Holder’s decision vacating Matter of Compean. Part IV analyzes a tentative right of adequate representation under the Immigration and Nationality Act and the Fundamental Fairness Doctrine, and Part V will analyze the issues in Matter of Compean.
Citation: 22 Fla. J. Int’l L. 111
As time evolves, so do criminals. The traditional ways to launder money are no longer as effective for organized crime groups1 as they *112 once were. Although the traditional ways2 are still commonly used, criminals have begun to look for new ways to cleanse money acquired from illegal activities. One such way is through the use of art. Although it sounds strange to think of drug traffickers and arms dealers purchasing famous Renoirs and Picassos, the use of art to launder money is not as strange as it seems. In fact, it is extremely effective.
Part II of this Note will focus on the dynamics of money laundering in general, and specifically, money laundering through the use of art. This Note will explain, briefly, the history and development of money laundering, and how the technique grew to be an effective means for organized criminals to cleanse their illicit money. A broad definition of money laundering will be provided, and then it will be explained how the use of art to launder money falls within the parameters of this definition.
Next, Part III will discuss why art is used to launder money. This section will analyze numerous elements which makes the use of art an effective means to launder money, including the mobility of art, the speculative price of art, and the complexity and difficultly faced by officials in correctly authenticating the price for a piece of art. Specific examples on the ease of laundering money through artwork will be provided. Further, this section will focus on how art is used to launder money if it is purchased from an auction house or alternatively, if the art is stolen, by those who intend to use it to launder money. Why organized criminals would want to purchase or steal the art will be discussed.
Part IV will focus on how organized criminals launder their money through the use of art. As a comparison, a brief explanation as to how organized criminals launder their money through more traditional methods will be provided. Then, it will be explained how art is used to launder money through a trade-based method. The dynamics and process of trade-based money laundering will be evaluated. Specifically, there are four techniques of trade-based money laundering that are utilized by organized criminals to launder money. Each of these four techniques will be examined.
Part V will present a comparison between money laundering through the real estate sector and the art sector. The real estate sector will be examined because it is more similar to the art industry than financial institutions are in the fact that both the real estate and art industries are considered non-financial institutions. Why organized criminals are now commonly using the art industry will be discussed. Specifically, a case example will be provided to demonstrate that while those in the real estate sector may be held criminally liable for laundering money, those in the art industry are not held to the same regulations. As a result, organized criminals are now seeking out the sector that is more likely to accept illicit money and more likely to fall under detection of authorities.
Part VI will focus on what regulations have been imposed upon auction houses. Then, why there are so few regulations imposed upon the art industry will be discussed. A case example will be provided which will demonstrate that those who launder money through art can be held criminally liable. However, the laundering of illicit money through the use of art can be accomplished with much more ease and without as much suspicion as other traditional ways to launder money. First, in the art industry those who sell art are not likely to be held criminally liable for money laundering, as real estate agents, bankers, and brokers have been. Second, the use of art as a means to launder money does not alert authorities to any suspicious activity. This is because authorities lack training on authenticating the price for a piece of art. Additionally, the mere speculative nature of the price for a piece of art makes these transactions appear legitimate.
Next, Part VII will focus on the domestic policies and the international agreements which have been implemented to combat money laundering and the sell of illicit art. However, the laws implemented to stop international money laundering and art theft are not effective to properly combat the vast amount of money controlled by organized criminals.
In conclusion, the question of what can be done to help fight money laundering through the use of art will be evaluated. Taking into consideration why organized criminals use art to launder money and how effective the use of art to launder money has become, this section will focus on the measures that should be implemented in order to combat the use of art to launder money. While no method will effectively prevent organized criminals from laundering the money acquired from illegal activities, regulations must be imposed upon the art industry in order to make it more difficult for organized criminals to use art to launder money. Unfortunately, once laundering money through art becomes more suspicious and difficult for organized criminals, they are sure to find another novel and effective way to cleanse their ill-gotten gains. The fight against the use of art to launder money is merely a battle in a full fledged war.
Author: Stephen D. Lott
Citation: 22 Fla. J. Int’l L. 145
Petitioner, a national of Uruguay, brought suit against respondents in a civil action pursuant to 42 U.S.C. § 1983. Petitioner, seeking money damages, alleged that his rights under the Vienna Convention on Consular Relations, article 36, had been violated when authorities failed to notify him of his right to have the Uruguayan consulate notified of his arrest and detention. The District Court dismissed his complaint. On appeal, the Eleventh Circuit affirmed the dismissal because it found that article 36 created no judicially enforceable individual rights. This decision represents an important evolution because, prior to the instant case, the Eleventh Circuit had not considered the meaning and effect of article 36 in a civil context. The court joins the Ninth Circuit in reaching this conclusion. If the court’s decision is adopted by future panels it could lead to an overall reduction in the amount of § 1983 litigation, which might serve to reduce government expenditures on litigation and damage payments. It also might jeopardize Americans abroad if foreign courts decide to mirror the Eleventh Circuit and find that foreign nationals have no enforceable rights under article 36.
Matthew C. Mirow
22 Fla. J. Int’l L 191
This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit’s ideas. Hayem should be restored as a central influence on Duguit’s thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit’s thought on property and its social function.