Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
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Arizona Journal of International and Comparative Law
Volume 20, Number 3, Fall 2003
CHEATING JUSTICE BY CHEATING DEATH: THE DOCTRINAL COLLISION FOR PROSECUTING FOREIGN TERRORISTS — PASSAGE OF AUT DEDERE AUT JUDICARE INTO CUSTOMARY LAW & REFUSAL TO EXTRADITE BASED ON THE DEATH PENALTY
Michael J. Kelly
Two customary norms are evolving that could result in a doctrinal collision for countries that capture international terrorists. Under the aut dedere aut judicare principle, states have a legal duty to either extradite or prosecute criminals in their custody if those criminals are wanted in other countries. Under the Soering principle, European states have a legal duty to avoid extraditing criminals to countries where those criminals could face the death penalty. Thus, the quandary faced by the United States as it prosecutes its "war on terror" is to secure terrorists captured in Europe for trial while simultaneously preserving the death penalty option in sentencing. European countries may resolve such conflicting legal duties only when local prosecutors agree to forego capital punishment. But if terrorism is treated as a jus cogens crime, then new customary law could not attach to protect terrorists, and the aut dedere aut judicare principle would ensure they do not escape justice.
ANTIPODEAN REFLECTIONS ON AMERICAN INDIAN LAW
In this Article, Professor Laurence contemplates some of the essential principles of American Indian Law, from a New Zealand perspective. Three central themes are discussed. First, the indigenous society and, ultimately, whether colonialism is a useful model for analyzing the body of American Indian law and policy? Second, what role does and should repose play in the determination of long-standing land claims between Indians and members of the dominant society? And third, what is the connection between treaty rights and basic equal protection principles?
THE INTERNATIONAL DEPLOYMENT OF SHAME, SECOND-BEST RESPONSES, AND NORM ENTREPRENEURSHIP: THE CAMPAIGN TO BAN LANDMINES AND THE LANDMINE BAN TREATY
The case study of landmines illustrates the successful articulation, deepening, and expansion of international norms. The International Campaign to Ban Landmines' education and shaming strategies demonstrate the potential for transnational norm entrepreneurs to reconstitute state practices. The combination of a strong norm and a treaty constrained the United States by limiting its interactions with state parties and facilitating its adoption of second-best responses to comply with the treaty's underlying objectives. Thus, this article suggests that the combination of norm promotion, second-best responses, and treaty provisions can make substantial progress toward a treaty's goals even as the United States resists joining the treaty regime.
SHARING THE BLAME FOR SEPTEMBER ELEVENTH: THE CASE FOR A NEW LAW TO REGULATE THE ACTIVITIES OF AMERICAN CORPORATIONS ABROAD
Erin L. Borg
As the current Bush Administration touts America as the foundation of liberty and the ambassador of freedom to the world, many of its multinational corporations (MNCs) actively stunt the growth of individual liberty and stamp out human rights in the foreign countries where they operate. This Note provides examples of corporate misconduct abroad and examines the mire of litigation surrounding the Alien Tort Claims Act (ATCA), a law which could punish human rights violators, but has largely failed to achieve that end. ATCA's shortcomings are discussed, in addition to other previously ineffective solutions. To achieve the noble goals of ATCA, the author proposes a new law to hold American MNCs criminally and civilly accountable in U.S. courts. This Note demonstrates how such a law will be beneficial to the U.S. government and people, the global community, and even the MNCs themselves.
TO KEEP YOU IS NO GAIN, TO KILL YOU IS NO LOSS—SECURING JUSTICE THROUGH THE INTERNATIONAL CRIMINAL COURT
While the Holocaust is recognized worldwide as the ultimate example of man's inhumanity toward his fellow man, seventeen separate genocides of comparable magnitude have been perpetuated since 1950 and have gone relatively unnoticed by the international community. In the rare instance where trials actually occurred, swift and impartial justice was notably absent. This Note enumerates the existence of genocide, crimes against humanity, and war crimes in recent history and argues that both victims and perpetrators deserve an impartial, independent, and prompt trial. An overview of the International Criminal Court is provided, as well as descriptions of the United States' objections to the Court and the corresponding responses of the Court's proponents. This Note further examines domestic courts in Cambodia and East Timor, the international tribunals in former Yugoslavia and Rwanda, and the genocide in Iraq, as the basis for its conclusion that the International Criminal Court is the only feasible forum for trying future crimes of this magnitude.
INTERNATIONAL ADOPTION: THE MOST LOGICAL SOLUTION TO THE DISPARITY BETWEEN THE NUMBERS OF ORPHANED AND ABANDONED CHILDREN IN SOME COUNTRIES AND FAMILIES AND INDIVIDUALS WISHING TO ADOPT IN OTHERS?
Sara R. Wallace
There are millions of orphaned and abandoned children, especially in countries where war, national disasters, and social and political policies have caused families to relinquish their children. At the same time, there are millions of families and individuals in other countries who desperately wish to adopt. International adoption appears to be the "most logical solution" to this disparity. The United Nations (U.N.) has addressed the issue most recently with the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (Hague Convention). This Note describes the origins and current state of international adoption, provides an overview of U.N. declarations and conventions that address the practice, and analyzes recent developments in the adoption law and policy of popular "sending" countries. Finally, the author postulates that international adoption may be the most logical solution to the immediate problems it is purported to remedy, but the practice itself is not the best long-term solution to the underlying causes of the high numbers of orphaned and abandoned children in some countries.