Berkeley Journal of International Law最新文献

{"title":"Cooperating Alone: The Global Reach of U.S. Regulations on Conflict Minerals","authors":"Remi Moncel","doi":"10.15779/Z388565","DOIUrl":"https://doi.org/10.15779/Z388565","url":null,"abstract":"In 2010, the United States Congress adopted the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Act includes an unprecedented provision to curb the mining in the Democratic Republic of the Congo (DRC) of so-called conflict minerals: components found in many consumer electronics that are sometimes the source of human rights abuses in the mines and regions from which they originate. Companies traded on the U.S. Stock Exchange are now required to conduct due diligence assessments of their supply chains and disclose the presence of such conflict minerals. The mining of conflict minerals is a global problem for which international cooperation among States and companies seems the necessary solution. However, the United States acted alone; it unilaterally adopted regulations that focused on only one country—the DRC—and one set of targets—companies publicly traded in the United States. These regulations likely required less time to adopt and implement than traditional State-to-State cooperation. Critics might argue that conflict minerals originate not just from the DRC but also from other politically unstable nations, and companies publicly traded in the United States are not the only ones to integrate these minerals into their products. Yet, this Article argues that Dodd-Frank’s influence likely extends far beyond its stated geographical scope. This Article is the first to ground the U.S. rules on conflict minerals in the literature on unilateral regulatory globalization. That literature posits that, under the right conditions, a country’s unilateral regulations can unleash a “California Effect” that causes companies outside its jurisdiction and other States to voluntarily align with those regulations. By analyzing the conflict minerals regulations through the lens of unilateral regulatory globalization, this Article reveals the Dodd-Frank Act’s potential to reach beyond its stated goals and DOI: http://dx.doi.org/10.15779/Z388565 * J.D., 2015, U.C. Berkeley, School of Law. The author acknowledges with great appreciation Jamie O’Connell and Jerome Hsiang for their comments on earlier drafts, Katerina Linos for introducing me to concepts critical to this piece, and the editors of the Berkeley Journal of International Law for their diligent reviews and edits. Any remaining errors are mine. Published by Berkeley Law Scholarship Repository, 2016 2016] COOPERATING ALONE 217 enriches the existing literature by examining when regulations focused on business and human rights might trigger a California Effect. Abstract 216 Introduction 217 I. Conflict Minerals: Overview of the Problem 220 A. Human Rights Violations 220 B. The Electronics Industry and the Market for Conflict Minerals ...222 II. A Singular U.S. Policy Response: The Dodd-Frank Conflict Minerals Provisions 224 A. Overview of Dodd-Frank Conflict Minerals Regulations 224 B. Range of Possible U.S. Policy Responses 226 C. Implementation of Dodd-Frank 228 III. The Global Pull of an Enticin","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"161 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131461122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Underwater Cultural Heritage Governance – Past Doubts and Current Challenges","authors":"Eden Sarid","doi":"10.2139/SSRN.2826845","DOIUrl":"https://doi.org/10.2139/SSRN.2826845","url":null,"abstract":"The international legal regime aimed at the protection and governance of underwater cultural heritage is facing substantial strife. Unauthorized salvage and looting are a continuing threat. Alongside these, current challenges include disputes between post-colonies and post-colonial powers over title to sunken vessels, lack of a global policy for the protection of underwater gravesites, and the exploitation of underwater cultural heritage as a means to claim disputed territory. Present times also mark a considerable passing of time since the signing (2001) and entry into force (2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage. When the Convention was signed, notable maritime powers were concerned that it erodes international law principles, particularly, marine jurisdiction and state-owned vessels’ immunity. Therefore, they have not joined the Convention. The article revisits the maritime powers’ reservations and maintains that in practice these concerns did not materialize. It then demonstrates the Convention’s competence to face the current challenges to international underwater cultural heritage governance. The article suggests that despite several drawbacks, the Convention is the best international law apparatus to govern and protect the underwater cultural heritage.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125099723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Displaced: A Proposal for an International Agreement to Protect Refugees, Migrants, and States","authors":"Jill I. Goldenziel","doi":"10.2139/SSRN.2480008","DOIUrl":"https://doi.org/10.2139/SSRN.2480008","url":null,"abstract":"How can international law protect both international security and the human rights of displaced people? Existing international law protects only displaced refugees: those who flee persecution on the basis of religion, race, nationality, or political opinion. This article argues that a new Displaced Persons Convention must be created to protect the human rights of the world’s other 35 million victims of civil conflict and climate change who do not meet this narrow definition. International Refugee Law must be preserved as it is because it enshrines critical protections for minority rights that must not be diluted. However, an additional instrument of international law is necessary to resolve an issue that is at once one of the greatest human rights issues of our time and a threat to international peace and security. To support this argument, this article presents a comprehensive history of refugees in international law, combining primary sources and original interview data to trace how states have agreed for centuries that refugee law should protect minority rights, even as shifting state interests have changed refugee protection over time. This article refutes other scholarly proposals and UN practices that expand the category of “refugee.” It also contributes to growing scholarly interest in the history of human rights law by arguing that refugee law predates the modern human rights regime, challenges its foundations, and extends its claims to universality.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130346837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Comity of Errors: The Rise, Fall, and Return of International Comity in Transnational Discovery","authors":"Diego A. Zambrano","doi":"10.15779/Z384K2P","DOIUrl":"https://doi.org/10.15779/Z384K2P","url":null,"abstract":"No feature of U.S. law has rankled foreign nations more than the supposed “legal imperialism” of discovery requests for information located abroad to be used in U.S. litigation or investigations. China, France, Germany, and Switzerland have threatened the stability of bilateral relations with the United States due to overbroad transnational discovery requests. For three decades, when faced with concerns of international comity in the discovery context, U.S. courts ruled overwhelmingly in favor of discovery through the Federal Rules, rendering international comity a dead concept.Recent case law, however, shows that this paradigm is coming to an end. In a trilogy of cases decided, respectively, by the United States Supreme Court (Daimler), the Second Circuit (Gucci), and the New York State Court of Appeals (Motorola), each court rejected attempts by plaintiffs to subject foreign entities to jurisdiction in the United States or otherwise impose on them overbroad duties, including those in conflict with foreign laws. Prominently relying on “international comity,” each decision limited the reach of U.S. courts and emphasized the need for harmony in the international legal system. These three cases are groundbreaking and should lead to changes in U.S. transnational discovery.This Article analyzes this recent revival of international comity. First, it explores the history of international comity and its interaction with broad U.S. discovery rules. Second, it briefly reviews the Supreme Court case Aerospatiale, which dealt a blow to international comity. Third, this Article analyzes how Daimler, Gucci, and Motorola relied on comity to reach their holdings and argues that international comity has been revived in the context of discovery. Finally, this Article takes a normative approach and argues that U.S. courts should engage in a qualitative limitation on the kinds of U.S. interests that are significant in the transnational discovery context.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122941389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Review of Intellectual Property and Human Development: Current Trends and Future Scenarios by Tzen Wong and Graham Dutfield (Eds.)","authors":"S. Zaharia","doi":"10.15779/Z38SW84","DOIUrl":"https://doi.org/10.15779/Z38SW84","url":null,"abstract":"Intellectual property (IP), a “bundle of rights” to creative inventions of the mind, has long been justified in terms of utilitarian economics as a system that incentivizes creators and leads to maximum societal net benefit. Intellectual Property and Human Development confronts this oft-repeated economic argument head on, by encouraging the reader to take a broader perspective and to look beyond raw product output to other indicia of social well-being, including distributional inequalities of such output, and the unequal playing field between developed and developing countries.1 Ultimately, Intellectual Property and Human Development urges readers to ascertain how IP rights in the current framework further fundamental human rights in our globalized, twenty-first century world. The book weaves a common theme of the interplay between IP rights (IPRs) and human development throughout its nine topical chapters, which deal with the relationship between IPRs and various facets of human development. Together, the chapters cover a wide range of significant and engaging topics: from access to life-saving medicines to farmers’ ability to replant seeds; from indigenous people’s rights to their traditional medicines and cultural expressions to the impact of copyright in education in developing countries; from increased access to information to the interplay between IP and contemporary art. The book emerged as a result of a comprehensive research study under the aegis of the Public Interest Intellectual Property Advisors (PIIPA), funded by the Ford Foundation. The more than a dozen authors hail from a number of countries and continents and have a broad range of expertise. One of the editors of the book and the managing editor of the study, Tzen Wong, is a researcher","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121504189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Review of Food Crises and the WTO by Baris Karapinar and Christian Häberli (Eds.)","authors":"K. Bowen","doi":"10.15779/Z389S85","DOIUrl":"https://doi.org/10.15779/Z389S85","url":null,"abstract":"The 2007–2008 food crisis was characterized by a sharp increase in world prices for major agricultural commodities, including wheat, rice, maize, and oilseed crops.1 Prices for staple commodities reached their highest point in nearly three decades, leading to riots and political protests in more than thirty countries.2 Increases in food prices up to the first quarter of 2008 pushed an additional 100 million people into poverty and eliminated almost seven years of progress in long-term poverty reduction.3 Compiled in 2010, Food Crises and the WTO provides a comprehensive account of the 2008 crisis, including an analysis of the event’s causes, consequences, and potential responses. The work focuses specifically on the relationship between food price shocks and the multilateral trading system in the context of economic development, trade regulation, technology policy, and environmental sustainability. Edited by Baris Karapinar and Christian Häberli, Food Crises is divided into two thematic sections. The first section is composed of five chapters concerning the structural and cyclical causes of the 2008 crisis as well as its impact on food security and poverty. Section one also provides a comparative analysis of the 2008 spike and those occurring in years past. The second section addresses the role of international trade and the World Trade Organization (WTO) in regulating and responding to the 2008 crisis, the empirical impact of the multilateral trading system on agricultural markets, and the trading system’s potential for improving food access. Section two also offers an initial assessment of the Doha Development Agenda (DDA) in light of the results of the WTO Ministerial Conference, covers applicable WTO doctrine","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133137150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?","authors":"M. Nevitt","doi":"10.15779/Z38FM1R","DOIUrl":"https://doi.org/10.15779/Z38FM1R","url":null,"abstract":"The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA in 1980, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear - until recently. A federal district court ruled against the Department of Defense (DoD) in Dugong v. Gates, a case involving the relocation of a U.S. military base in Okinawa - and in which the court broadly interpreted the NHPA to protect a wild animal in the sovereign territory of Japan. The decision downplayed foreign policy considerations that have historically constrained U.S. courts from adjudicating cases in other sovereign nations. It stands in sharp contrast to the traditional role of the judiciary exercising caution in cases affecting foreign relations when looking to apply U.S. laws overseas, most recently reaffirmed in the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Company. After Dugong, the NHPA may no longer be considered as a mere domestic statute protecting historic physical properties within the confines of the United States. Instead, the NHPA stands alone as a statute protecting the human environment held to apply in another sovereign nation’s territory. Dugong, a district court opinion, has little precedential force in its own right - but its broad application of the NHPA could have significant consequences for the U.S. military if more widely adopted. And it is of increased importance as a plausible vehicle to litigate extraterritorial environmental claims in light of the limited jurisdiction of other U.S. environmental statutes and the Court’s ruling in Kiobel limiting the Alien Tort Statute’s extraterritorial application. Further, the U.S. military has a growing footprint in Asia, including to countries whose historic registers, like Japan’s, provide broad protections to wildlife and cultural resources. The article surveys American historic preservation law and explains how the NHPA evolved organically from - and should be viewed in the context of - that broader preservation tradition. As the NHPA’s scope and jurisdiction are effectively unfastened from its initial beginnings, this article concludes by arguing that Congress should re-anchor the NHPA and clarify its proper scope and jurisdiction, thereby mitigating any broader foreign relations impacts.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131008942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls","authors":"Moria Paz","doi":"10.2139/SSRN.2526521","DOIUrl":"https://doi.org/10.2139/SSRN.2526521","url":null,"abstract":"A peculiar construction boom is in progress worldwide: border walls are being installed at an unprecedented rate in order to control unwanted immigration by poor people into wealthy countries. This paper asks why, almost a quarter of a century after the Iron Curtain came down, the walls are now going up again. It provides a provocative answer: I suggest that these separation barriers are a logical response of states to the way in which human rights law has been enforced in cases bearing on immigration. In other words, and counter-intuitively, the recent boom in border wall construction signals the success of the human rights tradition, rather than its failure to establish an alternative to territorial sovereignty.Next, I use the case study of walls to make a larger point on the intractability of the human rights regime that bears on immigration. Building on a systematic analysis of jurisprudence, the paper argues that human rights courts and quasi-judicial bodies utilize an arbitrary category – territory – to balance the policy interests of the individual non-national and the state. The result is essentially random from the perspective of both these stake holders. Walls make concrete a perverse side effect of this compromise: because the regime conflates access with territory, it disproportionately rewards strong young men who already have sufficient capacity (in age, gender, or resources) to scale the barrier, even if their predicament may not actually call for protection. But it privileges them only after they have risked themselves, and if they survive that risk. And so, at least when it comes to immigration, the human rights regime operates in effect as a natural selection mechanism. This is fundamentally unstable and unjust.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133608428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Political Theory of International Courts and Tribunals","authors":"David D. Caron","doi":"10.15779/Z38BM09","DOIUrl":"https://doi.org/10.15779/Z38BM09","url":null,"abstract":"This essay offers a sketch of the author's political theory of international courts and tribunals. First, it suggests two basic distinctions between types of international tribunals. Second, an overview of selected political science literature is provided to introduce a more expanded view of the function of international courts. Third, the essay provides a sketch of the bounded strategic space theory as a means for understanding and explaining international courts and tribunals.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123933534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?","authors":"Eilionóir Flynn, Anna Arstein-Kerslake","doi":"10.15779/Z38494G","DOIUrl":"https://doi.org/10.15779/Z38494G","url":null,"abstract":"In this Article, we explore a plausible legal framework within which to ground a support model of legal capacity and fully replace regimes of substituted decision-making. We ground our argument in the lived experience of people labeled with a disability. We focus particularly on individuals with cognitive disabilities, as they are generally more likely to have their decision-making ability called into question, and consequently, to have their legal capacity denied. However, we claim that such a system of support will ultimately benefit all individuals, not just persons with disabilities. The Article further examines reform efforts underway and the contributions of legislative change and judicial activism. Since the entry into force of the CRPD, many countries have begun to reform their laws on legal capacity, as described below in Section III. While significant challenges remain to ensure the full replacement of substitute decision-making regimes, international developments described in Sections III and IV, are clearly trending towards the recognition of support to exercise legal capacity.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121892944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}