Fordham International Law Journal

http://ir.lawnet.fordham.edu/ilj/

List of Papers (Total 629)

Fifty Years of European Integration: A Remarkable Achievement

The following sections outline four main phases in the history of European integration. First, this Article examines the decisive contribution that European integration made in the immediate postwar years to solving the German question and achieving Franco-German rapprochement. Second, it looks at the steps taken in the mid-1950s to launch the broader European Economic Community...

Human Rights and the European Court of Justice: An Appraisal

Through the decisions of the European Court of Justice ("ECJ"), human rights have been placed at the forefront of the agenda of the European Union ("EU"). In analyzing the jurisprudence of the Court, one is struck both by the substantive impact that it has had on the development of human rights throughout the Union and by the procedural route through which this has been...

The Evolution of the Free Movement of Capital

After considering the evolution and scope of the capital movement rules, this Article will examine two distinct themes: 1) the treatment of discriminatory taxation under the capital movement rules, looking in particular at whether there is a coherent approach to this issue across the Treaty “freedoms,” and 2) the reaction of the European Court to the extension of the capital...

The Development by the Court of Justice of the Duties of Cooperation of National Authorities and Community Institutions Under Article 10 EC

Article 10 of the European Community Treaty has gradually given rise to a large body of case law on a wide variety of subjects, including several profoundly important constitutional principles of Community law: the duty of national courts to give effective protection to rights given by Community law, the duty to give direct effect to directives against the State, the duty to...

Non-Horizontal Mergers: A European Perspective

In the last few years, the assessment of non-horizontal mergers in the European Union (“EU”) has evolved considerably. There is now a consistent body of jurisprudence and administrative decisions on the assessment of vertical and conglomerate concentrations. The goal pursued is consumer welfare; the potential benefits of non-horizontal mergers are recognized and sound economic...

Improving Competition in European Energy Markets Through Effective Unbundling

This Article is structured as follows: first, it summarizes the European approach to developing integrated and well-functioning electricity and gas markets, giving an overview of the opening of energy markets through Community legislation and the development of the current unbundling regime. It puts the European approach in perspective, outlining experiences with unbundling in...

Environmental Spill-Overs Into General Community Law

This Article will illustrate that indeed, European environmental law is not just another sectoral policy area of the European Union (“EU”). Over the years it has proven to have a major impact on various general doctrines of European law. In that sense, European environmental law had (and still has) an important spill-over impact upon general European Community (“EC”) law. It is...

Economic Governance in the European Union: Should Fiscal Stability Outweigh Economic Growth in the Stability and Growth Pact?

This Article will initially discuss the genesis of the Stability and Growth Pact (“SGP”) in 1996-1997. The second section will analyze the legal structure of the legislation adopted in 1997 to enforce the stability aspect of the SGP, i.e., the Multilateral Surveillance Regulation (“MSR”) and the Initial Excessive Deficit Regulation (“EDR”). Next, the Article will briefly review...

Two Forms of Modernization in European Competition Law

This Article makes two central claims. One is that the two processes are related in important ways and that neither can be fully understood without understanding the other. The other is that the relationships between the two reveal changes in the dynamics of European competition law that have so far been little noticed. This Article first sets out briefly the basic outlines of...

Consumers of Financial Services and Multi-Level Regulation in the European Union

This Article focuses on the changing role of consumers of financial services in the development of financial services policy in the European Union (“EU”), illustrating tensions between two models of supranational rule-making: the technical and the political. As the European mode of governance has developed by claiming legitimacy largely through functional participation, it is...

Me and My Shadow: The European Court of Justice and the Disintegration of European Union Law

The European Court of Justice (“the ECJ” or “the Court”) is widely recognized as one of the world's most successful international tribunals and has been held up as a model for others. Its reputation is in large measure based on its contribution to the “constitutionalization” of the European Community Treaties and to the functioning of the common market, particularly in the 1960s...

Photo Essay: The Crisis in Darfur

This is a photo essay about the internal conflict in Darfur, one of the world's poorest and most inaccessible regions, on Sudan's western border with Chad.

Activism and Darfur: Slowly Driving Policy Change

This article describes citizen activism about the situation in Darfur. Part I describes the birth of the activist movement. Part II describes the foundations and growth of the movement. Part III describes the movement in more detail and details govenrment responses as a result of this movement. Parts IV and V look towards the future.

U.S. - China Relations and Darfur

This Essay will begin by first assessing China's economic stakes in Sudan. While economic interests and priorities remain important, it does not sufficiently explain China's shifting position on Darfur. The Essay will then examine the critical factors shaping China's expanding role in Africa, more broadly, as an important context in understanding its evolving approach to Sudan...

Seeking Justice for Victims in Darfur: The Darfur Legal Training Program

With relatives displaced from their homes and a fiancée who was arbitrarily imprisoned and abused in Darfur, Hayat comes to her work with victims in the refugee camps with a personal stake. ... This commitment to human rights defense and victims

Why the Killing in Darfur is Genocide

In the “Anfal trial,” the Iraqi High Tribunal (“IHT”) in Baghdad convicted five former Iraqi high officials of genocide, crimes against humanity and war crimes committed in 1988 against the Iraqi Kurds. The evidence presented at trial—which included both voluminous documentary evidence as well as eye-witness testimony—demonstrated the clear existence of a genocidal campaign by...

Adjudicating Genocide: Is the International Court of Justice Capable of Judging State Criminal Responsibility?

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The...

Proving State Responsibility for Genocide: The ICJ in Bosnia v. Serbia and the International Commission of Inquiry for Darfur

This Article discusses the Bosnia v. Serbia case and the Darfur Inquiry and asks whether, in coming to their respective decisions on Serbia and Sudan's responsibilities, the ICJ and the ICID did all that was required of them, especially under the law of State responsibility. This Article first considers whether, despite striking similarities in the circumstances of Darfur and...

Repatriation of the Kohinoor Diamond: Expanding the Legal Paradigm for Cultural Heritage

This Article is segmented as follows: Part I provides an historical account of the temporal trajectory through which the Kohinoor diamond has evolved over the centuries. The exploration of the legality of repatriation begins in Part II, where it explains the structural difficulties presented by arguments that seek to justify the retention of cultural artifacts. This leads to the...

Thieves of Baghdad: Combatting Global Traffic in Stolen Iraqi Antiquities

The argument for protecting artifacts in Iraq takes on added strength when the United States recognizes that the country is where it is today not just because of its failure to provide sufficient security to overcome the long-festering tribal and religious animosities, but also because of its continuing failure to appreciate the importance Iraqis place on the preservation of...

New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates

In debates over the trade in archaeological objects or antiquities, on one end are those who believe that everyone has a shared interest in and claim to the common heritage of humanity, and thus support a vibrant and legal trade in cultural materials. On the other end are those who believe that cultural objects have special significance for specific groups and thus support the...

Practice and Predicament: The Nationality of the International Arbitrator (With Survey Results)

This Essay builds on the available literature to date and offers a more probing examination of the international arbitrator and nationality. The opening section reiterates how arbitrator nationality relates to the traditional requirements of arbitrator impartiality, independence, and neutrality (with which the "arbitrator" is most synonymous); how arbitral rules seek diversity of...

The Foreign Sovereign Immunities Act: Using a "Shield

The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court (ICC). The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked...

Seeing the Forest for the Treaties: The Evolving Debates on Forest and Forestry Activities Under the Clean Development Mechanism Ten Years After the Kyoto Protocol

This Article focuses on the evolving debates concerning jointly implemented forest and forestry activities. More specifically, this Article focuses on forest and forestry activities under the Clean Development Mechanism ("CDM"). The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change ("Kyoto Protocol") effectively created the project-based flexibility...