Monthly Archives: April 2011

Catherine Dauvergne’s book, Making People Illegal: What Globalization Means for Migration and Law, is a study of the intersection between the phenomenon known as globalization and the evolution of migration law. Dauvergne’s central assertion is that migration law, accompanied by what she sees as the recent global crackdown on illegal migration, has become the “last bastion of sovereignty” for the nation-state in the face of the advancing forces of globalization. Dauvergne argues that, as more of the policy decisions that traditionally fall in the domain of national sovereign power enter the murky realm of globalization, nation-states have increasingly turned to their domestic migration laws as a way to shore up their borders—both physical and intangible—and thus to reassert their national identities. This reassertion of nation-states’ weakening sovereignty serves as a barrier to meaningful progress in fighting illegal migration because it “contributes to failures of policy, law, and imagination” by discouraging creative proposals that seek to detach migration policy from domestic legal frameworks. Where Dauvergne’s book remains focused on developing this argument, it is compelling, original, persuasive, and generally successful. Continue reading →

Rule of law and democratic reform projects often concern lofty questions of constitutional law. But in many countries desperate for reform, deeply entrenched social and political problems present preconditions to any discussion of constitutional reforms aimed at democracy and the rule of law. Zimbabwe is one such nation, which like many others faces the problem of military intervention into domestic politics. This Note examines structural and historical aspects of Zimbabwe’s military problem and utilizes the theory of objective civilian control to demonstrate the plausibility of meaningful reforms. In so doing, this Note provides a demonstrative model for reforming civil-military relations in rule of law and democratic reform projects the world over. Continue reading →

One aspect of globalization in the developed world is the privatization of services once provided by government. This trend is also arising in developing countries, albeit for different reasons, and an area where this privatization is occurring is healthcare. Despite this privatization, the standard of healthcare in many developing countries is unacceptably low. This Note provides an analysis of this phenomenon in one country—Pakistan, a developing country that has increasingly come to rely on private providers, nongovernmental organizations, and international relief groups for the provision of healthcare—in order to draw conclusions that can be applied elsewhere. While this privatization does serve some needs, it is insufficient to provide an appropriate standard of care to the people of Pakistan. This Note argues that in order to raise the standard of healthcare in developing countries, the flow of privatization should be stemmed in favor of greater government involvement. This involvement includes collaborating with private and international entities, providing better oversight, and supplying financial incentives, in addition to the direct provision of healthcare. With evidence that greater government involvement in the provision of healthcare improves standards of healthcare, this Note concludes that the privatization of healthcare in developing countries should be viewed with caution. Further, there should be an emphasis on increased government involvement to ensure the levels of healthcare to which the people of Pakistan and many other developing countries are entitled. Continue reading →

Due to the immense pressure to recruit highly talented prospects and an overwhelming desire to have winning college athletics programs, the recruitment of international prospective student-athletes at NCAA Division I institutions has drastically increased in recent years. NCAA rules founded on localized amateurism ideals are now being applied on a global scale, in countries where there is no similar concept of amateur athletes. This Note argues that the current NCAA amateurism rules inadequately address the potential amateur issues related to prospective student-athletes from various countries. Examples and evidence of the difficulties of apply localized amateur rules to international recruits are examined and discussed. The background of the amateurism idea and according interpretations by U.S. courts of NCAA rules are explained. This Note argues that because amateurism standards differ by country, there is no longer competitive equity between domestic and international college athletes. Although possible solutions have been presented to deal with this disparity, such proposed solutions do not sufficiently resolve the problem. Rather, as this Note suggests, a global standard of amateurism that would be applied fairly to all prospective student-athletes regards of country of origin is needed. Until such a standard is implemented, problems will continue to arise with the amateur standard of international student-athletes. Continue reading →

This Note discusses the domestic and international economic effects of the recent surge of piracy off the coast of Somalia, and uses Somali piracy as a method of exploring conflicting ideological conditions that arise from globalization. In exploring the underlying motivations for this trend, it identifies a dichotomy between primary needs satisfaction within underdeveloped nations and the satisfaction of secondary interests in developed nations, and explains how globalization may be exacerbating the turn toward piracy. This Note first discusses the recent rise in piracy and then explores how the contemporary history of Somalia has engendered the upsurge. Next, it considers how piracy has influenced the economy of coastal Somalia, followed by a look at the ideological intersection between primary domestic interests and secondary global interests. Finally, this Note explores some of the international implications of the rise of piracy in Africa, and whether further expansion is a possibility.
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This Note explores the global problem of gender-based labor inequality as exemplified in China. China’s historic and cultural framework, the efforts the Chinese government has made to coordinate with the global community on women’s rights initiatives, and recent legislation passed at both national and local levels in China provide an interesting case study for countries facing gender inequality in the workplace. The items of legislation, though sometimes drafted using international treaties as a framework, contain unique provisions that provide protections for Chinese women that are not seen elsewhere in the world. Additionally, the Chinese government’s current political goal of achieving a harmonious society signals potentially forthcoming advancements in workplace gender equality.
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The Internet, 24-hour news sources, and a host of other telecommunications advances have allowed global citizens to become instantaneously informed. With the privilege of real-time updates and acute awareness of the world’s events comes the responsibility of being more than a passive observer. Specifically, this Note focuses on the technological improvements in communication during natural disasters—improvements that can be used to assist and aid the victims of catastrophes. In the aftermath of a natural disaster, the country affected is rarely able to provide for its citizens; tsunamis, hurricanes, tornadoes, and earthquakes can (and often do) cripple an entire nation. This Note argues that a global responsibility exists to step in and help an affected country when it cannot help itself.

For instance, the 1998 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations is the first global attempt to concretely define relief efforts by other nations, without demanding compliance or a singular rigid course of action. Instead, the Convention creates a flexible framework that each member nation can adapt to its own telecommunications infrastructure. In legislating on a global scale, the Convention acknowledges the interconnectedness of the world’s people, and presents ways in which global citizens can improve one another’s existence in the hours following a natural disaster—arguably when they need help most. Continue reading →

On April 7, 2009, Richard Fentiman delivered the tenth annual Snyder Lecture at the Indiana University Maurer School of Law.

Introduction

In December 2007 the representatives of the EU Member States finally agreed on the text of Regulation 593/2008 concerning the law applicable to contractual obligations. 1 The ‘Rome I’ Regulation contains harmonized rules for choice of law in contract. It applies in all Member States from December 17, 2009, to contracts concluded after that date. This development is significant for three reasons. First, the Regulation replaces the familiar 1980 Rome Convention, 2 which previously governed contract conflicts in EU national courts. Secondly, it departs from the Convention in important ways. 3 Thirdly, being a Regulation and not a Convention, it is true Community legislation, not merely a treaty between the Member States. Rome I is part of what may be described, contentiously, as the federal law of Europe. But agreement was reached on the Regulation only at the last minute, by agreeing to disagree on one of the Regulation’s principal components. The sticking point was a single provision which exposed tensions not simply between Member States, but between different lobbies in Member States and even within national delegations. This provision begged questions of high technicality, and had exceptional practical importance. It was the stuff of choice-of-law theory, yet mobilized the finance ministries of Europe. It concerned the law governing transactions involving the world’s principal traded commodity, of which both the United States and the UK are major producers—debt. Continue reading →

On February 12, 2009, Professor Skene delivered the George P. Smith II Lecture at the Indiana University Maurer School of Law.

“While Americans might decide to limit ‘halfway’ or exotic, sciencefiction inspired technologies, such as artificial hearts or brain transfers into robot bodies, it would appear unlikely they would ever approve limitations on medical research whose focus is to discover technologies, drugs and scientific techniques which not only maintain qualitative existence but extend life.” Professor George P. Smith II. 1

Introduction

In March 2009, President Obama signed an Executive Order reversing President Bush’s Order limiting the types of human embryonic stem cells that can receive federal funding for research. Many people believe this Order signals a new era in this research. However, it is only the first step towards allowing federal funding for American scientists to do the types of embryo research that are allowed in some other countries. Also, science moves at varying speeds and the focus moves quickly from one type of stem cell research to another. At the time of writing, embryonic stem cell research is moving more slowly, due partly to reports of an unregulated stem cell procedure in Moscow [End Page 211] causing a young Israeli boy to develop tumors, and partly to new developments in research deriving stem cells without forming embryos. However, embryonic stem cell research may again advance, especially with the increased funds that are expected to become available for it. This paper suggests that if embryonic stem cell research—or any other aspect of stem cell research—ultimately produces effective treatments for human health care, it will receive broad community support, even if there have been earlier reservations about the research has have led to the new treatments. Continue reading →

Professor Zoller offers several closing thoughts, focusing on the rationales for maintaining NATO in the twenty-first century and the theme of peace through law. She concludes that NATO is vital for European security, and that NATO is here to stay for both legal and factual reasons. Continue reading →

The German Basic Law’s Regime for the use of force is evidence of and an explanation for the deep difference between Germany and the United States on security matters. It also might say something more grand about the power of law to constrain force. Continue reading →

NATO was founded to counter the Soviet Union and the Warsaw Treaty Organization. Both have been gone for over twenty years. So why is NATO still here? Part of the explanation may lie in Americans’ strong belief in the efficacy of military force. NATO remains associated in Americans’ minds with the greatest time of U.S. military power. Yet, the United States also has a strong commitment to the rule of law. The country appears overdue for a return to this other commitment. We should not be surprised to soon see the United States promoting international law again—and that could mean finally shutting down NATO. Continue reading →

Since the end of the Cold War, NATO has been mired in existential crisis. This is not to say that it has become irrelevant: it experienced a dramatic expansion of membership in the 1990s that continues today. In addition, events following the terrorist attacks of September 11, 2001, including the first-ever invocation of NATO’s article 5 collective security mechanism, signaled at least the possibility of meaningful accord. The end of the Bush Administration too carried some promise for NATO’s trans-atlanticism, especially with Barack Obama making hope and dialogue centerpieces of the foreign policy platform that launched his presidency.

Yet NATO continues to struggle to justify itself, as the 60th anniversary summit of last spring demonstrated so clearly. The run-up to that summit revealed some major fault lines. Many American policymakers view NATO as a bureaucratic bog from which Europeans extract their security without having to get their own feet wet. Europeans, on the other hand, are likelier to view NATO as the last vestige of America’s Cold War primacy. Disagreement exists also on the fundamental question of how best to advance geopolitical interests today—as reflected in the observation of one editorialist that “NATO and the United States do hard power, the European Union does soft power.” 1

The run-up to the summit also revealed consensus that Afghanistan is emerging as the test of NATO’s staying power. Continue reading →

On November 1, 2007, Professor Buxbaum delivered the ninth annual Snyder Lecture at the University of Cambridge in the Lauterpacht Centre for International Research.

It is a great honor for me to deliver the ninth Snyder Lecture. I have had the pleasure of attending many of the previous lectures delivered in Bloomington by members of the Cambridge faculty. I have also had the pleasure of hearing from those of my students who were given the opportunity to conduct research at the Lauterpacht Centre as Snyder Fellows. Our faculty is very grateful for Earl Snyder’s generosity in supporting these intellectual exchanges between our schools, and I personally am very grateful for this opportunity to address you.

I will speak today about the exercise of jurisdiction by U.S. courts over global business networks. There are many ways in which the activities of U.S. courts intersect, and have long intersected, with international business activity, and so this topic calls up in part the procedural issues that are the bread and butter of international civil litigation. U.S. courts regularly assert personal jurisdiction over foreign corporations on the basis of their activities in the United States; they apply U.S. law to foreign conduct that is seen to harm certain interests within the United States; they enforce agreements that send cross-border contract disputes over into the transnational arbitration system.

But while some of those practices are mundane and, at least in theory, unobjectionable, others are problematic, and from time to time a specific case or group of cases will trigger a resurgence of attention to the role that U.S. courts play in the international arena. I would point to the Uranium litigation of the mid-1970s 1 and the spate of Alien Tort Claims Act cases that began in the mid- to late 1990s 2 as examples of this. In this first decade of the 21st century, litigation involving international Continue reading →

Much of the attention paid to the growth in the political, economic, and strategic importance of Asia focuses on East and Southeast Asia, with China’s rise featuring most prominently in analyses. However, examination of the possible development of an international order influenced by Asian power and ideas must also include consideration of the other big, emerging Asian power—India. This article explores India’s complex role in the potential dawning and functioning of an Eastphalian international system. First, we look at features of India’s economic and political rise in the past ten to fifteen years in order to give the reader a sense of India’s place in the shift of power and influence in international relations toward Asia. Second, we examine India’s commitment to the Five Principles of Peaceful Coexistence as an ordering framework for India’s worldview and foreign policy. Third, we argue that despite India’s increasing geopolitical prominence, Indian leaders have failed to develop consistent and coherent strategies for India in relation to the shifts taking place in world politics and economics. Fourth, we argue that India’s indecisiveness may combine with massive domestic problems the country faces, such as crippling levels of continuing poverty, to render Indian power and influence increasingly impotent in and irrelevant to the evolution of an Eastphalian world order. Fifth, we explore whether India could carve a path other than irrelevance, a path that would instead make India the indispensable nation in stabilizing the Eastphalian world. By “indispensable” we mean the country that could bridge East and West in the multipolar world this century will experience and, in the process, play a decisive role in melding the lingering promise of democracy with the stubborn imperative of sovereignty. Continue reading →

Despite the growing political and academic interest in health as a foreign policy issue, much of the emerging scholarship has focused on the conceptual overview of the field or particular aspects of the health-foreign policy linkage (e.g., humanitarian action). Little in-depth analysis has been conducted on how major powers engage health as a foreign policy issue. This article attempts to fill that void by examining the dynamics of the health-foreign policy nexus in China. After an overview of the Maoist health diplomacy, it discusses the elevation of health issues in the hierarchy of foreign policy objectives in China’s reform era. Next, the article analyzes China’s SARS diplomacy, which further demonstrates the changing landscape of health and foreign policy in China. Then I analyze the defining features and dilemmas of China’s health-foreign policy interaction. While the emergence of health as an important foreign policy issue in China facilitates the fulfillment of its foreign policy goals and makes important contributions to international health cooperation, I conclude that the tensions and dilemmas inherent in the health-foreign policy mix in China pose risks and challenges to global health governance. Continue reading →