Oregon Review of International Law : Volume 25 (2024)
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Item Open Access Producer Responsibility Organizations: An Essential Part of an International Solution to Plastic Pollution(University of Oregon School of Law, 2024-05-01) McMillen, MatthewPlastic pollution is causing irreparable harm to marine wildlife and the environment. The alarming buildup of plastic pollution is also continuing to negatively affect humankind, and current international law is insufficient to solve this crisis. This Comment proceeds in four parts. Part I summarizes the harmful effects of plastic pollution and explains why this crisis must be solved. Part II analyzes the current shortcomings of international law in this area. Part III explains the theory of Extended Producer Responsibility and introduces Producer Responsibility Organizations. Lastly, Part IV explores how the United Nations should incorporate Producer Responsibility Organizations into its new treaty.Item Open Access Seafarer Abandonment and the Maritime Labor Convention: An Examination of Its Effectiveness and Future Solutions(University of Oregon School of Law, 2024-05-01) Blaskowsky, AlexaThis Comment will examine how the Maritime Labor Convention (MLC) has failed to fully address seafarer abandonment. Part I discusses how the International Labor Organization (ILO) and the International Maritime Organization (IMO) regulate the maritime shipping industry, the dispute resolution process for seafarer abandonment, and the 2014 MLC amendments, which went into force in 2017. Part II addresses the challenges facing the MLC, such as a lack of enforcement, failure to address issues beyond repatriation, issues arising from the manner in which the MLC was ratified, and challenges faced as a result of COVID-19. Part III addresses some future solutions to improve the MLC.Item Open Access “Float like a Butterfly, Sting like a Bee”: A Discussion of the Tolerance Limits for Drone Attacks Under the International Norm(University of Oregon School of Law, 2024-05-01) Kim, Jongho; Hwang, JunghoonAfter the U.S. Embassy in Baghdad was attacked, an MQ-9 Reaper drone carried out the assassination of Qasem Soleimani, commander of the Quds Force (Elite Army of Iranian Revolutionary Guard). Concerns have emerged about the legal issues related to drone attacks, a countermeasure against North Korea’s continued nuclear tests, and the theory of a preemptive strike against North Korea’s nuclear missile facilities. State agencies’ assaults or preemptive attacks against people or facilities that threaten the safety of a country are referred to as targeted attacks and are gaining attention as a new means of force in the international community, including the United Nations. Preemptive strikes based upon anticipatory self-defense are permitted only in proportion to the extent that the threat of an enemy’s attack is imminent and there is no other means of defense under international law. Since the 9/11 terror attacks in 2001, it has been argued that the enemy’s ability and goals should be considered as more important criteria than the imminence of the attack. In the case of terrorist groups or rogue states that are developing weapons of mass destruction (WMD), threats are difficult to detect in advance and can be devastating if overlooked, so mitigating the requirements for the imminent nature of the attack should virtually allow for prevention.Item Open Access The Status of “New Rights” Before the African Human Rights Commission and Court(University of Oregon School of Law, 2024-05-01) Jimoh, MujibIn 1986, the United Nations General Assembly (UNGA) adopted Resolution 41/120, which provides quality control for introducing new rights under international law. Under the Resolution, five criteria must be fulfilled: the new rights must (1) be consistent with existing international human rights; (2) be of fundamental character; (3) be sufficiently precise; (4) provide realistic and effective implementation; and (5) attract broad international support. Despite this heightened standard, the effort to introduce new rights has continued in the 21st century, with more than fifty new rights in queue. These new rights are either derivative from existing rights or freestanding. For its part, the UNGA seems to have been abiding by the UNGA resolution’s quality control practice. Over the last twelve years, it has recognized only two new rights through its resolutions—the right to a clean, healthy, and sustainable environment in 2022 and the right to water and sanitation in 2010. This method of recognizing new rights through UNGA resolutions raises an issue. On the one hand, UNGA resolutions are generally not binding under international law. On the other hand, the meticulousness and the time taken by the UNGA before recognizing these new rights could lead to the view that those rights have become customary international human rights norms. Yet, any attempt to argue that all new rights recognized by the UNGA through its resolutions have become customary international law is likely to be controversial.Item Open Access Chief Justice Dixon on Judicial Integrity: Lessons for Judges when Interpreting Constitutions(University of Oregon School of Law, 2024-05-01) Thompson, Keith"In this Article, I suggest that Chief Justice Dixon considered that judicial virtue did not allow any judge to follow his own lights when precedent, established custom, or constitutional convention dictated a contrary result. In later Parts of the Article, I relate Chief Justice Dixon’s famous 1952 statement about “strict and complete legalism” to both judicial integrity and freedom of religion at common law. I suggest that Chief Justice Dixon’s primary concern when he became Chief Justice was not to talk about judicial method but rather to signal judicial virtue to all Australian judges, present and future. Not only does Chief Justice Dixon provide lessons for Australian judges but for judges everywhere grappling with these issues, including those in the United States."Item Open Access The Fourth Branch, Separation of Powers, and Transformative Constitutionalism(University of Oregon School of Law, 2024-05-01) Modi, NeilComparative constitutional law, generally, and the Global South, in particular, have witnessed two distinct and emerging movements in the past decade. The first is a proliferation of the “fourth branch” of the State. These institutions refer to those constitutionally entrenched bodies that do not fall neatly within the tripartite structure of separation of powers. They are tailor made and range from electoral to human rights commissions, tasked with securing specific constitutional norms. The second movement is “transformative constitutionalism.” Narrowly construed, transformative constitutionalism is but another interpretive tool that select constitutional courts employ. More broadly, and crucially, however, it has come to represent a constitutional vision. This vision demands a state commitment to broadscale social transformation, with substantive equality at the heart of this movement, where the constitutional machinery and its functionaries, comprising the legislature, judiciary, and executive, actively pursue a transformational “mandate.”Item Open Access The Critical Date and the Dispute over Islands in the Strait of Hormuz: Abu Musa and the Tunbs(University of Oregon School of Law, 2024-05-01) Rossi, Christopher R.An intractable sovereignty dispute over three Lower Gulf Islands in the Strait of Hormuz, a critical energy chokepoint, prompts a reconsideration of the ambiguities and tensions associated with international legal mechanisms to establish title to territory. Vagaries of history and competing narratives inform parochial perspectives of the disputants, the United Arab Emirates (UAE) and Iran, but tend to focus decision-maker attention on establishing a critical date on which to assess competing claims. This Article interrogates the significance of the critical date, noting its ontological development and shortcomings, and problematizes the significance of the critical date considering complexities associated with international law’s reliance on effectivités. Liberal internationalism’s chimerical emphasis on finality cannot escape the tensions associated with letting bygones be bygones through reliance on the critical date.