Oregon Review of International Law

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https://hdl.handle.net/1794/11405

The Oregon Review of International Law (ORIL) is a student-run journal of the University of Oregon School of Law that publishes articles by academics, practitioners, and students that address current legal topics in international law and policy.

Digitized issues from 1999-present are available from HeinOnline (restricted to UO community members).

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Now showing 1 - 20 of 136

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, Mujib
In 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.
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, Alexa
This 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.
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."
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, Matthew
Plastic 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.
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.
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, Junghoon
After 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.
Open Access
The Fourth Branch, Separation of Powers, and Transformative Constitutionalism
(University of Oregon School of Law, 2024-05-01) Modi, Neil
Comparative 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.”
Open Access
Through a Crow-Tit and a Stork: Humanizing Poverty in Japan
(University of Oregon School of Law, 2023-05-05) Kamio, Kiyoko
This Article describes the author's endeavor as a legal educator to humanize poverty, making it more relevant to a nonlegal audience both on and beyond the university campus.
Open Access
TikTok v. Trump: The “Renegade” of Digital Fair Trade
(University of Oregon School of Law, 2023-05-05) Willson, Lindsay
This Comment seeks to comprehensively describe the TikTok controversy by highlighting the widening gap between digitization and the shortcomings of international digital trade policy.
Open Access
Truth and Reconciliation: Restorative Justice, Accountability, and Cultural Violence
(University of Oregon School of Law, 2023-05-05) Miller, Kimbirlee E. Sommer
Hundreds of thousands of Indigenous North American children were forcibly removed from their homes and held in large residential boarding schools to force tribal assimilation into White culture. Laws like the Indian Civilization Act Fund of 1819 in the United States compelled attendance for Native children, some as young as four years old, at year-round institutions far away from their homes and families. The children were systematically stripped of their culture and identities, forbidden to celebrate their own heritage, and prohibited from speaking their own Native languages. At many of these institutions, children were subjected to horrific abuse. This Comment will focus on atrocities committed at residential schools for Native American children in Canada and the United States, the efficacy of the Truth and Reconciliation Commission of Canada (TRC) in addressing these atrocities, and whether this model would be effective in the United States.
Open Access
Asynchronous Online Courts: The Future of Courts?
(University of Oregon School of Law, 2023-05-05) Xi, Chen
Asynchronous online courts combine the features of the current online court and online dispute resolution (ODR), allowing the public to communicate online asynchronously. Canada, the United Kingdom (U.K.), Singapore, and China have established various asynchronous online courts, and the new courts are highly likely to become the next generation of online courts. However, there are challenges against asynchronous online courts, as the new courts might violate the principle of direct and verbal trial, lead to paper hearings rather than oral trials, exclude those who cannot access the Internet, provide less transparency, impair court majesty, and create a mass of frivolous cases. Should asynchronous online courts be established and popularized?
Open Access
Politico-Legal Inter-State Disputes: Should the United Nations International Law Commission Be Requested to Commence Studies on the “Opportunities for Holistic Dispute Settlement?”
(University of Oregon School of Law, 2023-05-05) Chigara, Benedict Abrahamson
This Article recommends a review of the jurisdictional provision of the International Court of Justice (ICJ) to ensure internal logical coherency of the assumptions that underpin the jurisdictional mandate of the ICJ. The benefits would include the enhancement of clarity and logic both in the ICJ statutory provisions and in the practice of the court. They would ensure certainty between the literal and textual clarity of the Statute of the International Court of Justice and the actual practice of the ICJ. Article 38 of the Statute of the International Court of Justice is widely regarded as the basis for international law generally.
Open Access
Restricting Scientific Legitimacy in the Age of Biotechnology?
(University of Oregon School of Law, 2023-05-05) Smith, George P., II
This Article investigates the steps which need to be undertaken in order to ensure that scientific conduct is legitimized—and thereby recognized—as indispensable for global peace and progress. Contemporary philosophy of science embraces the positive value of scientific investigations that are not only useful and practical but also, at the same time, view biotechnology as a tool for viewing the whole of life in a positive, affirming way. Such a philosophy must seek to accommodate what may be seen as a shared partnership rather than codify an absolute sovereignty of science.
Open Access
Differing from “Us” in Religion, Customs, and Laws: The Philippines, Labor Migration, and United States Empire
(University of Oregon School of Law, 2023-05-05) Monthey, Tanya
Many industries in the United States have historically relied upon and continue to recruit and exploit workers from the Philippines. This trend reflects the supply and demand structures of labor migration first established when the Philippines was a colonial holding of the United States. The development of the Philippine economy cannot be divorced from its colonial relationship with the United States. Even after formal Philippine independence, the United States controlled the government and economy of the islands. By examining the colonial relationship between the United States and the Philippines, this Comment attempts to explain why political action, popular support, and global sympathies have failed to result in meaningful legal protections for Filipino laborers. Despite widespread and ongoing political action, Filipino laborers continue to be among the most exploited in the international labor market, a fact that is made glaringly obvious in the insecure times of a global pandemic.
Open Access
I Do, I Did, I’m Done: Copyright and Termination of Transfer in Divorce
(University of Oregon School of Law, 2022-05-04) Coates, Sarah
In a divorce, divided assets range from the mundane—homes, cars, joint bank accounts—to the downright unusual—Nobel Prizes,stuffed animals, and even human organs. But even the strangest possessions can be equitably divided by courts. That is, perhaps, until we look to the unique area of copyrights. Copyright law raises several novel conflicts when we attempt to reconcile it with the accepted principles of marital community property and the division thereof upon divorce. This Comment will explore the rights and obligations a non-creating spouse receives when awarded copyrights in a divorce with a particular focus on termination of transfer rights.
Open Access
Is the International Criminal Court Dying? An Examination of Symptoms
(University of Oregon School of Law, 2022-05-04) Smith, Stephen Eliot
The International Criminal Court (ICC) has recently been derided as a dead or dying institution. This Article briefly reviews some of the signs that the ICC may be waning in effectiveness and relevance.
Open Access
The Propaganda Conundrum: How to Control This Scourge on Democracy
(University of Oregon School of Law, 2022-05-04) Dillon, Sara
Propaganda is playing an unprecedented role in global political life. With frightening reach and ambition, political and corporate actors are using propaganda to undermine the democratic ideals of truth and transparency. Because freedom of speech is a basic right that enjoys widespread public support, and as meaningful restrictions on noxious propaganda present legal difficulties, propaganda continues to flourish as a subtle and increasingly pervasive disease, undermining the core assumptions of democratic governance. Political choices citizens make in a democratic society mean little in the absence of true and accurate information; propaganda subverts the vital link between political understanding and political choice.
Open Access
Short-Time Work: An Alternative to Ad Hoc Legislation for Saving Employment During Economic Crises
(University of Oregon School of Law, 2022-05-04) Vida, Emily
Readers hardly need to be reminded of how the sudden onset of COVID-19 in early 2020 turned the world upside down. Countries closed their borders. Toilet paper became scarce. And hospitals in population-dense areas operated at capacity. The year 2020 also saw devastating wildfires in California and Oregon, an unprecedented election cycle, and mass protests. It was a veritable dumpster fire of a year. Besides worrying about contracting the virus, seeing loved ones die, and suffering from social isolation, many workers in the United States also had to cope with losing their jobs due to the shuttering of businesses. This Comment argues that the United States should adopt an Short-Time-Work (STW) program at the federal level instead of passing ad hoc legislation as economic crises arise. Permanent federal STW legislation would allow the government to respond more quickly to economic crises, save jobs, and maintain employment relationships, signaling to employees that they are not disposable.
Open Access
Navigating International Services Trade During Health Emergencies: A Scientific Approach to Emergency Measures
(University of Oregon School of Law, 2022-05-04) Zhou, Jingyuan (Joey)
After the pandemic, global governance in trade and investment as we knew it is poised to change dramatically. After many governments imposed measures—often unilaterally—in an effort to contain COVID-19, international trade in services plummeted, which, in turn, negatively affected efforts to effectively combat the pandemic. Many measures with trade-restrictive effects appear to have been adopted out of an abundance of caution. Moreover, the unilateral nature of those measures has further impeded international services trade, regardless of the differences in delivery modality. These policies were often adopted without notifying other nations that would likely be negatively affected. The Article then draws analogies from the application of the proposed rules to the Sanitary and Phytosanitary Agreement (SPS Agreement) and concludes with the recognition of challenges ahead.
Open Access
The Lukashenko Case: Is He Persona Non Grata in the Diplomatic Sense?
(University of Oregon School of Law, 2022-05-04) Zhang, Xiaoyang
In 2020, Alexander Lukashenko was reelected as president of Belarus. Outcry by local protesters that the election was not a fair one has arguably been crushed by Belarus’s law enforcement agency. Lukashenko was, therefore, declared persona non grata in the international sphere, principally by the European Union (EU), three Baltic states, the United Kingdom (U.K.), and Canada, all of which have created their global human rights sanctions framework in the context of the United States-campaigned Magnitsky mechanism. Referencing the Vienna Convention on Diplomatic Relations as a noteworthy piece of public international law, this Article argues that the term persona non grata is incorrectly used to describe Lukashenko’s case. Sanctioning Lukashenko lacks a causal link with conventional diplomacy. Due process is the only effective means of preempting this case from coming under the spotlight of public interest and human rights debates that are affected by geopolitical considerations.