BOSTON COLLEGE
Boston College International & Comparative Law Review

Student
Publications

Volume 26 2003 Number 1

[Pages 1-34]
AMERICAN LAW AND POLICY ON ASSASSINATIONS OF FOREIGN LEADERS: THE PRACTICALITY OF MAINTAINING THE STATUS QUO
Nathan Canestaro*

Abstract:  Suspending the ban on assassinations—as established in Executive Order 12333—serves no practical purpose. The Executive Order is not an obstacle to effective prosecution of the War on Terrorism; in fact, its reach is very limited. Although common sense might suggest that “assassination” equates with the targeted killing of a specific individual, the term is in fact a legal term of art with a very narrow definition derived from the Law of War. As a result, Executive Order 12333 only prohibits a very narrow spectrum of attacks in wartime or against clear threats to national security. As the United States has not typically engaged such means to attack “leadership targets” for several decades, publicly rescinding the offer now would grant no more freedom to act and only would serve to undermine the United States’ public diplomacy abroad.

[Pages 35-76]
STRICTNESS AND SUBSIDIARITY: AN INSTITUTIONAL PERSPECTIVE ON AFFIRMATIVE ACTION AT THE EUROPEAN COURT OF JUSTICE
Sean Pager*

Abstract:  The move to strict review of gender equality cases by the European Court of Justice raises questions regarding the institutional role of the Court. Comparisons between the ECJ’s affirmative action case law and US jurisprudence serve to illuminate the very different role played by the ECJ as the central arbiter of a supranational judiciary. In its readiness to decide contextual issues better left to the national courts, the European Court has taken an “American approach” to affirmative action out of keeping with its role. Closer attention to the dynamics of the Court’s partnership with national judiciaries would serve as a step toward a functional conception of judicial subsidiarity.

[Pages 77-94]
MIRAGE OF DEFENSE: REEXAMINING ARTICLE FIVE OF THE NORTH ATLANTIC TREATY AFTER THE TERRORIST ATTACKS ON THE UNITED STATES
Michael A. Goldberg*

Abstract:  In 1949, twelve nations formed a regional alliance in an effort to counter perceived Soviet expansion, creating the North Atlantic Treaty Organization (NATO). Collective defense—assisting member states under attack by an outside country, as articulated in Article Five of the North Atlantic Treaty(has historically been its core function. Following fifty years of dormancy, Article Five was invoked after the September 11, 2001 terrorist attacks on the United States. This Note discusses the expanding role of Article Five, increasing regionalization challenges, and whether the Treaty’s obligations compel affirmative actions from its members.

[Pages 95-112]
A TRULY LEVEL PLAYING FIELD FOR INTERNATIONAL BUSINESS: IMPROVING THE OECD CONVENTION ON COMBATING BRIBERY USING CLEAR STANDARDS
Christopher K. Carlberg*

Abstract:  Combating bribery in international business has become increasingly important in a global economic environment in which deregulation and privatization are popular trends. The Organisation for Economic Co-Operation and Development’s (OECD’s) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions is an important step towards leveling the playing field for foreign companies competing for business abroad. However, this Note concludes that, in order to improve the uniform application of the Convention, the Convention’s signatory parties should: (1) adopt a minimum five-year statute of limitations requirement; (2) adopt a five-year maximum term of imprisonment for natural persons convicted of bribery; and (3) impose a fine of not less than $175,000 U.S. dollars (USD) for individuals convicted of bribery.

[Pages 113-128]
REFORMING HISTORY: TURKEY'S LEGAL REGIME AND ITS POTENTIAL ACCESSION TO THE EUROPEAN UNION
Dinesh D. Banani*

Abstract:  For the past decade, Turkey and the European Union (EU) have had serious discussions about Turkey’s possible entrance into the EU. The intensity of these talks, however, has always been tempered by Turkey’s extremely questionable human rights practices. The most marked aspects of this record are the country’s treatment of the Kurdish minority and its quashing of political dissent through the heavy-handed use of its legal system. In this note, I will argue that, despite Turkey’s increasing political and economic stature in the world, it will not be able to gain entry into the EU until it is able to sufficiently address these human rights problems to the satisfaction of the EU and the international community in general.

[Pages 129-144]
PROSPECTS FOR PROGRESS: THE TRIPS AGREEMENT AND DEVELOPING COUNTRIES AFTER THE DOHA CONFERENCE
L. Danielle Tully*

Abstract:  Intellectual property rights (IPRs) have long been the subject of contentious debate between developed and developing countries. While providing an incentive to invest in and develop new technologies, IPRs also vastly increase the cost of these new technologies to developing countries. Despite disagreement on the proper role for IPRs in the global economy, IPRs became a major element in the 1994 Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which established the World Trade Organization (WTO). Effective on January 1, 1995, the Trade-Related Aspects of Intellectual Property Agreement (TRIPS Agreement) formally linked compliance with minimum protection standards with international trade. This linkage directly affects technology flows to, and the course of development in, developing countries. While the Fourth Ministerial Conference at Doha, Qatar on November 9–13, 2001 integrated the concerns of developing countries more fully than previous Ministerial Conferences, the issue of technology acquisition and development in light of the increasing technology gap between developed and developing countries was overlooked.

[Pages 145-156]
IT'S "INSTANT CUSTOM": HOW THE BUSH DOCTRINE BECAME LAW AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001
Benjamin Langille*

Abstract:  Historically, courts have recognized a customary international law only upon finding evidence of uniform state practice over a protracted period of time. In today’s rapidly evolving global society, however, “instant custom” theorists contend that new customary international laws may form in much less time than the decades upon decades of consistent practice traditionally required. This Note considers the instant custom theory and argues that the Bush Doctrine became a new customary international law in the immediate aftermath of the terrorist attacks of September 11, 2001.

[Pages 157-170]
WE'VE COME A LONG WAY BABY (OR HAVE WE?): BANNING TOBACCO ADVERTISING AND SPONSORSHIP IN THE EUROPEAN UNION
Melissa Alegre*

Abstract:  In October 2000, Europe’s highest court struck down a Community directive that effectively banned advertising and sponsor-ship of tobacco products in the European Union. Regulation of tobacco products has been on the Community’s agenda for over a decade, but it was not until 1998 that the necessary political support to enact any such legislation became available. The broad scope of the ensuing directive reflected the increasing awareness of the harmful health effects of tobacco, but this remains a controversial topic. The court decision may only be a temporary victory for the tobacco lobby since the Community still is determined to regulate tobacco advertising and sponsorship and has other options available in pursuit of this objective.