BOSTON COLLEGE
Boston College International & Comparative Law Review

Student
Publications

Volume 27 2004 Number 1

[Pages 1-98]
PEOPLES OR PERSONS? REVISING RAWLS ON GLOBAL JUSTICE
Gary Chartier*

Abstract:  John Rawls’s The Law of Peoples offers an account of international justice grounded in a hypothetical contract between “peoples.” I argue that a model of transnational justice rooted in a hypothetical agreement among deliberators representing individual persons—like the one that provides the basis for Rawls’s account of domestic justice—would be preferable. In Part I, I focus on Rawls’s idea of a “people” before critiquing his almost non-existent argument for beginning with peoples rather than persons. In Part II, I examine the nature of the human rights protections that follow from Rawls’s starting point and the appropriate responses of liberal societies to violations of these protections. In Part III, I explore and criticize Rawls’s perspectives on international economic aid and the rules of warfare.

[Pages 99-114]
BATASUNA BANNED: THE DISSOLUTION OF POLITICAL PARTIES UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS
Thomas Ayres*

Abstract:  This Note reviews the history of Basque terrorism in Spain and the Spanish’s government’s recent decision to ban Batasuna, the political party affiliated with the militant group, ETA. Although Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms affords Spanish citizens the freedom of association, it recognizes Spain’s need to protect its citizens from terrorist violence. This Note argues that the European Court of Human Rights, based on relevant case law, will most likely find that Batasuna’s dissolution does not violate Article 11 because it is necessary and proportional to the end of protecting Spain’s democratic system.

[Pages 115-130]
DIVIDE AND CONQUER? THE RUSSIAN PLAN FOR OWNERSHIP OF THE CASPIAN SEA
Ben N. Dunlap*

Abstract:  The search for alternative sources of oil has renewed U.S. interest in the Caspian Sea. Bordered by Russia, Azerbaijan, Iran, and the Central Asian states of Kazakhstan and Turkmenistan, the Caspian Sea contains up to thirty-three billion barrels of proven oil reserves. The legal status of the Caspian has remained unresolved since the collapse of the Soviet Union, however. In the early 1990s Russia joined with Iran to argue for common ownership of the sea by all five states, aiming for veto power over Western involvement in the region. Now, Russia argues for dividing the seabed (and the oil and gas underneath it) into national sectors, while leaving most of the surface waters for common management and use. The Russian solution offers political and economic benefits to both Russia and the United States in the short run, but may be an unsound basis for long-term stability in the Caspian region.

[Pages 131-146]
THE COTONOU AGREEMENT: WILL IT SUCCESSFULLY IMPROVE THE SMALL ISLAND ECONOMIES OF THE CARIBBEAN?
Regina Gerrick*

Abstract:  On June 23, 2000, after eighteen months of negotiations, the European Union (EU) and its Member States signed a new partnership agreement with the African, Caribbean, and Pacific (ACP) states in Cotonou, Benin, called the Cotonou Agreement. This twenty-year partnership agreement with seventy-seven ACP states replaced the Lomé Convention, which had provided the structure for trade and cooperation between the ACP states and the EU since 1975. The Cotonou Agreement focuses on poverty reduction as its principal objective, which will be achieved through political dialogue, develop-ment aid, and closer economic and trade cooperation. This Note discusses the structure of the Cotonou Agreement and analyzes the various effects the Agreement will have on the ACP countries, par-ticularly, the countries of the Caribbean. It concludes that, despite its objectives, the Agreement will likely contribute to a decline in the economies of the ACP nations.

[Pages 147-160]
AN (UN)LIKELY CULPRIT: EXAMINING THE U.N.'S COUNTERPRODUCTIVE ROLE IN THE NEGOTIATIONS OVER A KHMER ROUGE TRIBUNAL
Gerald V. May III*

Abstract:  This Note analyzes the breakdown in the negotiations between the United Nations and the Cambodian government over a criminal tribunal to try the surviving senior leaders of the 1975–79 Khmer Rouge regime. A careful study of the Cambodian legislature’s tribunal law and the nature of the United Nation’s objections to the law reveals that Cambodia is not the source of the stalemate. Contrary to prevailing Western views and the assertions of several prominent human rights organizations, the United Nations is the real stonewalling party, and its proposed amendments do not bolster the legitimacy of the tribunal or improve its ability to effectively and fairly prosecute Khmer Rouge leaders. Recent developments only confirm this view of United Nations as an obstructionist. The Secretary General’s continuing opposition to the tribunal law’s framework for domestic/foreign cooperation threatens to undermine a tentative agreement on U.N. participation in the tribunal.

[Pages 161-172]
THE ROLE OF INTERNATIONAL HUMAN RIGHTS AND THE LAW OF DIPLOMATIC PROTECTION IN RESOLVING ZIMBABWE'S LAND CRISIS
Jonathan Shirley*

Abstract:  Zimbabwe’s most recent land reform program has targeted thousands of commercial farms for compulsory acquisition. This Note analyzes what protections and remedies reside in international human rights law and the law of diplomatic protection for commercial farmers deprived of their property as a result of this program.

[Pages 173-185]
SECURITY COUNCIL MEDIATION AND THE KASHMIR DISPUTE: REFLECTIONS ON ITS FAILURES AND POSSIBILITIES FOR RENEWAL
Sumathi Subbiah*

Abstract:  India and Pakistan’s conflict over the legal status of Kashmir threatens the security of the entire region. In its early mediation efforts, the Security Council attempted, but failed, to bring about a permanent resolution. This Note argues that one reason for the failure was the Security Council’s view of the dispute as primarily a political dispute without referring sufficiently to the legal framework of Indian and Pakistani claims to Kashmir. This Note further argues that, in light of this earlier failure, the Security Council could reinsert itself as a mediator by understanding this failure and by reengaging India, which has become resistant in the last thirty years to international mediation in Kashmir.