Volume 11, Issue 1 (Spring 2006)

This volume contains two articles and one comment on current international and comparative law issues. Available online at HeinOnline, Westlaw, or LexisNexis.

Private Rules For International Discovery In U.S. District Court: The U.S.-German Example. 11 UCLA J. Int’l L. & For. Aff. 1.

Foreign parties to lawsuits in U.S. district courts are often faced with requests for discovery of matter located outside the United States. This article focuses upon the complex challenges facing U.S. and German parties when they engage in international discovery, and offers recommendations to mitigate these challenges. We propose the use of stipulations as a way to address and defuse conflicts over discovery issues in international litigation, preferably before problems have arisen. In Part II, the procedural backgrounds of the litigants are examined. Part III of the article then presents the differing approaches to fact-gathering in the United States and Germany. Part IV outlines the long-standing controversy over the extra-territorial application of United States laws. Part V examines the reluctance of U.S. district courts to ask the courts of other nations for international judicial assistance when discoverable matter is located outside the United States. Part VI sketches rules to which American and German parties to an international civil lawsuit in U.S. district court could stipulate, pursuant to FED. R. CIV. P. 29. These stipulations would then become the basis for a protective order of the court. The proposed rules are supposed to ensure cheaper, faster, and somewhat less adversarial proceedings. Also, German sovereign interests will be taken into account.

How Can A Crime Be Against Humanity? Philosophical Doubts Concerning A Useful Concept. 11 UCLA J. Int’l L. & For. Aff. 39.

This paper offers afresh look at the philosophical tenability of the concept of crime against humanity as it developed since WWII. Its interpretative claim is that the concept has existed in a tension be- tween two approaches to conceptual validity. The first attempts to take the concept seriously-semantically, metaphorically, and, on a realist theory of language, ontologically. This approach posits that the concept signifies a category of the human condition whose treatment in the context of specific historical moments allows for a new normative language, irreducible to that of traditional jurisprudence. Examining the approach against the 1984 Barbie trial in France illustrates the tenuous relations between crimes against humanity and other jurisprudential categories and classifications of victimization. The second approach is more comfortable with a language of functional fictions and draws from the legal realism and philosophical pragmatism schools of thought. Rather than striving for metaphysical validity, this approach examines the usefulness of the concept of a crime against humanity in promoting the political goals set by a democratic society and critiques its ideological biases. The paper traces the two approaches to frameworks offered by Kant and Nietzsche, respectively. It then examines some doctrines and institutions of international criminal justice in order to revisit Hannah Arendt ‘s jurisprudence of crimes against humanity, setting it against the Hegelian notion of History. However, studying recent developments in the international law of crimes against humanity (including the Rome Treaty, ICC, ICTR, and ICTY) shows that Arendt’s conception, developed against the backdrop of the Eichmann trial, has in fact little current influence on international law in this area, which is better rationalized by the legal realist school than by approaches that seek metaphysical validation and justification. Finally, the study suggests shifting the emphasis from crimes against humanity to crimes against humanness, and offers an initial marking out of this concept.

COMMENT: Targeting Tehran: Assessing The Lawfulness Of Preemptive Strikes Against Nuclear Facilities. 11 UCLA J. Int’l L. & For. Aff. 59.

In 1981, Israel launched a preemptive attack on the Iraqi Osiraq nuclear reactor. Now a similar strike is being considered against Iranian nuclear facilities. This article assesses the lawfulness of preemptive strikes generally and a preemptive strike against Iran specifically, focusing on the new threat posed by terrorists’ potential acquisition of nuclear material for a “dirty bomb. ” The article begins by evaluating preemptive strikes on nuclear facilities against the criteria for self-defense-necessity, immediacy, and proportionality–and then turns to broader criteria for “lawfulness,” such as environmental damage and harm to the legal rules governing the use of force. After developing criteria to evaluate the lawfulness of a preemptive strike, the article concludes that a preemptive strike against Iran at this point would not satisfy the outlined criteria and thus would be unlawful.

COMMENT: “I’m Calling My Lawyer… In India!”: Ethical Issues In International Legal Outsourcing. 11 UCLA J. Int’l L. & For. Aff. 99.

The controversy surrounding “outsourcing” has intensified in re- cent years. While proponents view it as improving business performance by shipping support functions overseas and thereby allowing direct employees to focus on complex and core business functions, detractors view it as robbing domestic workers of good jobs by relocating them overseas to lower paid and possibly less qualified foreign workers. Like many other industries, law too has begun wetting its feet in the world of outsourcing. One study estimates that America will loose almost 75,000 legal jobs to poorer countries by 2015. Nevertheless, most lawyers and experienced paralegals do not view their jobs as vulnerable to outsourcing, citing insurmountable jurisdictional constraints and quality control concerns. This comment provides both a description of the current state of le- gal outsourcing and an analysis of the various issues ethical issues it presents. These include protecting client confidences, avoiding conflicts of interest, malpractice risks when relying on the work product of an “outsourced” lawyer, disclosure of legal outsourcing to the client, and compliance with state unauthorized practice of law statutes. The comment also surveys international agreements addressing cross-border legal practice and analyzes whether their frameworks can be successfully applied to regulate international legal outsourcing. This comment finds that outsourcing does pose several complex, though not necessarily insurmountable, ethical issues and that mechanisms to formally regulate international legal outsourcing are currently lacking and would be quite difficult to achieve. Nevertheless, I also conclude that attempts to formally regulate international legal outsourcing will only come about if and when it generates an economic impact substantial enough to generate concern from attorneys and other legal professionals. In the meantime, more daring U.S. law firms willing to accept the possible risks of international le- gal outsourcing will reap the economic benefits of this phenomenon at the expense of their more cautious counterparts.

COMMENT: ‘Hiding Corpses’ Within Sovereign Borders: Why The World Fails To Prosecute Genocide. 11 UCLA J. Int’l L. & For. Aff. 161.

It has been almost 60 years since the ratification of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, where the crime of genocide was officially given its status as a “peremptory norm. ” Despite the Convention’s call for global vigilance and its investment in the international community of a nonderogable duty to prosecute genocide perpetrators, a mere two genocides have undergone international prosecution. What explains this reluctance to prosecute? This Comment argues that the international community’s ineffectiveness in prosecuting genocide derives fundamentally from the notion of sovereignty. First, the international system’s use of the sovereign nation-state as the relevant unit in discussing issues of global importance often reduces acts of genocide to mere domestic strife, taking them out of the scope of international concern. Second, even when genocide is perceived as an international problem, states are unwilling to call for international jurisdiction to prosecute, since doing so is deemed as impinging the sovereignty of the state where genocide is said to have taken place by failing to defer to the preferred, domestic means of prosecution. Third, although the prohibition against genocide receives jus cogens status, and therefore should transcend sovereignty, jurisdiction to prosecute under the Genocide Convention is consent-based; thus, while theoretically the international community has the ability and duty to bring any actor suspected of genocide to prosecution, the structure in place for pursuing prosecution requires state willingness to be subjected to an international tribunal’s jurisdiction. Taking the position that the prosecution of genocide is an important and neglected task, this Comment suggests ways in which the international community might more consistently bring genocide prosecutions. Among these suggestions is an argument for breaking free from the sovereignty-based international system, as well as a proposal for working within the current system to motivate state action. Lastly, this Comment discusses the prospect of using the International Criminal Court as a forum for genocide prosecution.

Available online at HeinOnline, Westlaw, or LexisNexis.

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