James D. Fry

China's Version of the US Foreign Corrupt Practices Act and the OECD Anti-Bribery Convention: Comparing Ravens and Writing Desks?

The Peoples Republic of Chinas National Peoples Congress amended the 1997 Criminal Law in February 2011 in order to cover bribery of foreign government officials or officials of international public organisations, with the Amendment coming into effect on 1 May 2011. Known as the Eighth Amendment to the Criminal Law, this Amendment, inter alia, brought the PRC into line with Article 16(1) of the UN Convention against Corruption.

The Roots of Historic Title: Non-Western Pre-Colonial Normative Systems and Legal Resolution of Territorial Disputes

The validity of historic or ancient title to territory has been tested in numerous international judicial proceedings, both in the International Court of Justice and in international arbitration. Historic title usually originates in ancient normative systems, including tributary, feudal, sultanate, and Islamic systems that predate the Western international legal system. Nevertheless, the rules against which historic title has been tested in international judicial proceedings generally require that the original titleholder be a state or a central authority that exercised territorial sovereignty over a defined space to the exclusion of other sovereign powers. The rules that apply specifically to these ancient normative systems, where allegiance to authority was personal or religious rather than territorial, have been seen as irrelevant compared to the more contemporary determinations of historic title. The only exceptions have been the French medieval customary norm frankalmoign , which the international arbitral tribunal in the Minquiers and Ecrehos case cited as evidence that the English king exercised territorial sovereignty over the disputed islands, and the personal allegiance of the Orang Laut to the Sultan of Johore, coupled with the recognition accorded to the latter by the great maritime powers, which the International Court of Justice in Malaysia v. Singapore found sufficient to prove the historic title of Malaysia over Pedra Branca/Pulau Batu Puteh and Middle Rocks. The principles by which historic title were adjudicated in these cases appear to be the same principles by which the Western powers dealt with the claims of the Peoples Republic of China and Vietnam to the Paracel Islands and the Spratly Islands, not only during the colonial period but also after the Second World War. This analysis suggests how the International Court of Justice or an international arbitral tribunal might, if given the opportunity, resolve these South China Sea disputes. Readers might also find this analysis to be particularly relevant to other disputes involving historic title, including the East China Sea disputes, although the focus of this article is on the South China Sea disputes. States and other commentators are left to rely on their own preferences and allegiances in reaching their own normative conclusions using the novel analysis provided by this article.

Ethiopian Exceptionalism and the Eritrea-Ethiopia Boundary Commission

This article explores the reasons why Ethiopia relied on legal resolution with its territorial boundary dispute with Eritrea when it could have relied on its relative military power to dictate the terms and conditions of peace. It dismisses Ethiopias familiarity with Western-style legal resolution and its relative lack of nationalism as potential explanations, instead focusing on Ethiopias general sense of exceptionalism from its history as an African and global leader and as a respecter of international law, among other key factors. Ethiopias example provides considerable hope that legal resolution can be used more frequently with politically sensitive disputes between states.

Towards an International Piracy Tribunal: Curing the Legal Limbo of Captured Pirates

The number of pirates from Somalia acting in and around the Arabian Sea and Arab Gulf seems to have grown exponentially in recent years, catching numerous headlines and the world’s attention in the process. Although naval powers have devoted substantial energy and resources to conducting various enforcement missions, little has been done to prosecute their captured pirates. At present, the capturing powers usually either release the pirates shortly after they are captured or ‘dump’ them for trial at a developing African country. This practice hardly can be said to provide an effective deterrence to piracy. To aid in deterring these pirates through proper prosecution, the establishment of an international judicial organisation in the region – perhaps in Qatar – that focuses specifically on these types of crimes and criminals might be helpful in terms of convenience and legitimacy. This article is the first to explore this possibility from a legal perspective. Critics will be quick to question whether use of an already existing forum might be more viable. Expanding the International Criminal Court’s jurisdiction to cover piracy is one option, although at least two factors frustrate this option. First, adding piracy to genocide, crimes against humanity, war crimes and the crime of aggression might dilute the International Criminal Court’s focus on the ‘most serious crimes’. Second, without the cooperation of the United States and the People’s Republic of China, which are not members of the Rome Statute, it will be difficult for captured pirates by these naval powerhouses to be tried by the International Criminal Court (ICC). Another option is to establish a specialised piracy chamber within the International Tribunal for the Law of the Sea (ITLOS). At least three factors frustrate this option. First, the United Nations Convention on the Law of the Sea (UNCLOS) requires the consent of private

Towards an Agreement on Investment in Mercosur: Conflict and Complementarity of International Investment Law and International Trade-in-Services Law

This article is the first to analyze the 2010 guidelines established by Mercosur’s Common Market Council for drafting an Agreement on Investment for Mercosur, which up until now has lacked any regulations for the promotion and protection of investment. This agreement is important not only because it potentially would fill a large gap in Mercosur law and strengthen Mercosur’s emergent common market, but also because it ostensibly represents the first time that Brazil has shown a real willingness to create an international system for investment protection, which represents a monumental breakthrough for Brazil. However, the guidelines (provided at the end of this article in an appendix) appear to have been created using the Protocol of Montevideo on Trade in Services as the model, as opposed to the more directly relevant norms from the realm of international investment law. This article explores whether this approach will lead to an international investment agreement that adequately promotes and protects investment in Mercosur. This article asserts that a better approach would be to use models from the realm of international investment law because these types of protections are needed in order to reassure investors. The sub-working group charged with drafting this agreement still is working on the draft agreement. Therefore, this article aims to influence that drafting process and subsequent debates over this draft agreement prior to its conclusion.