Santa Clara Journal of International Law, Volume 2
Space-Based Fundamental Research and the ITAR: A Study in Vagueness, Overbreadth, and Prior Restraint
Fundamental research is openly conducted science and engineering research carried out at institutions of higher education in the United States. Faculty, students, collaborators and other researchers in these institutions engage in the free, constant and lively exchange of ideas with their peers in the U.S. and abroad. Based on changes made by Congress in 1999, universities operating in the public domain and carrying out unclassified space-based research in various disciplines may find that they are not allowed to involved foreign students, faculty and collaborators in the research unless they obtain an export license from the State department. Based on ITAR treatment of "associated equipment", "related systems", and "payloads", similar licensing issues emerge with regard to academic endeavors in aero- and astronautics, robotics, nanotechnology, mechanical and electrical engineering, optics, remote sensing devices, and computing and data acquisition systems. This paper explores ITAR's minimally implemented National Security Decision Directive as it relates to spacecraft-related fundamental research as well as how the Directive imposes licensing restrictions on the dissemination of information, falling within the realm of protected speech. The author critiques ITAR policies and calls for openness in fundamental research as well as the participation of an international array of faculty, students and collaborators.
The World Trade Organization's Dispute Settlement Body grew out of decades of experience and the frustrations of sovereign nations regarding the method of settling international conflicts between states over tariff and trade issues. This article discusses the historical development of the World Trade Organization's dispute resolution system. The first section analyzes a number of agreements and proposals entered into and put forward during the period from 1947 through 1990. The second section addresses the instrument which inaugurates the World Trade Organization's current dispute settlement procedure and further describes a number of submissions by nations for improvements to the mechanism.
Non-State Actors in the Nuclear Black Market: Proposing an International Legal Framework for Preventing Nuclear Expertise Proliferation & Nuclear Smuggling by Non-State Actors
While there are a number of disincentives that prevent states from participating in the nuclear black market, most of these deterrents do not apply to non-state actors. This article focuses on the difficulties this situation presents in a time of global terrorism. The author points out that terrorists already have the money, means and motive to build or purchase nuclear devises. In analyzing this issue the author proposes two options. First, member parties could amend one of all of several existing treaties of the subject. Second, the international community can draft a new treaty or convention on nuclear smuggling and proliferation that focuses on preventing non-state actors from participating in the nuclear black market. After a thorough analysis of each of these options the paper concludes that the latter option is the best and most effective means of combating nuclear terrorism.
Comment: Foreign Workforce and Bank Reform: Changing the Legal Landscape and Corporate Governance Levels in China
While China has recently enjoyed positive economic indicators, the corporate governance structure has gone largely unchecked. This note argues that economic growth in China will not continue without major reforms in corporate governance. By providing a two-tiered corporate governance solution based on economic reform in a bank-centric economy and human resource allocation utilizing foreign and local workforces, the author provides a structure from which China's economy could continue to flourish. Discussing briefly Chinese economic history and outlining the issues surrounding China's corporate governance problems, this note highlights the risks to China's economic development unless economic reforms to increase corporate governance levels do not improve.
Comment: The International Criminal Court's Quest to Protect Rape Victims of Armed Conflict: Anonymity as the Solution
In response to the use of rape as a wartime strategy, modern international criminal courts and tribunals have developed laws and customs to prosecute perpetrators while protecting victims and witnesses. This note addresses protection for rape victims by critically analyzing the statutes and rules of procedure and evidence for the International Criminal Court and the two war crimes tribunals, the ICTY and the ICTR. By comparing and contrasting the ICC provisions with the ICTY and ICTR, the author shows not only how the ICC created a more comprehensive victim protection program than the others, but also gives insights into the possible shortcomings of the ICC witness/victim protection program. Most specifically, the note looks to Rule 81 of the ICC Rules of Procedure and Evidence seeking to resolve the ambiguity of the rule and calling for strict and total anonymity for victims who testify in court, as well as developing a balancing test to help courts protect both the victims and the rights of the accused.