31 January 2006

New Articles Global Jurist

Global Jurist (Berkley Electronic Press) has notified these new articles in the peer reviewed GJ Frontiers and GJ Advances on Nationalist International Law, Genetic Engeneering and Indigenous Peoples and Fraud in German and Nordic Legal Systems. Here are the links and abstracts:

Alejandro Lorite Escorihuela (2005) "Cultural Relativism the American Way: The Nationalist School of International Law in the United States", Global Jurist Frontiers: Vol. 5: No. 1, Article 2. Link to full-text

This article examines a fairly recent, exponentially growing, and increasingly unavoidable body of international legal scholarship in the United States of America. This scholarly movement is here labeled "Nationalist International Law" (NIL). Considerable debate in American international law circles surrounds at present two lines of questions raised in the writing of individuals that are here associated with NIL. The first line deals with the status of international law in the United States' constitutional order and in particular the role of federal judges in enforcing international legal norms. The second broad area of debate concerns the nature of international law independently of domestic legal orders, and especially whether it should be considered law at all, as well as the proper method to be applied to its study. The type of writing, of arguments, and of methodology differ depending on the type of debate: in the first one the problems are framed as (mainly) ones of constitutional law, whereas in the second the problems are presented as mainly ones for political science to solve. The main argument of the article is that beyond this disciplinary divide, and beside the mere fact that the same people sometimes participate in both debates, the two broad types of interventions made by people associated here with NIL are united by a common methodological basis and project. In the combination of the two we can truly witness the contours of a scholarly movement of "Nationalist International Law" and explore the more important consequences of its enterprise for the discipline and the life of international law. The first part of the article presents a background image of academic activity as a form of politics, in order to underscore that what matters here is not the obvious political alignment of individual academics, but the dynamics of a scholarly dialogue that both highlights and obscures the politics of international law. The second part reconstructs NIL's scholarship as a collage of three domains of intervention, the "outer realm", the "inner realm", and the "sovereign border", corresponding to different modes of writing and intervention on the part of NIL. The third part presents the figure of "imperial sovereignty" as the intellectual and political outcome of NIL's unifying methodological nationalism, particularly as it results from NIL's debate with the liberal internationalists' self-positioned alternative. Finally, concluding thoughts are proposed on international legal nationalism, NIL's reactionary rhetoric and xenophobic epistemology, and the space left for a so-called European contribution to international legal dialogue.

Haoliang Wu and Bingbin Lu (2005) "Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights", Global Jurist Frontiers: Vol. 5: No. 1, Article 3. Link to full-text

Genetic engineering is one of the most advanced technologies in the world and can bring vast profits to developers by patenting resultant achievements. But genetic engineering must be based on original genetic materials. For obtaining such materials, developers travel around the world, especially to genetically rich areas in developing countries, to prospect for valuable genetic resources and bring back for research and patent derivate products. However a lot of disputes have arisen from such patents, such as the Enola patent dispute on Mexican traditional crop mayocoba bean and the patent dispute on sacred plant Ayahuasca between people and one U.S. Company. Indigenous people, who live in the origin areas of genetic resources for a long history, have established traditional and cultural genuine relation with some living species. These disputes revealed that some genetic engineering exploitation and patents based on certain species may be severely offensive against indigenous people's spiritual, religious, or cultural traditions. Although genetic engineering achievements' patentability has been argued for a long time, the TRIPs Agreement requirement and the world's legislation trend, either in developed countries such as the U.S., European Union or in developing countries such as China, have indicated that genetic engineering products and processes are legitimately patentable. But some loophole exists in the patent acquisition procedure of current legislation, which allows such offensive patents to be granted. To prevent such offensive patents, one prior consents solution is proposed in this article, which requires genetic engineering developers to obtain prior consents from origin countries of genetic resources before they exploit these resources and patent derivate achievements. This solution is based on the Convention on Biological Diversity, which affirmed country's sovereignty over their genetic resources and allowed countries to regulate and manage genetic resources in their territory. The Convention on Biological Diversity does not conflict with IPR legislation, in particular the TRIPs Agreement and the obligations under both treaties should be respected. The implementation of this proposed solution is based on the establishment of national genetic resources authority, which generally manages its country's genetic resources and works as indigenous people's representative with the authorization of state government. This solution should be implemented in three levels: domestically, transnationally and globally. Therefore, offensive genetic engineering patents could be prevented both by such authority's examination and granting prior consents before developers' access to genetic resources and by national patent administration's examination on prior consents proof from origin country's authority before granting patents.

Jaakko Husa and Jussi Tapani (2005) "Germanic and Nordic Fraud - A Comparative Look Under the Surface of Commonalities", Global Jurist Advances: Vol. 5: No. 2, Article 2. Link to full-text

This article studies the similarities and differences between criminal fraud, i.e. deception punishable under criminal law, in Germanic and Nordic legal systems. The authors compare how certain types of fraudulent behaviour are criminalised and, more profoundly, paradigmatically understood in the legal systems of Germany, Denmark, Finland, Norway and Sweden. Also, to a lesser extent, the law of Switzerland and Austria is taken into account. The first chapter is a concise introduction, followed by the main body of the work which presents the foundational background, ideas and the chosen approach. The next part offers a reconstruction of general legal landscapes in Germanic and Nordic law concentrating on the nature of judicial thinking and judicial mentality. Then criminal fraud is looked into through comparative matrix and specific attention is paid to the structure of law, the impression given by major textbooks, underlying theoretical conceptions concerning fraud, the significance of the mental state of the victim, and a tentative demonstration of the specific ways of thinking in each of the compared systems. The last part contains comparative discussion and a more general theoretical idea according to which detailed comparative study may reveal micro-level differences under the surface of commonalities.

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