Boston College International and Comparative Law Review

BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW Vol. XXX Spring 2007 No. 2 ARTICLES Reinforcing Refugee Protection in the Wake of the War on Terror Edwin Odhiambo-Abuya [pages 277–330] Abstract: This Article examines how the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) can be used as a practical tool to enhance the protection of per- sons who have fled their home States in search of asylum in the wake of the global “war on terror.” It compares and contrasts provisions of CAT to similar provisions contained in international refugee law. This Article contends that, in some respects, the protection provisions of CAT are wider than those found in international refugee law, and, in other respects, narrower than those found in international refugee law. It concludes by suggesting strategies for meeting the challenges ahead. Settlement of Disputes Under the Central America–Dominican Republic–United States Free Trade Agreement David A. Gantz [pages 331–410] Abstract: The Central America–Dominican Republic–United States Free Trade Agreement (CAFTA-DR) is one of nearly a dozen post-North Ameri- can Free Trade Agreements (NAFTA) free trade agreements (FTAs) that the United States has concluded with nations in Latin America, the Middle East, and Asia since 2000. All of these newer agreements are based on NAFTA, but they differ in significant respects, particularly in the chapters relating to dispute settlement. Most significantly, the changes reflect U.S. government experience with NAFTA dispute settlement, particularly with regard to actions brought by private investors against the United States and other NAFTA governments under NAFTA’s investment protection provisions (Chapter 11). However, the changes also result from perceived (as well as actual) threats to U.S. sovereignty, as reflected in the President’s Trade Promotion Authority of 2002. It is too soon to determine whether these changes will have a significant impact on dispute settlement under CAFTA-DR; some may well lead tribunals to conclusions different from those that would be rendered under NAFTA. Government-to-government dispute settlement proceedings under CAFTA-DR, as under NAFTA, are likely to be infrequent unless the roster is promptly appointed. Climate Change and Tax Policy Christina K. Harper [pages 411–460] Abstract: Scientific evidence suggests that man-made greenhouse gas (GHG) emissions, especially carbon dioxide emissions, are a contributing factor to global climate change. This global climate change negatively impacts our Earth and policymakers must implement climate change policies in an effort to decrease carbon emission and mitigate its negative impacts. This Article will analyze three options for regulating GHG emissions: traditional command-and-control regulation, tradable permit markets, and taxes. Following a detailed analysis of both the theoretical and practical arguments regarding carbon taxation and alternative emissions permit trading schemes, this Article concludes that carbon taxation is the superior method of reducing carbon emissions. NOTES Antarctica’s Frozen Territorial Claims: A Meltdown Proposal Jill Grob [pages 461–484] Abstract: Antarctica has been a site of peace and scientific exploration for the last fifty years, largely due to a series of agreements known collec- tively as the Antarctic Treaty System (ATS). But the continent is not free from potential conflicts. A key compromise for ATS parties was the “freez- ing” of various countries’ territorial claims. However, these territorial claims did not go away, but merely remained hidden beneath the surface of future policies. The author argues that continued suppression of these claims will not further ATS party goals for Antarctica: peace, no military activity, and scientific inquiry. Since many countries rely on oil for their energy needs, Antarctica may become more desirable for commercial ex- ploitation if current sources become too expensive. Therefore, latent territorial claims could seriously undermine continued compromise by ATS parties. Regrettably and unnecessarily, the environment, scientific ad- vances, and international peace would all be placed at great risk. Money Talks: Putting the Bite in Participatory Rights Through International Financial Assistance Daniel Navisky [pages 485–506] Abstract: Democratic elections are one of the foundational elements of a stable, healthy, and vibrant modern state. Current treaty law guarantees four basic participatory rights: periodic and regular elections, universal suffrage, secret ballots, and non-discrimination. Those rights are bol- stered further through United Nations election monitoring and state practice. This Note argues that more must be done to guarantee true participatory rights in emerging and lesser developed nations. In particular, it proposes attaching conditions to World Bank funding that require ad- herence to the rights guaranteed under global and regional treaty law and the customary practice of states and international actors. In order to accomplish this goal, compliance with those conditions should be meas- ured through United Nations monitoring reports. Criminalizing War: Toward a Justifiable Crime of Aggression Michael O’Donovan [pages 507–530] Abstract: State parties to the International Criminal Court made history in 1998 when they agreed to include the crime of aggression as one of four crimes within the jurisdiction of the Court. The crime, however, was left undefined in 1998, and the Court’s jurisdiction over the crime of aggression has been postponed until state parties can agree to a definition at a Review Conference in 2009. Reaching such an agreement would represent the first time in history that national leaders would be bound by a specifically defined crime of international aggression with sanctions wielded by an international court. Parties to the Court, however, differ widely over two questions: whether the crime should be defined narrowly or broadly, and who should decide when aggression has occurred, thus triggering the Court’s jurisdiction over the culpable in- dividuals. The two questions have largely split state parties between those citing the demands of the current international system and those committed to basic principles of fairness. This Note suggests that by ap- plying the traditional utilitarian and retributivist rationales for the criminal law, state parties may be able to reach the most balanced and principled definition of aggression. Breaching the Great Firewall: China’s Internet Censorship and the Quest for Freedom of Expression in a Connected World Christopher Stevenson [pages 531–558] Abstract: In the final days of 2005, Microsoft Corporation made international headlines when it removed the site of a Beijing researcher from its blog hosting service. Soon, other instances of U.S. companies assist- ing in China’s internet censorship emerged. These revelations gener- ated outrage among commentators and legislators and led to calls for action. This Note examines the methods of internet censorship em- ployed by China and other nations, and explores the assistance that U.S. companies have provided to these nations. It analyzes the liability issues facing these companies in light of existing case law and statutory solu- tions proposed in the U.S. Congress. It then proposes a novel combina- tion of existing legislative proposals, recommendations from the Elec- tronic Frontier Foundation, and international cooperation as the best way to address the problem of internet censorship. REINFORCING REFUGEE PROTECTION IN THE WAKE OF THE WAR ON TERROR Edwin Odhiambo-Abuya* Abstract: This Article examines how the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) can be used as a practical tool to enhance the protection of per- sons who have fled their home States in search of asylum in the wake of the global “war on terror.” It compares and contrasts provisions of CAT to similar provisions contained in international refugee law. This Article contends that, in some respects, the protection provisions of CAT are wider than those found in international refugee law, and, in other respects, narrower than those found in international refugee law. It concludes by suggesting strategies for meeting the challenges ahead. [I was] arrested by [Government] security forces [and] raped in [my] home in front of [my] children. [I] was brutally beaten. [I] was taken to Makal prison in Kinshasa. [I] was not to receive any visits and shared a cell of 3 by 6 metres with seven other inmates. There were no proper sanitary provisions and [we] had to urinate on the floor. Every morning guards came into the cell and forced [us] to dance, [they] beat . and sometimes raped [us]. [I] was raped more than 10 times. I was regularly beaten, sometimes with whips made of tyres on which metal thread was stuck. [I] was burnt with cigarettes on the inside of [my] thighs and struck with batons. [I] was detained for one year without trial. [Eventually] with the assistance of one of the supervisors of the prison who had been bribed by [my] sister, [I] managed to escape [and fled overseas to seek asylum as a refugee]. —Pauline Kisoki * Dr. Edwin Odhiambo-Abuya is Lecturer, School of Law, Moi University, Kenya, and Ad- vocate of the High Court of Kenya ([email protected]). Educated in Kenya, South Africa, and Australia, the author completed a doctoral thesis in international human rights and refugee law

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