2010-2011 LL.M. Student Profiles and Statistics
Class of 2011
The students who constitute the LL.M. class at the Fletcher School of Law and Diplomacy are spirited and driven, possess impressive academic credentials, diverse life and work experience, and exhibit a deep engagement with international law. They enrich, and are enriched by, the Fletcher School.
Number of enrolled students: 15
Average age: 29 (range from 23 to 46)
Gender: 60% female; 40% male
Nationality: 93% international; 7% U.S.
Countries of nationality represented by the Class of 2011: Canada; Georgia; India; Lithuania; Malaysia; Mexico; Nigeria; Pakistan; Turkey; United States; Vietnam
Languages Spoken: Arabic; Armenian; Bahasa Melayu; Cantonese; English; French; Georgian; German; Hindi; Ibo; Italian; Korean; Lithuanian; Malayalam; Mandarin; Russian; Sinhala; Spanish; Swahili; Tamil; Telegu; Thai; Urdu; Vietnamese
International Arbitration Vis-a-vis Shari’a Law:
its Perception and Reception in the Islamic Nations
Languages spoken: English, Hindi, Telugu
Thesis Advisor: Professor Jeswald W. Salacuse
The Shari’a laws have been in existence from around 600 AD, since the advent of Islam in the Holy region of Mecca and Medina. This study seeks to examine the emergence of laws in Islam, their diffusion in the society and creation of their binding character on each person who follows the faith. The various origins of Islamic law from the revealed to non-revealed sources, the methodology to deduce them from the religious texts and the application of those laws in the field of arbitration have been outlined. This thesis has delved into the foundations of arbitration in Islam, its development over the course of years and its present stand in the Islamic nations. The primary schools of Islam have similar as well as differing views on arbitration, its practices, capacity and legitimacy. This report reviews the various opinions of scholars and examines them under the light of practices in the current international arbitration scenario to discern whether there is any harmony between the Shari’a perspective and other perspectives in the area of arbitration.
The prevalent international arbitration has evolved as a result of western legislation, practice and interests and thus, is seen as foreign judicial institution rather than an alternative dispute resolution method. Therefore, the main analysis of this thesis is to highlight possible conflicts between international arbitration and Islamic law. To do this, a number of case laws from specific countries have been assayed and a review of arbitration codes adopted by these states has been carried out. Finally, this study critiques the advantages or disadvantages of international arbitration as an adjudication process especially in the Islamic countries. Suggestions resulting from this study have been outlined in the conclusion of this thesis.
Spandana Battula received her Bachelor of Law from Osmania University in 2009 and was admitted to the Bar Council the same year. She also completed a Post-Graduate Diploma in Alternative Dispute Resolution from the Nalsar University. She received a certificate from The Hague Academy of International Law for completing a course in Public International Law and a certificate from WIPO Worldwide Academy for “General Course on Intellectual Property.” Ms. Battula has worked as a judicial clerk in a Judge’s office, legal trainer & content developer in an educational institute and interned at the National Human Rights Commission, a corporate law firm and an NGO. At Fletcher, she is interested in studying International Organizations, Human Rights and Diplomatic Relations.
A comparison of the Affirmative Action policies and
laws in political participation and higher education
between India and United States
Languages spoken: English, Hindi
Thesis Advisor: Professor Louis Aucoin
The world’s largest democracy and the world’s oldest democracy share quite a few common features. The framers of the Indian Constitution were greatly inspired by the American constitution and the American experience with democracy. In fact, the Equal Protection clause has been nearly incorporated verbatim into the Indian Constitution (Article 14). However, one of the most striking similarities between the two countries is the adoption of Affirmative Action (“AA”) programs. In both countries certain sections of society have historically been subjected to discrimination and been subjected to oppression. In the US, the discrimination has primarily been on the grounds of race, whereas in India the discrimination is entrenched in the caste system prevalent in the country. Further, historically the discrimination in both the countries was social state sponsored and in both of them the state has been a major instrument attempting to eliminate these discriminations. However, this where the similarity ends- The means adopted by both the countries to implement the AA programs are widely different and have also been given different interpretations by the judiciary of both the countries.
One of the first and in my opinion the primary difference is the source and foundation for such programs. The Indian Constitution explicitly mandates the government to take steps and measures to uplift the certain ‘class’ and ‘section’ of society. Therefore, unlike the US, the judiciary is not required to undertake the validity of the AA program per se. The second main difference is in the means of implementation. The Indian government has decided to follow the path of reservations and to implement the quota system, whereas the US has opposed any implementation of the quota system.
In my thesis, I attempt to analyze the different approaches followed by both the countries especially in the context of political participation and higher education. I decided to focus on these two areas, as in my opinion access to government and the decision making process and access to education are the two primary means for the upliftment of the ‘depressed or discriminated’ section of society. The thesis canvasses and analyses the process and means adopted by the governments of both the countries, the role of the judiciary; and the future of AA programs in both countries in light of the increasing backlash against such programs. It also examines if there are any lessons that either country can learn from the other’s experience or whether in light of the significant differences between India and the US- economic, societal (the caste system is far more entrenched than race discrimination and is still far more prevalent in the country), the difference in the extent of discrimination and stigmatization and the magnitude of the problem (the population of Dalits is more than the entire population of US), it is fair to compare the two programs?
Pallavi Bedi received her Bachelor of Law from the National Law Institute University, Bhopal in 2007. She is also a member of the Bar Council of Delhi. She has worked in a corporate law firm in the field of securities law for two and half years. Subsequently she practiced in the Supreme Court of India under the guidance of a Senior Advocate. She has also been associated with Gene Campaign, an NGO working in the field of traditional knowledge and farmer’s rights especially in the context of intellectual property rights.
War Crimes Prosecution in Post-War Sri Lanka: Obstacles
and Lessons Learned to International (Human Rights) Advocacy
Languages spoken: English, Mandarin, Cantonese,
Thesis Advisor: Professor Antonia Chayes
The decades-long civil war that was waged between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) – and which claimed an estimated 70,000 to 100,000 lives – ended in May 2009. The most brutal stage of the armed conflict took place in the Northeast between January and May 2009, during which the Tamil civilian population was trapped between the LTTE who did not allow escape from the conflict area, and state security forces who are alleged to have fired repeatedly into shrinking No Fire Zones designated by the government.
This paper looks at the intersection between international law and politics, particularly with respect to violations of fundamental humanitarian and human rights norms in a civil war involving an internationally proscribed terrorist group, and the politics of securing accountability. Developments both within and outside Sri Lanka during the last stages of the fighting and in the aftermath are located within a “transnational legal process” framework in which the Sri Lankan government, the United Nations and its organs, as well as other transnational actors including media groups and non-governmental organisations engaged, and continue to engage, in a complex debate relating essentially to adherence of international humanitarian and human rights law by a government in its domestic war on terror.
Part I of the paper outlines the theory of transnational legal process, which serves as both a descriptive and strategic framework for the remainder of the discussion. The Sri Lankan civil war and its background, as well as the international legal framework, are sketched out in Part II. Parts III and IV map the various legal and political challenges – at both the international and domestic levels – to attaining accountability for potential crimes committed. Part V concludes by utilising transnational legal process as a plan of action, tentatively suggesting strategies to nudge the Sri Lankan government towards compliance with its international obligations, and argues for continued international (human rights) advocacy calling for accountability for violations of international humanitarian and human rights law.
Elaine Chan holds a Bachelor of Laws and a Bachelor of Economics from the University of New South Wales. Whilst in Australia, she worked with various national (Social Justice Project, Anti-Poverty Week) and regional (Diplomacy Training Program) non-governmental organizations active in the field of socio-economic rights and international human rights advocacy. More recently, she was Programme Officer, and then Associate Legal Officer, at the International Commission of Jurists’ (ICJ) Asia-Pacific regional office in Bangkok. Before joining the Bangkok office, she also spent six months at the ICJ’s international secretariat in Geneva, where she engaged with the procedures of the UN Human Rights Council. Ms. Chan is interested in issues related to the rule of law and the domestication of international law.
The Balance Of Rights: Judicial Decision Making In
Languages spoken: English, Hindi, Swahili, Kutchi
Thesis Advisor: Professor Louis M. Aucoin
“We should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights. On the contrary, I believe that in the long term we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism.” UN Secretary General Kofi Anan
Too much horror the days after the attack of 9/11 resulted in widespread changes in law that led to a destruction of the international human rights framework that many had fought to build. Violations that countries took part in post 9/11 included individuals being abducted and held in secret prisons where they were tortured and ill treated, suspects held for extended periods of time without being charged; no access to lawyers, courts, and the outside world; broad legislation encroaching on individuals fundamental freedoms of speech, opinion and assembly; and counter terrorist measures that lacked basic safeguards such as due process and adequate oversight mechanisms. The response was shocking yet, as more and more of the above violations came to light, there was a call to balance states counterterrorism measures with human rights. As the ten-year anniversary of the tragic events of 9/11 come upon us it is necessary to reflect on the tragedy and our responses to the event. This paper will examine the role of the judiciary as a catalyst in assisting with the shift back towards a human rights framework. How far we have improved in balancing counterterrorism and human rights is uncertain yet it is clear that the role of the judiciary has been of great assistance as they have strived to keep their governments in check through reviews of counterterrorism measures. Through an examination of India and United States this paper finds that the courts facilitated a shift back to an HR framework because of their unwillingness to allow certain violations of human rights principles. By examining case law in each country it is clear that the judiciary plays a significant role in maintaining the balance between human rights and counter terrorism.
Fatema Dada received an honors BA in political science with a legal studies option at the University of Waterloo and then obtained her LLB at the University of Windsor. While completing her LLB she had the opportunity to work for a legal NGO in Mumbai, India and upon graduation was awarded the J.W Whiteside award and Student Law Society award for outstanding services at the university and in the community. She then worked as legal counsel with the Ministry of the Attorney General, Ontario in their civil litigation department. While there she had the opportunity to work with leading practitioners on complex high profile litigation ranging from injunction proceedings and judicial reviews to malicious prosecutions and personal injury law. Alongside her legal practice Fatema was an active member of the South Asian Bar Association and acted as Pro Bono Counsel for SMILE - an organization dedicated to supporting children with disabilities. Currently Fatema is attending Fletcher to pursue her interests in international law and human rights.
John St. Claret Ezeani
On the Doctrine of Sovereign Equality of States and the Fallacy
of Equality of Sovereign States: A Prescription For Ending the
Paralysis in Global Governance
Languages spoken: English, Igbo
Thesis Advisor: Professor Antonia Chayes
We live in a world where, in the words of Fred Kaplan, Schwartz Senior Fellow at the New America Foundation, ‘power has dispersed and fractured’. Institutions of global governance are beset daily by a paralysis that stems directly from a diffusion of the power structure in the multilateral global governance process. The diffusion manifests in the increasing tendency of States to place an ever higher premium on their national interest, real or imagined, to the detriment of the global good. This tendency is fortified by certain fundamental principles of international law which States seem determined to deploy as weapons of confrontation instead of tools for the construction of a functional global system. The doctrine of Sovereign Equality of States is a well-intentioned norm of international law, designed to place on an equal footing all States that attain the prescribed attributes of Statehood. But the principle has become distorted and taken to extremes that its originators clearly never contemplated. The doctrine now threatens to be a stumbling block on the path of international law as States seek to seize every opportunity to aggressively canvass the notion of absolute equality of all states beyond the mere doctrinal equality of the sovereign status of States.
This paper asserts categorically that Sovereign Equality of States is not synonymous or coterminous with Equality of Sovereign States, and further canvasses the viewpoint that one sure path towards the restoration of functionality in global governance is the jettisoning of the false notion of [absolute] equality of States, a fictional construct that has no basis in fact, and the conscious embrace of the obvious reality that all states are not created equal. The Paper concludes that all states both large and small stand to benefit if the rules of the international system are formally reconstructed to enable large states enjoy the privileges but also carry the burden that their heft demand.
John St. Claret Ezeani holds a Bachelor of laws Degree from the University of Benin, Nigeria. He subsequently attended the Nigerian Law School and was admitted to the Nigerian Bar as a Solicitor and Advocate of the Supreme Court of Nigeria. He also holds a Master of Laws Degree (LLM) and a Master of International Law and Diplomacy Degree (MILD) both from the University of Lagos, Nigeria. Mr. Ezeani received a Certificate from Harvard University’s John F. Kennedy School of Government on ‘Infrastructure in a Market Economy’ and another Certificate from the Institute of Public Private Partnerships (IP3), Arlington, Virginia on ‘Legislative, Institutional and Regulatory Frameworks for Successful Public-Private Partnerships’. Mr. Ezeani is a partner in the law firm of Marshall and Stevens in Nigeria where his core competencies are in International Law and Diplomacy, Infrastructure Law and Policy, Telecommunications Law and Intellectual Property Law. As Legal Consultant to the United States Agency for International Development (USAID), Mr. Ezeani designed the structure and drafted the Charter of the West African Telecommunications Regulators’ Assembly (WATRA). A practicing Arbitrator, Mr. Ezeani is a member of the Chartered Institute of Arbitrators of the United Kingdom. After Fletcher, Mr. Ezeani intends to focus on International Arbitration, Negotiation and Mediation, on Law and Development and on issues of Global Governance. A Doctorate Degree program is not unlikely.
Cooperation on Global Mergers: The Daimler-Chrysler Case
Languages spoken: English, Spanish, French, German, Italian
Thesis Advisor: Professor Joel P. Trachtman
Globalization is a very interesting phenomenon that reduces the barriers to economic, political and cultural exchange. There are numerous issues of regulatory competition surrounding cross-border mergers and acquisitions that may lead to harmonization of norms. In the first part, attention is focused on different cooperation theories that influence cross-border mergers and acquisitions. Moreover, it provides some examples of harmonization of legislations from different jurisdictions caused by cross-border mergers and globalization. It is also discussed how M&A causes globalization and regulatory change, and how globalization affects M&A law in particular countries. The second part examines the merger agreement of Daimler Benz and Chrysler and the differences in corporate governance structures in Germany and the United States. It also provides an explanation on how companies are benefited from having better accounting standards and corporate governance structures from their host country, and how these benefits are portable to the country where they invest. This paper describes the reasons of the failure of the Daimler-Chrysler merger agreement and it analyzes the disadvantages that cross-border merger agreements encounter when the legislations from their respective countries have substantial differences in their corporate governance structures.
Gerardo Farah received his Bachelor of Laws in Mexico from Universidad Panamericana on 2003, and a Masters degree in Taxation on 2010. He received one of the highest grades of the generation and recognition of the dissertation’s jury for his thesis on the constitutionality of the corporate tax law in Mexico. He is currently a Master of International Law candidate at the Fletcher School of Law and Diplomacy, where he has deepened his knowledge on International Corporate, Financial and Tax Law.
Gerardo is certified by the Ministry of Public Education to practice law in Mexico and his career has been shaped by nine years of experience as a corporate and tax attorney in prestigious international firms such as Ernst & Young, Deloitte, and Chevez, Ruiz, Zamarripa y CIA. In 2006, Gerardo co-founded the Firm, Hermosillo, Farah y CIA, with three retired partners from Ernst & Young, Deloitte and
PricewaterhouseCoopers. Among the Firm’s achievements is being one of the few recipients of favorable sentences against the Corporate Tax Law in Mexico. Gerardo planned and implemented the Firm’s growth strategy until his departure in 2010. He is a member of the American Bar Association and the Boston Bar Association since 2011, and he is in the process of receiving his certification as a foreign legal consultant in Boston.
Regime Changer?: Sovereign Wealth Funds and the
International Investment Framework
Languages spoken: English, French
Thesis Advisor: Professor Jeswald W. Salacuse
Over the past decade, the number of bilateral investment treaties regulating foreign direct investment in the global system has skyrocketed. With the increase, new challenges have confronted the system as standards have evolved, terms have been refined and actors have pressed claims. A recent challenge, however -- that of the growing prevalence of sovereign wealth funds engaging in foreign direct investment -- presents the system with fundamental questions of legitimacy and purpose. On the one hand, these sovereign wealth funds may fit within the generally accepted jurisdictional criteria for entry into the international investment regime, thus allowing them to take advantage of favorable terms negotiated by capital-exporting countries over fifty years. On the other hand, sovereign wealth funds represent a difference not of degree, but of kind, from traditional foreign direct investors. This paper argues that, as a result, sovereign wealth funds are problematic additions to the international investment regime and represent a challenge for which, due to its own myopia and post-colonial hubris, the international investment regime has no good answer.
David Fromm received his law degree from the Georgetown University Law Center and his master's degree in international relations from the Central European University in Prague, C.R. He has worked for law firms in Massachusetts and California, focusing on complex civil litigation and alternative dispute resolution. He served for several years on the executive committee of the Los Angeles County Bar Association's International Law Section and, in that capacity, participated in the ILS's first-ever bar development delegation to Asia in 2007. In addition to his degree programs, Mr. Fromm has completed coursework in international ADR and negotiation at the Straus Institute at Pepperdine University. Expatriate Games, an account of his brief basketball career in Prague, was published by Skyhorse Publishing in October 2008. He hopes to focus his studies at Fletcher on private international dispute resolution and international joint venturing.
Guillermo J. Garcia
The International Criminal Court and the War Against
Drugs in Mexico
Languages spoken: English, Spanish, French, German
Thesis Advisor: Professor Michael J. Glennon
Drug cartels in Mexico are no longer acting as classic organized crime. They are using techniques and strategies more related to an insurgency. Some cartels show signs of targeting not only law enforcement officers, but also civilians and unrelated “combatants” for the purpose of eliminating the rule of law in certain regions, applying social pressure upon the government, and diminishing the social support for competing cartels. This new strategy comes from the rise of cartel leaders who are former police and military officers with high-level guerilla training. The Mexican State has been forced to react in a more aggressive manner. The federal forces have seized the streets of certain regions and in that process they have been violating basic human rights. They have initiated targeting killings against key drug lords, and they have placed pressure upon civilian populations without considering its impact on human rights. The International Criminal Court (ICC) might have a role to play in this situation. Even though the ICC was not created to prosecute drug related crimes because the drafters thought that it would overwhelm the workflow of the Court, the Mexican situation is more closely related to an internal war, focalized in certain regions, where civilians have become targets. Particularly there are elements to believe that the situation in Mexico can be considered as one of an internal armed conflict, with cartels organized and structured in a very sophisticated way, with military training and hierarchical structures with the capabilities to initiate widespread or systematic attacks. This new modus operandi from the cartels shows signs of having escalated their actions to crimes against humanity or war crimes in certain regions. In addition, there are reasons to believe that the Mexican judiciary is not up to the task in processing these types of crimes. If the ICC does decide to initiate preliminary examinations in Mexico, it would generate a “shadow” upon the Mexican government: an effect that could force it to initiate appropriate proceedings and reevaluate its strategy in order to avoid the OTP’s request for a second stage of investigation.
Guillermo received two degrees with honours from Instituto Tecnologico Autonomo de Mexico (ITAM), international relations and law, and attended the International Private and Public Law Sessions of The Hague Academy (2008). For his law thesis on the negotiation of transboundary resources in the Gulf of Mexico he received the Academic Excellency Award for the best law thesis of 2009. During his studies he was the Secretary General of ITAM’s Model of United Nations; and in 2009 he filed an amicus curiae before the Inter-American Court of Human Rights regarding the Judge ad hoc institution in the Inter-American Human Rights system. Since 2009 he has been a member of the Mexican Council of Foreign Affairs.
In his professional experience he was a Legal Advisor of the Ministry of Foreign Affairs and he is a former associate of the international investment arbitration team of Curtis, Mallet-Prevost, Colt & Mosle LLP. In 2006 he worked at ITAM’s pro bono Centre for Access to Justice, and participated as an assistant professor on international relations at ITAM. He is a founding member of national civil movements that promote independent candidates to the Mexican Federal Congress and that lobby the introduction of a re-election system in Mexico (VotaIndependiente and Reeligeo Castiga).
Preventing Genocide: Obligations of the P5 under the
Languages spoken: Georgian, English, Russian
Thesis Advisor: Professor Ian Johnstone
In its judgment in the case of Bosnia and Herzegovina v. Serbia and Montenegro , the International Court of Justice ruled that under the Convention on the Prevention and Punishment of the Crime of Genocide, states have the obligation, which is not limited to their territories, to use “all means reasonably available to them” to prevent genocide. By this interpretation, it is argued, ICJ has created “a justiciable” obligation to prevent genocide and the states can be held accountable for failing to meet this obligation.
Contemporary system of international law, as shaped by the UN Charter, is based on an idea of sovereignty and non-intervention in internal matters of a state, the only exemption to the rule being, for situations not falling under self-defense, intervention authorized by the UN Security Council to address a threat to international peace and security. However, the doctrine of Responsibility to Protect (“RtoP”) developed in the past decade suggests that the notion of sovereignty as enshrined in the UN Charter has eroded over time and the scope of the exception from the rule on non-intervention has by now widened to include, inter alia, cases of intra-state genocide as warranting intervention.
Five permanent members of Security Council (the P5) are parties to the Genocide Convention. In view of the above and considering that the prohibition of genocide constitutes both a jus cogens norm and an erga omnes obligation under the international law, the thesis examines what are the obligations of the P5 under the Genocide Convention in terms of preventing intra-state genocide in another country. Also looking at possible implications of RtoP (if any) in this regard, the thesis is an attempt to see how far the legal obligations of P5 go and what constitutes the means that could be considered as reasonably available to them for preventing anticipated or ongoing genocide elsewhere.
Ms. Japaridze received her first degree in law from the Technical University of Georgia and LL.M. in Human Rights Law from the Central European University in Budapest, Hungary. She has also completed a three-month traineeship program at the European Court of Human Rights in Strasbourg, France. Ms. Japaridze has been working on the issues of displacement for the past few years. She has worked with refugees and asylum seekers, mostly from Chechnya, the Russian Federation, as well as with internally displaced persons (IDPs) from two unresolved ethnic conflicts in Georgia. Her most recent employers have been UNHCR and the Norwegian Refugee Council. Ms. Japaridze's main area of interest for studies at Fletcher is the right to self-determination in the context of ethnic conflicts and secession.
María José Ocampo
A Comparative Study of the Police Forces in Colombia and
Mexico. Security and Democracy Matters:
The Police Reform in Mexico
Languages spoken: English, French, Spanish
Thesis Advisor: Professor Louis M. Aucoin
Not so long ago, the concept of security was only related to national security issues. Security was understood as a concept that concentrated only in defending any State against any internal or external threat. Under the doctrine of national security, the main objective was to protect the State instead of protecting its citizens. The citizens were seen as part of the background in any situation without taking into account their right to lead their lives without threat to them or their goods.
Most of the countries in Latin America have a state organization that responds more to national security issues than to public safety matters.
The actions and result of any police corporation is linked to any current democracy. The police deal with the safety of the population and maintenance of public order. The police in Latin America have faced multiple problems such as the lack of effectiveness, efficiency, legality, legitimacy and transparency. This situation has brought multiple problems in Latin America not only for the governments but also for the society.
This thesis studies, analyzes and compares the case of Colombia with the case of Mexico, for several reasons: these countries share similar historical and political backgrounds; with similar people, traditions and culture. Importantly Colombia has been facing for the last twenty years a constant struggle and fight against drug cartels and organized crime, and this situation has been taking place in Mexico for the last 10 years. Because of this situation, there can be a comparative study in which the countries share characteristics and most importantly: the recommendations can be applied.
In the specific case of Colombia, the reform process started in 1993 and many changes have been made since the Government of Colombia applied these reforms. Many of these changes and particular characteristics can be and should be applied in the case of Mexico to fight drug cartels, organized crime, and most importantly to decrease the level of violence that the population has been experiencing and that has brought a high discontent within society. It is the obligation of the government to make their citizens feel safe in their country and to change and create a new police force that can approach and properly fight crime and violence.
María José Ocampo received her law degree from the Universidad Iberoamericana. During her studies she worked at various law firms; and has been actively involved in numerous political activities in Mexico. Her most recent employment was in the Mexican Congress where she worked in the Tax Commission Office. Ms. Ocampo is interested in international law and hopes to return to her country in order to work for the government after her graduation.
Ali A. Palh
Comparative Analysis of Two Institutions of Justice in
Post-Conflict Societies: The International Criminal Court
and Truth Commissions
Language spoken: English, Hindi, Urdu, Sinhala
Thesis Advisor: Professor Louis M. Aucoin
This thesis makes a comparative analysis of retributive and restorative approaches to justice in post conflict societies, analyzing the relationship of the International Criminal Court as the classical example of the retributive approach with truth commissions as a standard mechanism of restorative approach in selected situations, including the presentation of findings and recommendations, with a focus and area of interest in International Criminal Justice. The author uses documentary methods in his research and concludes that neither the Court nor truth commissions alone can grapple with and heal a society post-conflict. Rather, both institutions and approaches can work in a complementary, mutually supportive and balanced relationship that allows them share their resources, expertise, and advantages.
The author makes recommendations that, unlike a ‘one size fits all approach,’ one institution cannot be a principal and effective response to all situations. Both primary and secondary audiences’ needs and perspectives should be accommodated while dealing with the post-conflict situation. The final outcome of the partnership between the Court and truth commissions should help societies in a post conflict stage find the answers to the questions of what happened during the conflict, how the acts occurred, and strives to seek the necessary reform to prevent a recurrence of atrocity.
Ali Palh is a lawyer, peacekeeper and human rights activist. He has done his Bachelor degree in Law from Law College Hyderabad, Pakistan and is member of District Bar Association Mirpurkhas, Sindh, Pakistan. Later, Mr. Palh completed his Masters in International Human Rights Law from the Office of Human Rights and Social Development (OHRSD), Faculty of Graduate Studies Mahidol University, Thailand. Prior to it, he was working in Pakistan on human rights, peace and development where his main focus was on women rights and protection of religious minorities. Before joining Fletcher school, Mr. Palh was working with Nonviolent Peace Force, Sri Lanka as Coordinator for Human Rights Defender’s Protection Project. Ali Palh joined Nonviolent Peace Force Sri Lanka in June 2007 and worked there as peacekeeper and Head of Field Office Trincomalee, Eastern province until March 2009. After graduation from Fletcher School, Ali plans to return back to Pakistan and work on protection of human rights defenders and minorities, and ratification of the International Criminal Court.
Legal impediments for large-scale foreign-invested
infrastructure projects in Vietnam
Languages spoken: English, Vietnamese
Thesis Advisor: Professor Jeswald W. Salacuse
Although infrastructure is considered as the bottleneck points for the growth of Vietnamese economy, only 18 public private partnership projects have been implemented in the country with foreign partners during the last 12 years, representing about 15% of the total capital invested in infrastructure. This situation is explained by the government’s inconsistent attitude toward private sector participation in infrastructure, particularly the provision of a legal framework that specifies the “rule of the game” for the private sector.
The thesis aims to analyze major legal impediments for foreign investors to develop large-scale infrastructure projects in Vietnam, with focus on Build – Operate – Transfer projects in energy, transportation and water and sewerage. The major legal impediments are (i) the lack of an efficient domestic legal framework and enforcement mechanism to protect the rights of foreign investors in large-scale financing project; (ii) the uncertainties in investors’ contractual rights to make the projects feasible and (iii) the absence of an effective dispute settlement mechanism between the Vietnamese government and foreign investors. The thesis will also analyze investment-related treaties signed and to be signed between Vietnam and the United States as well as Vietnam’s WTO commitments to give recommendations to both government of Vietnam in legal reforms to attract more private participation in these projects and American investors in using international treaties to protect their rights.
Mai Phan graduated from the Faculty of International Law of Diplomatic Academy of Vietnam as student with the highest grade point average in 2008 and won numerous student awards. She was the head of Vietnam’s team participating in the Philip C. Jessup International Law Competition in 2008. After graduation, Mai joined the VILAF law firm, one of the leading local commercial law firms of Vietnam.
Security Exceptions In The General Agreement of
Tariffs And Trade
Languages spoken: English, Russian, Lithuanian
Thesis Advisor: Professor Joel P. Trachtman
In light of recent and prospective economic, political and technological developments there is a need to clarify the scope of states’ rights under the security exception clause of XXI(b) of GATT. Given controversial and unsettled practice, as well as differing opinions of trade law experts, the correct approach is to analyze states’ rights under Article XXI(b) from the perspective of the WTO dispute settlement system. This implies reliance on customary rules of interpretation of public international law and deference to the WTO dispute settlement reports and decisions.
The author agues, that states’ rights to security exceptions under GATT of 1994 are very limited. Contrary to the dominating allegations, Article XXI(b) does not give to an invoking state a right to be herself a judge, and the security exceptions are entirely subject to the objective review by WTO panels and the Appellate Body. Four recent empirical cases that concern or could hypothetically involve trade restrictive measures under Article XXI(b) are used to illustrate the analysis: India’s ban of the telecommunication equipment and Blackberry phones, China’s restriction on rare earth mineral exports and hypothetical state’s measures taken to address Stuxnet type virus threats.
Arguments that advocate self-judging nature of Article XXI(b) (Red-Light Approach) and arguments that support objective interpretation of Article XXI(b) (Green-Light Approach) are examined and synthesized to provide a new approach to interpretation of Article XXI(b). In assessing Article XXI(b) measures, WTO panels and the Appellate Body should apply a two tier test: first, to assess whether requirements laid down in Article XXI(b) subparagraphs (i-iii) for a security exception measure are met; in affirmative case, further consider whether the measure complies with the chapeau of Article XXI(b).
Author argues that while objective judicial review of security action’s “necessity” may be limited, WTO panels and the Appellate body could assess, whether protected security interests are essential. Most importantly, essential security interests are strictly limited to the corners of subparagraphs (i-iii). Based on the analysis, author concludes that Article XXI(b) envisages only a narrow scope of essential security interests and available measures. None of the security exception actions invoked unilaterally in four empirical cases are justified under Article XXI(b).
Rytis Valunas received a law bachelor degree and a law master degree in 2007 and 2009, Mykolas Romeris University, Lithuania, respectively. He also studied at Lunds University, Sweden (2006) and Ghent University, Belgium (2008). In 2007 Rytis started working in a law firm specializing in litigation and was admitted to the Bar in 2010. During his studies he successfully participated in a number of international law moot courts (Jean Pictet, Philip C. Jessup, World Trade Organization) and received numerous student awards and scholarships. In 2009 he was invited to deliver lectures on international public law and trade law at Mykolas Romeris University. In addition, since 2009 Rytis also served as a legal adviser to one of the Lithuanian MPs. Interested in international trade and energy issues, he expects to enrich his expertise at Fletcher and considers diplomatic career after graduation.
Raise your hands, all in favour- Shareholder Activism –
An analysis on their role in the United States and in India
Languages spoken: Malayalam, English, Hindi
Thesis Advisor: Professor Joel P. Trachtman
Working Title- In the light of evolving corporate governance norms, this thesis aims to have a relook at the role of the shareholder within the company and the larger role they play vis-à-vis other stakeholders. A relook is taken at the role of the activist shareholder. The concerns of this particular subset have always constantly been changing- It may be internal concerns- such as questions on executive compensation or it may be concerns that affect the greater common good- environmental pollution for instance. The different kinds of shareholders, specifically the role of larger shareholders such as hedge funds and mutual funds and the manner in which they choose to air their concerns or if they do, is touched upon. The thesis begins with a discussion and review of the theories on the role of the shareholder and proceeds to evaluate how these theories have evolved and stand today. The paper then proceeds to lay down the laws/regulations in the US, specifically Delaware corporate law and federal law and how shareholders use their statutory rights in the context of corporate social responsibility initiatives. The manner in which the US courts view these shareholder initiatives are also highlighted upon. The situation in India is also analysed along with reasons on the lack of strong shareholder initiative as is seen in the US and how courts in India view the role of the shareholder- whether seen as owing a duty only in respect of the profit maximization objective or whether if they are expected to keep larger concerns in mind and if so to what extent. The underlying objectives behind the laws in US and India are analysed.
The paper also seeks to question whether in the context of the recent economic financial crisis; shareholder initiatives in respect of companies which were overleveraging themselves or were engaging in speculative financial transactions may have been successful in preventing them from imploding.
The paper seeks to conclude with a framework on how shareholder initiatives may be strengthened and how especially in the context of India the statutory laws be used in that regard.
Vidya Venugopal received her degree in law from the National University of Advanced Legal Studies, India in 2007. She was an editor of the maiden law journal of the University and an active mooter, representing the University at several prestigious moot competitions including Jessup and Stetson. After completion of her degree she worked as an in-house legal counsel at ICICI Bank, the largest private sector bank in India, for three years. She specialised in the areas of derivatives, resource raising and securitisation at ICICI Bank before deciding to pursue higher studies at Fletcher. She is interested in working in the areas relating to international business/economic law and policy and hopes to work for international organizations upon graduation.
Turkey’s Deadlock: Right to Freedom of Expression v. An Ever Rising Suppression
Languages spoken: English, Turkish
Thesis Advisor: Professor Daniel Kanstroom
Turkey’s accession to European Union has been a problematic issue for many years. After the approval of its official candidacy, Turkey promised to undertake several legal reforms under the title of “judiciary and fundamental rights”, one of the 35 chapters of acquis communautaire. Freedom of expression is one of the most important subtitles of the judiciary and fundamental rights chapter; however, Turkey has constantly failed to provide this vital freedom. Turkish legal system still does not offer a strong protection for those who want to make their voice heard. My study sheds light on Turkish perception of freedom of expression and aims to point out the flaws in Turkey’s legal system about this issue.
Damla Yildirim received her Bachelor of Laws from Ankara University Faculty of Law. During her studies, she worked as a trainee at Radio and Television Supreme Court of Turkey and Dogus Media Group and was a member of European Law Students’ Association (ELSA). After her graduation she worked as an intern lawyer for a law firm, which specializes in Media Law. Damla also was a volunteer legal advisor for Ankara Bar Association Women’s Shelter. Her passion about international law has started during college years; in fact she published an article in a refereed journal about international law. After the Turkish Government awarded her with a scholarship, she decided to study at Fletcher School. Her aim is to study conflict resolution and human rights, and pursue a PhD degree after her graduation.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. V, Serb. & Mont.), 2007 ICJ 91 (Feb. 26).