Law Commons^™

Indigenous Peoples, Intangible Cultural Heritage And Participation In The United Nations, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter concentrates on the participation of indigenous peoples in multilateral initiatives to protect cultural heritage, with specific reference to intangible heritage. While an international instrument for the protection of intangible heritage was adopted over a decade ago, the importance of intangible heritage for indigenous peoples is evident in their work in various UN fora. I examine indigenous peoples’ interventions before UNESCO and bodies established to implement the Convention on the Safeguarding of Intangible Cultural Heritage; within WIPO in respect of ongoing moves to adopt specialist instruments on traditional knowledge and cultural expressions; and finally, within UNEP and the implementation …

Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna E. Gismondi

Giovanna E. Gismondi

In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. I argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their economic …

Democracy And Torture, Patrick A. Maurer

Patrick A Maurer

September 11th spawned an era of political changes to fundamental rights. The focus of this discussion is to highlight Guantanamo Bay torture incidents. This analysis will explore the usages of torture from a legal standpoint in the United States.

The Isis Crisis And The Development Of International Humanitarian Law, Johan D. Van Der Vyver

Johan D van der Vyver

ABOUT THE ARTICLE This article identifies the rules of international humanitarian law that have a bearing on the Israeli offensive in Gaza. It first of all attempts to establish whether or not Israel remained an Occupying Power after its disengagement from the Gaza Strip in 2005. If due to the control Israel continued to exercise over border crossings, electricity and water supplies and the like, Israel is found to be de facto in occupation of Gaza, the Hamas responses would qualify as a war of liberation, which in terms of Protocol I to the Geneva Conventions of 12 August 1949 …

Designing Emotional And Psychological Support Into Truth And Reconciliation Commissions, Verlyn F. Francis Ms.

Verlyn F. Francis Ms.

Truth and Reconciliation Commissions are a dispute resolution mechanism used to attempt to reunite countries and states after internal conflicts and civil wars. A large component of this transitional justice process involves truth-telling by perpetrators and victims. The ultimate goal is reconciliation of the parties within the unified state.

Using the example of the South African Truth and Reconciliation Commission, this paper argues that successful reconciliation depends on the design of the process. It is important for the designer to balance individual and institutional interests and to ensure that all stakeholders are at the design table. Since the truth-telling in …

A Child’S Right To A Family Versus A State’S Discretion To Institutionalize The Child, Richard R. Carlson

Richard R Carlson

International law, represented particularly by the U.N. Convention of the Rights of the Child (CRC), declares that a child has the right to be raised in a "family environment." Nevertheless, the CRC grants states the discretion to institutionalize children who are without functioning families. States have this discretion because the CRC does not require states to arrange, facilitate, or even allow for child placement in a permanent, substitute family. In this article, I describe this contradiction in international law--a child's right a family environment versus the state's discretion to institutionalize the child--and I explore the possible reasons for the contradiction. …

Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma E. Marouf

Fatma E Marouf

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet the Board of Immigration Appeals (BIA) has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examining of the elements of the crime with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offense are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious …

The Impact Of Interior Immigration Enforcement On Mixed-Citizenship Families, Michael J. Sullivan, Roger Enriquez Sr.

Roger Enriquez Sr.

In this article, we trace the expansion of interior immigration enforcement measures since the 1990s, focusing on the period after the creation of the U.S. Department of Homeland Security (DHS) in 2003. We consider the rationale for escalation of enforcement and its expansion to include local and state law enforcement agencies during this period. We will examine who benefits economically and politically, detailing the role of local jails, private corrections corporations, and the communities that are financially dependent on the prisons industry. Throughout, we consider how the expansion of immigration enforcement has affected U.S. citizen children and spouses of unauthorized …

Secession: The Contradicting Provisions Of The United Nations Charter – A Direct Threat To The Current World Order, N. Micheli Quadros

N. Micheli Quadros

The preamble of the United Nations' Charter (hereinafter UN Charter) presents its members declaration under which justice and respect for international law and the international community is supposed to be maintained. To date, the United Nations (UN) has failed to ensure international peace by allowing powerful states to infringe upon other nations’ territorial integrity and manipulate individuals to exercise their right of self-determination.

Outdated, redundant and vague provisions that proved their inefficiency have plagued the UN Charter. Chapter I, Art 1 § 2 of the UN Charter, states that one of the main purpose of the UN is “to develop …

Shared Responsibility Regulation Model For Cross-Border Reproductive Transactions, Sharon Bassan

Sharon Bassan

The term “cross-border reproductive transactions” refers to the phenomenon of tens of thousands of people who travel from one country to another to purchase reproductive services, in order to have a child. The foci of this paper are the lion share of cross-border reproductive transactions, specifically between consumers, i.e., intended parents from affluent countries, and suppliers of reproductive services, egg sellers and surrogate mothers, the majority of whom are from lower middle-income countries. Strong concerns regarding the morality of consumers’ states’ policy arise when a country nationally restricts or bans commercial surrogacy, while accepting the results of cross-border reproductive transactions …

Duty To Revolt, Katherine Crabtree

Katherine Crabtree

The Universal Declaration of Human Rights not only prescribes universal rights but also individual duties, stating “everyone has duties to the community in which alone the free and full development of his personality is possible.” This paper examines the nature of the right to revolution and considers whether an individual’s duty to uphold human rights includes a moral duty to revolt when the current social structure permits or requires intolerable systematic human rights violations. Four subsections discuss (1) the development and nature of disciplinary power that a government imposes on citizens in order to force conformity to the laws, (2) …

The Principles Of International Law: Interpretivism And Its Judicial Consequences, Gianluigi Palombella

Gianluigi Palombella

Principles are part of international law as much as of other legal orders. Nonetheless, beyond principles referred to the functioning of IL, or the sector related discipline in discrete fields, those fundamental principles identifying the raison d’etre, purpose and value of the legal international order, as a whole, remain much disputed, to say the least. In addressing such a problem, one that deeply affects interpretation and legal adjudication, this article acknowledges the limits and weakness of legal positivism in making sense of the inter- and supra-national legal order(s). It appraises also the novel from the late Ronald Dworkin, concerning …

The Inter-American Court On Human Rights’ Judgment In Artavia Murillo V. Costa Rica And Its Implications For The Creation Of Abortion Rights In The Inter-American System Of Human Rights, Ligia M. De Jesus

Ligia M. De Jesus

In Artavia, the Inter-American Court on Human Rights addressed the meaning of article 4(1) the American Convention on Human Rights, which recognizes a person’s right to life beginning at conception. The court handed a restrictive interpretation of this provision, holding that, before implantation, the human embryo is not a person entitled to human rights protection under the American Convention, while redefining the term “conception” as implantation, not fertilization. The court also redefined article 4(1)’s terms “in general, from the moment of conception” to mean that only gradual or incremental protection should be given to prenatal life, depending on the unborn …

Redefining Terrorism: The Danger Of Misunderstanding The Modern World's Gravest Threat, Jennifer Breedon

Jennifer Breedon

No abstract provided.

Can The Center Hold? The Vulnerabilities Of The Official Legal Regimen For Intercountry Adoption, David M. Smolin

David M. Smolin

Amidst controversy, a legal regimen for intercountry adoption (ICA) has been developed over the past twenty-five years. The primary constituent parts are the 1989 UN-based Convention on the Rights of the Child (“CRC”) and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). Since the creation of those conventions, international and national legal efforts have focused on delineation and implementation of a set of standards based on their principles in the attempt to create a stable and reliable intercountry adoption system. This project of the creation of a stable and reliable intercountry …

Refugee Law In Context: Natural Law, Legal Positivism And The Convention, Isaac Kfir

Isaac Kfir

The contemporary international refugee system was product of a desire to provide protection and assistance to those who have a well-founded fear of persecution, a somewhat sophistic term in the twenty-first century, which may explain why the system has become cumbersome, incoherent and divisive. One explanation for the tension within the refugee regime is that states—mainly western states—seek to reduce refugee applications while adhering and upholding their international obligations. Another explanation is that it is tensions between two legal traditions—natural law and legal positivism—that are shape the international refugee law that have led to the crisis, preventing a clear legal …

Archaeological Sites And Mangrove Forest: A Legal Overview Of The Ecologically Critical Areas In The Bangladesh Context, Arpeeta Shams Mizan

Arpeeta Shams Mizan

Ecologically critical area as a concept is practised globally to preserve the natural biodiversity of environmentally endangered areas. These areas also fall under the criteria of natural and cultural heritage. Since the Stockholm Declaration, leading international legal instruments have reiterated their sanctity in consonance with the principles of Intergenerational equity and also of human rights. The environmental law in Bangladesh has incorporated these principles by making provisions for Ecologically Critical Areas (ECAs) in the Bangladesh Environment Conservation Act 1995 (as amended in 2010) and the Environment Conservation Rules 1997. Bangladesh is a signatory to the World Heritage Convention, the principal …

Incorporating The Third Party Beneficiary Principle In Natural Resource Contracts, James T. Gathii

James Thuo Gathii

Third world citizens—parties who often have the most to lose in natural resource contracts between their governments and foreign investors—often have no voice in negotiations of the contracts and consequently have no remedy under contract law when harms occur or when the contracts are not properly enforced. The privity doctrine, which permits contract suits only by parties to the contract, bars these citizens from suing because they were not in privity with any of the contracting parties, despite that these contracts are generally made for the benefit of these citizens. However, some countries have adopted—and this Essay argues other countries …

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

Labor Rights And Free Trade; Social Development Parallel To Economic Development, Hassan Razavi

Hassan Razavi

The trade-based distributional policies have reinforced the issue of social standards in societies and the encroachment of free trade on other international standards particularly the labor standards has linked this matter with the issue of comparative advantage, thus opening the door for claims which are not made in good faith. This research studies the linkage of free trade and social standards under the WTO umbrella and based on justice theories, develop a framework in which the claims for both the protection of human rights and economic growth could be met by developing the idea of parallelism within the current regime …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

Artavia Murillo V. Costa Rica: The Inter-American Court On Human Rights’ Promotion Of Non-Existent Human Rights Obligations To Authorize Artificial Reproductive Technologies, Ligia M. De Jesus

Ligia M. De Jesus

In Artavia Murillo v. Costa Rica, the Inter-American Court on Human Rights examined the question of whether Costa Rica may, under the American Convention on Human Rights, protect human embryos from destruction by banning in vitro fertilization (IVF) in its jurisdiction. The case provoked the Inter-American Court of Human Rights' first debate on the existence of international human rights obligations to authorize and fund artificial reproductive technologies as well as its first interpretation on the right to life from conception, established in Article 4(1) of the American Convention. In the judgment, issued over one year ago, the Inter-American court held …

A Pro-Choice Reading Of A Pro-Life Treaty: The Inter-American Court On Human Rights’ Distorted Interpretation Of The American Convention On Human Rights In Artavia V. Costa Rica, Ligia M. De Jesus

Ligia M. De Jesus

In Artavia, the Inter-American Court on Human Rights’ first decision on embryonic life and artificial procreation, where the Court held that – at least before implantation – the human embryo is not a person entitled to human rights protection under the American Convention, while defining the term “conception” to occur at implantation, not at fertilization. The Court also read Article 4(1)’s phrase “in general, from the moment of conception” to mean that only gradual or incremental protection should be given to prenatal life, depending on the unborn child’s physical stage of development. In addition, it held that “personal decisions” – …

Public Policy In International Investment And Trade Law: Community Expectations And Functional Decision-Making, Diane A. Desierto

Diane A Desierto

This article uses a contextual policy-oriented approach to assess how the standing debate on a State's regulatory freedom has been treated within international investment law (e.g. case-by-case interpretation of variant treaty design in each case), in contrast with how the issue of domestic regulatory autonomy in international trade law has evolved towards coordination (e.g. attempted harmonization of the same set of instruments). The article submits a different view from many primarily trade law/investment law scholars (and other systemic integrationists who idealize a seamless shift from trade law to investment law), who have postulated that this fundamental issue of State regulatory …

Enhancing Human Rights Through European Integration: How Recent Litigation Before The European Court Of Human Rights And The Court Of Justice Of The European Union Has Advanced European Aslyum Law, Clara Presler

Clara Presler

Recent case law from the two European courts charged with protecting human rights -- the European Court of Human Rights and the Court of Justice for the European Union -- reveals mutual influence that has enhanced protection of asylum seekers. The two courts’ willingness to engage in the other’s legal reasoning has resulted in rapid development in the areas of eligibility for asylum protection, detention of asylum seekers, and the Dublin II Regulation. This interplay has occurred despite the fact that the courts are not formally bound to each other, and each employs different procedures, mandates, and substantive law. In …

The Problem Of Thirst: The Right To Equality And The Unlawful Privatization Of Water, Kasari Jl Govender

Kasari JL Govender

The problem of thirst is a massive one, and a child dies every 15 seconds from disease related to lack of access to safe, clean water. Privatization is touted as the solution to water injustice, despite evidence that privatization of water services only increases water deprivation for the poorest citizens. This paper examines whether a privatized for-profit system of water access for personal use infringes the human right to water, and whether states have a legal responsibility to protect their citizens from any and all third party business interests in water. The problem of thirst is considered from the perspective …

Conflict Minerals And The Law Of Pillage, Patrick J. Keenan

Patrick J. Keenan

The illicit exploitation of natural resources—often called conflict minerals—has been associated with some of the worst violence in the past half-century, especially in the Democratic Republic of Congo. Prosecutors and scholars have struggled to develop legal tools to adequately hold accountable those who have been responsible for the exploitation of civilians and resources in conflict. The most common legal tool, the crime of pillage, has been inadequate because it has been applied only to discrete, relatively small episodes of theft. As important as it has been, the episodic theory is of limited utility when applied to what have been called …

The Rule Of Law Goes To Work: How Collective Bargaining May Promote Access To Justice In The U.S., Canada, And Around The World, Christopher David Ruiz Cameron

Christopher David Ruiz Cameron

No abstract provided.

Right To Asylum Under International Human Rights Law And Edward Snowden Case, Dr Nafees Ahmad

Dr Nafees Ahmad

No abstract provided.