Law Commons^™

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

When Does Cultural Satire Cross The Line In The Global Human Rights Regime?: The Charlie Hebdo Controversy And Its Implication For Creating A New Paradigm To Assess The Bounds Of Freedom Of Expression, Kwanghyuk Yoo

Dr. Kwanghyuk David Yoo

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.

Cultural Heritage, Human Rights And The Privatisation Of War, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter focuses on the legal issues raised by the impact of the privatisation of war on cultural rights and cultural heritage during military engagements. It is divided into four parts. First, there is an examination of the current debate amongst heritage practitioners, particularly archaeologists and anthropologists, about their professional engagement with PMSCs in recent conflicts and belligerent occupation. Second, there is an overview of existing international humanitarian law and human rights provisions covering cultural rights and cultural heritage during armed conflict and occupation. Third, the response of professional bodies and associations of heritage practitioners through their codes of ethics …

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

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 …

Framing The Responsibility To Protect Doctrine As A Means Of Legal And Moral Intervention With Universal Jurisdiction Legal Obligations Of The Responsibility To Protect Doctrine And Universal Civil Jurisdiction In The Syrian Civil War Crisis, David Satnarine

David Satnarine

No abstract provided.

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 …

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Sital Kalantry

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

Constant Development And The Right To The Right To The Environment As The Third Generation Of Human Rights, Masume Zareie

masume zareie

From among the third generation of human rights , the right of Constant development is Considered as the basis for Other Crucial rights. The rights of the environment are part of general international rights which regulate the Occasions between those obedient of international rights (governments and international organizations.)this legal order is mainly based on bilateral and multilateral treaties and judicial international Convention the right to the environment is reflective of high and basic values similar to the environment is reflective of high and basic values similar to the right to life , the right to health and life of standard …

Mindful Justice: The Search For Gandhi’S Sympathetic State After Bhopal, Nehal A. Patel

Nehal A. Patel

One of the most startling examples of unmitigated disaster occurred in Bhopal, India, in 1984, when a Union Carbide pesticide plant exploded tons of methyl isocyanate into the air, killing 3800 people overnight. 30 years later, the plant site has not been remediated, and the estimated death toll from the explosion now has reached over 20,000. Disaster victims repeatedly have sought relief directly from the government. Yet, the Indian and US governments and Union Carbide have refused to provide the necessary resources for proper remediation. In this Article, I examine the state’s response to the Bhopal disaster using the thought …

Punishment For Unjust War: First International Court Decision Awarding Damages For Aggression: Will It Be Enforced?, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

Racism, Genocide, And Mass Murder: Toward A Legal Theory About Group Deprivations, Winston P. Nagan, Vivile F. Rodin

Winston P Nagan

This Article is focused on a specific and important issue: the relationship of law to the social reality of group deprivations. From this primary issue, several important sub-issues are generated having a real and substantial impact upon the role of law in the management of group deprivations at every level of social organization (local, national, regional, and international). To focus on the social reality of group deprivations requires a critical starting point. This starting point is determining whether we are adequately describing or assaying the etiology of the human personality types and self-systems that are normally characterized by feelings, sentiments, …

Communications Theory And World Public Order: The Anthropomorphic, Jurisprudential Foundations Of International Human Rights, Winston P. Nagan, Craig Hammer

Winston P Nagan

This Article seeks to integrate different strains of knowledge and enlightenment from contradictory and often contentious jurisprudential perspectives. Our approach is to use elements of modern jurisprudence as tools and markers for a more adequate description and intellectual justification of the foundations of modern human rights law. This focus integrates existing literature that surveys law-making outside the context of the State, including the law of non-State groups, such as Jewish Law and Gypsy Law. It also examines the relevance of communications theory to law generated (in a functional sense) by individual interaction on a face-to-face basis (which Professor Harold Lasswell …

Old Poison In New Bottles: Trafficking And The Extinction Of Respect, Winston P. Nagan, Alvaro De Medeiros

Winston P Nagan

The new form of slavery comes by that relatively innocuous title, “trafficking.” Trafficking is an illustration of the dynamic character of the social and antisocial forces that conspire to undermine the idea of human dignity in the world community. The forms of crime are in fact dynamic. Frequently the institutional forces behind crime have capital, lethal functionaries, technology, and a capacity to advance criminal interests, both within states and across state lines. To the extent that crime itself is dynamic it must as well be acknowledged that human rights violations in general also have a dynamic character. In short, when …

The International Law Of Torture: From Universal Proscription To Effective Application And Enforcement, Winston P. Nagan, Lucie Atkins

Winston P Nagan

This Article presents a comprehensive review of world torture and the efforts to eradicate it through both official and unofficial strategies of intervention, with special emphasis on the legal strategies. This Article recognizes the complexity of these strategies as they form a vast number of initiatives emerging from various elements of the international community. Part II of the Article touches on matters of definition and legal history. This enables the examination of the inherent characteristics of torture as they impact issues of governance, social control, and principles of basic respect and human dignity. Part III examines the efforts to universally …

Reflections On Racism And World Order, Winston P. Nagan

Winston P Nagan

This Article is about international racism. Racism is not simply a local or national phenomenon, it is an immense global problem. Indeed, its tentacles stretch from the local to the global and back to the local. Let us put the picture of international racism into perspective by tying it to the claims made to eradicate racism in economic relations. Apart from affirmative action, there are two other approaches: either to assert the notion that reparations is a way to ameliorate the worst manifestations of racism and provide for racial justice, or to join that with the notion that there is …

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 …

Developing An International Carbon Tax Regime, Steven Specht

Steven Specht

As atmospheric CO2 remains in the range of 400 ppm, it is necessary to find new international coordination to deal with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative means of energy production. Finally, such a plan will overcome the problem of non-participation of countries in agreements like the Kyoto Protocol. As this is a treaty dealing with economics and trade, countries can place taxes on imports of non-participatory countries under …

The Problem Of Purpose In International Criminal Law, Patrick Keenan

Patrick J. Keenan

International criminal tribunals have become an important part of the landscape of post-conflict reconstruction. Despite their widespread acceptance, scholars and advocates have struggled to articulate a clear purpose for international criminal law. What good is international criminal law? What can it accomplish? What is its purpose? There exists no consensus among scholars and advocates about the purposes of international criminal law, and this lack of clarity affects how the tribunals operate and can undermine their effectiveness. This article fills that gap by first sorting through the competing theories about what the purposes of international criminal law might be. The article …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

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 …