Digital Commons Network^™

Evaluating The Singapore Convention Through A U.S.-Centric Litigation Lens: Lessons Learned From Nearly Two Decades Of Mediation Disputes In American Federal And State Courts, James R. Coben

Cardozo Journal of Conflict Resolution

This chapter assesses the likely efficaciousness of the Singapore Mediation Convention based on nearly two decades experience of systematically tracking and studying mediation litigation in the U.S. federal and state courts.

The Blood Antiquities Convention As A Paradigm For Cultural Property Crime Reduction, Derek Fincham

Cardozo Arts & Entertainment Law Journal

In 2017, the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention, which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe's Convention at a meeting held in Lucca, …

The Quadrangulation Project: Reconciling International Modes Of Liability With Domestic Liability For Genocide, War Crimes, And Crimes Against Humanity, Chelsea Rubin

Dalhousie Journal of Legal Studies

Political ideology aside, Canada has been seen as a global leader in the ever-developing international criminal law project. Yet, this position, and the legitimacy that accompanies it, is increasingly under threat. As Prosecutor Bensouda of the International Criminal Court begins her investigation into war crimes and crimes against humanity in Afghanistan, it is possible Canadians will fall within the scope of potential indictments. Herein lies the threat to Canada’s position. Canada was among the earliest states to adopt implementing legislation following its ratification of the Rome Statute of the ICC. Yet, efforts to prosecute war criminals domestically have lagged. Should …

Human Rights Racism, Anna Spain Bradley

Publications

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes …

Investigative Delegations: Predictable Predicaments, Nancy Amoury Combs

Faculty Publications

No abstract provided.

No Longer Immune? How Network Theory Decodes Normative Shifts In Personal Immunity For Heads Of State, Nadia Banteka

McGeorge School of Law Scholarly Articles

The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity movements, coupled with pleas for international criminal responsibility for egregious human rights and humanitarian violations, have eroded them, particulary within international jurisdictions. These changes reflect a larger challenge to the traditional statecentric model. Although states remain the primary makers of international law, many other participants, including international organizations, courts, and non-governmental oganizations (NGOs), are crucial to the development of international legal norms …

National And Transnational Constitutionalism, And The Protection Of Fundamental Human Rights, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2019 Plenary Session
Nation, State, Nation-State
1-3 May 2019
V. Hösle (editor)
Acta 22, Vatican City, 2019

From the Author

In this paper I would like to explore the complicated and ambiguous relationship between the idea of universal human rights and the idea of a nation state with its own particular identity, history, and culture. I will do so from the disciplinary perspective of law, in particular comparative constitutional law and international human rights law, by examining the basis of claims of what I will call “national constitutionalism”, focusing on the …

The International Law Commission’S Soft Law Influence, Elena Baylis

FIU Law Review

No abstract provided.

Armed Conflict At The Threshold, Deborah Pearlstein

Articles

Seventeen years into the United States’ engagement in what America has controversially understood as a global, non-international armed conflict against a shifting set of terrorist groups, a growing array of scholars has called for a reassessment of the significance of the “armed conflict” classification under international humanitarian law (IHL). The existence of an “armed conflict” has long been understood as a proxy on/off switch of inescapable importance. When an “armed conflict” exists, lethal targeting—without regard to particular self-defensive need or immediacy of threat—is permitted as a first resort. When an “armed conflict” does not exist, it is not. Challenging the …

Financing Cr-Isis: The Efficacy Of Mutual Legal Assistance Treaties In The Context Of Money Laundering And Terror Finance, Michaelene K. Wright

Vanderbilt Journal of Transnational Law

Technological development throughout the past fifty years has created a world in which information can be communicated across the globe in no time at all. International law enforcement tools like mutual legal assistance (MLA), on the other hand, have not changed with nearly the same pace. Unfortunately, criminal activity rarely stops at international borders, necessitating international cooperation for any sort of effective enforcement. As this Note will discuss, the problems attendant in the current mutual legal assistance scheme, such as extensive delay and incompatibility with electronic data, have led to global tension over extraterritorial action and conflict between regulatory bodies. …

The Persecution Of Stones: War Crimes, Law's Autonomy And The Co-Optation Of Cultural Heritage, Timothy W. Waters

Articles by Maurer Faculty

In 1567, a bridge was built over a river in Bosnia-a bridge widely seen as a work of great beauty. In 1993, it was destroyed in a war. What did its destruction mean? Was it a crime-and which one? An assault on culture-and whose? Between 2004 and 2017, a trial held in The Hague sought to answer these questions. The way it did-the assumptions and categories the prosecutors and judges deployed, the choices they made-tells us something important about how law operates and how it appropriates other bodies of knowledge, whether in a now-obscure Balkan conflict or on the battlefields …

Talking Foreign Policy: Responding To Rogue States, Paul Williams, Todd F. Buchwald, James Johnson, Michael P. Scharf, Milena Sterio

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Political Trust In Kosovo: Exploring Cultural And Institutional Dynamics, Ermira Babamusta

Graduate Theses, Dissertations, and Problem Reports (ETD)

In this dissertation I examine political trust perceptions across different political-legal institutions and actors in Kosovo. I evaluate the levels of political trust using cultural and institutional performance explanations to investigate the key factors that have an impact on political trust. The study explores national political trust and international political trust, considering many domains of political trust: government, political leaders, political parties, Kosovo Courts, Kosovo Police, NATO, United Nations, European Union, and the Kosovo Specialist Court. There is growing concern about lower levels of political trust across Europe, especially in post-communist countries. In this study, I make the case that …

Investigating Potentially Unlawful Death Under International Law: The 2016 Minnesota Protocol, Christof Heyns, Stuart Casey-Maslen, Toby Fisher, Sarah Knuckey, Thomas Probert, Morris Tidball-Binz

Faculty Scholarship

Across every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the …

There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.

Notwithstanding nearly …

The "Foreign Agent Problem": An International Legal Solution To Domestic Restrictions On Non-Governmental Organizations, Jacqueline Van De Velde

Cardozo Law Review

The United States' Foreign Agent Registration Act (FARA), has recently come into the spotlight due to its use in the ongoing Russian election interference investigation. But the United States 'foreign agent restriction is only one of many: while FARA was the first of its kind, it now exists among a multitude of such restrictions. Too, the U.S. foreign agent restriction is lenient, compared to the restrictions appearing in other countries- restrictions that now are crippling civil society and to which international law is ill-equipped to respond. This Article analyzes this sudden avalanche of 'foreign agent" legislation: restrictive domestic legislation that …

Straining To Prevent The Rohingya Genocide: A Sociology Of Law Perspective, Katherine Southwick

Genocide Studies and Prevention: An International Journal

This paper analyzes the generally muted international response to the protracted plight of the Rohingya, a persecuted Muslim minority in Myanmar, from the perspective of sociology of law. The first part provides background on the Rohingya crisis and discusses relevant international legal frameworks relating to crimes against humanity and genocide. The second part adapts analytical frameworks developed by Felstiner, Abel, and Sarat on the emergence and transformation of disputes, in order to examine some of the factors that frustrate the processes of naming crimes, blaming perpetrators, and claiming rights and protection for the Rohingya minority in the international context. Work …

Protecting Women's Rights? Prospects Under The Un Human Rights Treaty System: A Case Study On India 2005-2017, Deepali

LLM Theses

The establishment of the United Nations Treaty System was the fundamental step for the protection and enforcement of women’s rights. The system is designed to monitor the human rights standards in countries that have ratified the treaties, called state parties. However, the system is facing several challenges that have compromised its effective working for the protection and enforcement of women’s rights. The thesis seeks to explain the challenges to the effective working of the system, that is, why the system does not work as designed in protecting women’s rights against three specific issues: domestic violence, sexual trafficking, and reproductive rights. …

Case Global: Faculty And Students Provide Vital Assistance To Un's Investigation Of Syrian Atrocities, Case Western Reserve University School Of Law, The Frederick K. Cox International Law Center

Case Global Newsletter

Vol. 10, No. 1 (2018)

• Welcome (Dean Scharf)
• Faculty and students provide vital assistance to UN's investigation of Syrian atrocities
• Special Report: Case Western Reserve’s Contributions to International Prosecutions
• A Nobel Nomination
• Playing a Part in the Trial of the Century
• Taking on the Terrorists 9/11 (Special Report)
• Cambodia & Lebanon (Special Report)
• Combating Maritime Privacy (Special Report)
• Case Grads Employed at International Tribunals
• Former Prosecutor Teaches Law Students to Go After International Injustices
• CWRU’s Immigration Law Program leads to Exciting Career Opportunities…
• It Started with a Cox Center-Funded Internship
• Q&A with Aleksandar Cuic, Immigration Clinic Professor
• Human Rights Clinic …

Policing Against The State: United Nations Policing As Violative Of Sovereignty, Alexandra R. Harrington

San Diego International Law Journal

It is the author's contention that both parties to the policing arrangement-be they individuals, states, or organizations-give up portions of their sovereignty in the creation and maintenance of the police and policed relationship where the police are not serving the state which theoretically guards the policed. Part II of this Article provides a discussion of legal concepts of state sovereignty in international law. Part III examines the role of police in U.N. peacekeeping missions from the first peacekeeping mission entailing policing operations in the 1960s through present day operations. This examination reveals a pattern in the growth and development of …

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

Modularity In Cross-Border Insolvency, Andrew B. Dawson

Chicago-Kent Law Review

This Article proposes a framework for thinking about the design structure of the Model Law on Cross-Border Insolvency. The Model Law has been successful by many metrics; however, it has faced various implementation challenges. As leading scholar Professor Jay Westbrook has noted, thinking about these problems requires thinking about the Model Law as a system. To understand the system, it is necessary to understand its architecture, and I argue that this architecture is best understood as reflecting a modular design structure, i.e., one that divides complex systems into a hierarchical system of self-contained components. Modularity has provided insights into other …

Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart

ILSA Journal of International & Comparative Law

No abstract provided.

It Is Not About The Drugs: A Comparative And Contextual Analysis Of Singapore And European Approach To Drug Issues, Rathna N. Korman

Research Collection Yong Pung How School Of Law

This article aims to establish that Singapore’s drug policy and approach though not in tandem, is consistent with the elements espoused in the harm reduction approach advocated by the Global Commission on drug policies. The Commission takes the position that drug control nationally has to be aligned with the sustainable development goals agenda approved by the member states in 2015. It has recommended abolishing death penalty for all drug related offences, decriminalizing drug possession and cultivation for personal consumption, implementing non-penal sanctions for all low level drug offenders, and exploring non-penal regulatory models following decriminalization. There is a paradigm shift …

The Effect Of Globalization On The National Criminal Law Systems, Shirin Ahmadi Dastjerdi, Abbas Sheikholeslami, Haniyeh Hojabrosadati

Library Philosophy and Practice (e-journal)

Globalization has influenced many human life scopes with a variety of tools, which the cyberspace playing the most role. Although both cyberspace and globalization have had many benefits to human life, both as a tool and as a process, they have been able to assist offenders to bring crime into the cyberspace without any trouble. Therefore, today criminologists discuss the globalized world of crime. Although, the processes of homogenization and globalization have been precious to human beings, should not be overlooked. In this article, the author has tried to explain the cybercrime in the age of globalization, with an emphasis …

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers in …

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

The Rome Statute: Global Justice And The Asymmetries Of Recognition, Hans Lindahl

Indiana Journal of Global Legal Studies

Given the emergence of challenges that are increasingly global in nature, and given the irreducible contingency of state borders, it would seem that justice must become global justice: justice that takes shape through a legal order that holds for all of humanity and everywhere. But is justice for all and everywhere possible? At issue, in this question, is not a rearguard defense of the state and state law. Instead, the question concerns the globality of global law and global justice. Is any legal order possible, global or otherwise, that organizes itself as an inside without an outside, that is, which …

Prosecuting U.N. Peacekeepers For Sexual And Gender-Based Violence In The Central African Republic, Sophia Genovese

Brooklyn Journal of International Law

Women and children living in armed conflict are amongst the most vulnerable populations at-risk of sexual and gender-based violence. When U.N. peacekeepers arrive to help dispel conflict; these populations believe that the soldiers in blue helmets will protect them. Instead; hundreds of women and children in the Central African Republic have reported being raped and sexually violated by U.N. peacekeepers. Despite compelling evidence to validate these claims; U.N. peacekeepers who commit these crimes are seldom held accountable. This Note discusses how to hold U.N. peacekeepers accountable for their human rights violations. This Note argues that troop-contributing countries should retain responsibility …