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Criminal Law

University of Massachusetts School of Law

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Full-Text Articles in Law

Spreading Democracy Everywhere But Here: The Unlikely Prospect Of Foreign National Defendants Asserting Treaty Violations In American Courts After Sanchez-Llamas V. Oregon And Medellin V. Dretke, Miriam F. Miquelon-Weismann Dec 2014

Spreading Democracy Everywhere But Here: The Unlikely Prospect Of Foreign National Defendants Asserting Treaty Violations In American Courts After Sanchez-Llamas V. Oregon And Medellin V. Dretke, Miriam F. Miquelon-Weismann

University of Massachusetts Law Review

To squarely address this decisional quagmire, this article examines the binding effect of ICJ orders, entered pursuant to its compulsory jurisdiction, on American courts; earlier decisions of the Supreme Court penalizing foreign nationals for failing to timely raise individual treaty claims; the effect on treaty enforcement in domestic courts after the executive branch’s recent foreign policy decision to withdraw from compulsory ICJ jurisdiction; the current policy disputes dividing the United States and the ICJ; and, the national interest, or lack thereof, in treaty compliance. The article concludes that the government’s current claim that a “long standing presumption” exists to prevent …


Un-Torturing The Definition Of Torture And Employing The Rule Of Immigration Lenity, Irene Scharf Jan 2013

Un-Torturing The Definition Of Torture And Employing The Rule Of Immigration Lenity, Irene Scharf

Faculty Publications

In the first three sections, I examine the background of the Convention in the context of international human rights instruments (Section I); the context for a critique of the CAT’s definition of torture, given the legislative history of the Convention and an existing statute that could aid in correcting the misinterpretation adversely affecting CAT enforcement (Section II); and the adverse international implication of the United States’ restrictive meaning of torture (Section III). In a concluding section (IV), I offer possible solutions to the problem, invoking a robust principle of Immigration Lenity to prevent the return of potential torture victims to …