Law Commons^™

Perempuan Pekerja Migran Non-Reguler: Konflik Hukum Dalam Pengaturan Perdagangan Orang Dan Penyelundupan Orang, Sriwiyanti Eddyono

Jurnal Hukum & Pembangunan

This paper analyzes the extent to which Indonesian law regulates the position and protection of irregular women migrant workers and the implication of the arrangement of law for irregular women migrant workers who experience human trafficking and people smuggling. This paper follows up on field findings on human trafficking in the Kalimantan border which was carried out in 2018-2019. This paper finds that there are complications in the regulation on laws and regulations, related to the regulation of Irregular Migrant Workers. Even though the law which is based on international conventions explicitly regulates Non-Regular Migrant Workers (Migrant Workers Convention 1990) …

مبدأ الضرورة العسكرية، وانتهاكات قواعد القانون الدولي الإنساني دراسة تطبيقية على مخالفة "إسرائيل" لمبدأ الضرورة العسكرية خلال حرب (مايو2021م)., إياد محمد أبو مصطفى ماجستير

Journal of Al-Azhar University – Gaza (Humanities)

الملخص :

إنَّ التسليم بالاستناد إلى حالة الضرورة أثناء النزاعات المسلحة، كاستناد يُخرج سلوك المقاتل عن التصرفات المسموح بها أصبح أمرًا معترفًا به، غير أنَّ تجريد هذه الحالة من الشروط اللازمة لأعمالها، والضوابط الواجبة لتقييدها خاصة قيدي: "التناسب، والتمييز" أمر لا يمكن السماح به مهما كانت الظروف والمتغيرات الحاصلة في تطوير العلاقات بين الدول، ويُعدُّ هذا المبدأ متغيرًا بطبيعته غير القابلة للضبط أو التحديد بشكل واضح، الأمر الذي جعل هذا المبدأ ذريعة لدى الدول لانتهاك قواعد القانون الدولي الإنساني؛ ومن أهمها: دولة الاحتلال التي قامت بانتهاكه ومخالفة شروطه، وعدم مراعاة قيوده خلال حرب (مايو 2021م) على قطاع غزة.

وخَلُص البحث …

Challenging Solitary Confinement Through State Constitutions, Alison Gordon

University of Cincinnati Law Review

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.

State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state …

Korematsu’S Ancestors, Mark A. Graber

Arkansas Law Review

Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided …

Creating Cautionary Tales: Institutional, Judicial, And Societal Indifference To The Lives Of Incarcerated Individuals, Nicole B. Godfrey

Arkansas Law Review

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued the above-quoted clarion call to protect the lives of incarcerated people on May 14, 2020. At that point, the COVID-19 pandemic had brought American society to a standstill for a little more than two months, …

Covid–19, Housing And Evictions: A Comparative Case Study Of Housing Law And Policy In The United States And Argentina Through An International Human Rights Lens, Lily Frances Fontenot

University of Miami Inter-American Law Review

This Note seeks to address the impact of international human rights obligations on domestic housing laws and policies through a comparative case study of Argentina and the United States. Specifically, it will discuss each country’s response to the COVID-19 pandemic, their housing obligations under international human rights law, and how each country is addressing their own unique housing and eviction crises. Finally, this Note will offer recommendations on how each country should modify their housing policies in light of the pandemic in order to comply with international human rights standards.

Prosecutorial Supervisions Of The Implementation Of Anti-Torture Legislation: An Analysis Of International Law And National Legislation, Barno Kadirova

ProAcademy

This article examines the analysis of national legislation and international law on the prevention of torture and other cruel, inhuman or degrading treatment or punishment, international standards, principles of responsibility and the improvement of prosecutorial control over the implementation of anti-torture legislation. In addition, the role of prosecutorial oversight in the prevention of torture is based on the views of legal scholars and practitioners, as well as appeals to the prosecutor's office by the Prosecutor General's Office about illegal actions by law enforcement officers and torture by the Supreme Court. Information on criminal cases on torture is provided. The author …

Procedural Order Of Carrying Out Expertise On Criminal Cases, Istam Rustamovich Astanov

ProAcademy

Production of expertise on a scene in parallel with its survey in most cases is impossible for the reasons of procedural character: inspection of a scene is, as a rule, performed before initiation of legal proceedings that doesn't allow the investigator before making decision on its excitement to appoint expertise. At the same time to reveal signs of a crime and to fix traces it according to law requirements sometimes happens it is simply impossible without carrying out expert research. It was the cause of statement by us of a question of possibility of purpose of expertise before initiation of …

Legal Nature, Historical Developments Of Expertise And Comparative Analysis Of The Legislation Of Foreign Countries, Astanov Istam Rustamovich, Astanov Shuxrat Rustamovich

ProAcademy

This article is About expertise on criminal affairs is the separate give special status a type of the expertise, different carrying out research from the person possessing special knowledge. Expertise on criminal affairs differs from other types of expertise by that it is appointed and carried out according to strictly and precisely established Code of criminal procedure rather. The part second of article 153 Criminal Procedure Code of Moldova, devote interrogation the expert, consolidates norm on which it is forbidden to make interrogation before submission of the expert opinion and its studying. Fixing of such rule in part the second …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Protecting Internet Access: A Human Rights Treaty Approach, Harpreet Kaur

Brooklyn Journal of International Law

With the evolution of the internet, the world has also seen a marked increase in government-ordered internet shutdowns and restrictions, sometimes with dubious justifications and sometimes with no justification at all. As people have become increasingly reliant on the internet for their day-to-day activities and to keep up with important news, internet restrictions often disrupt lives and violate people’s civil and human rights. While no international law directly protects internet access, it is implicitly advocated for under the freedom of opinion and expression. The upward trend of internet restrictions, however, suggests that an implied protection of access to a necessary …

Due Process In Prison Disciplinary Hearings: How The “Some Evidence” Standard Of Proof Violates The Constitution, Emily Parker

Washington Law Review

Prison disciplinary hearings have wide-reaching impacts on an incarcerated individual’s liberty. A sanction following a guilty finding is a consequence that stems from hearings and goes beyond mere punishment. Guilty findings for serious infractions, like a positive result on a drug test, can often result in a substantial increase in prison time. Before the government deprives an incarcerated individual of their liberty interest in a shorter sentence, it must provide minimum due process. However, an individual can be found guilty of serious infractions in Washington State prison disciplinary hearings under the “some evidence” standard of proof—a standard that allows for …

Autonomous Weapons Systems And The Procedural Accounta- Bility Gap, Afonso Seixas-Nunes

Brooklyn Journal of International Law

The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human …

Hong Kong’S Extradition Bill: Implications & Ramifications, Grace Wang

Brooklyn Journal of International Law

Since June 2019, millions of people in Hong Kong protested against the proposed extradition bill, which would permit the HKSAR government to extradite anyone residing, visiting, or passing through Hong Kong to mainland China with which it has no formal extradition agreement with. This Note will argue that the proposed extradition bill not only created a legal loophole in the existing system by removing legislative scrutiny and judicial oversight, but also violated international human rights law in light of mainland China’s record of serious human rights violation. Instead, the HKSAR and PRC governments should cooperate to create an impartial special …

High Time For A Change: How The Relationship Between Signatory Countries And The United Nations Conventions Governing Narcotic Drugs Must Adapt To Foster A Global Shift In Cannabis Law, Alexander Clementi

Brooklyn Journal of International Law

Since the early 1970’s, the inclusion of cannabis and its byproducts in the United Nations Single Convention on Narcotic Drugs has mandated a strict prohibition on cultivation and use of the substance, which has led to a largely global practice of criminalization and imprisonment of anyone found to be in its possession. Yet recently, mostly in response to growing public health concerns, countries like Uruguay, Portugal, The Netherlands, Canada, and the United States have enacted laws which seek to decriminalize or even legalize cannabis use and possession. Yet, cannabis remains classified as a Schedule IV narcotic under the Single Convention, …

Mental Illness In The Criminal Justice System: Erasing The Stigma On A Global Scale, Jennifer Rabbino

Brooklyn Journal of International Law

Mental illness has long been misunderstood and severely stigmatized worldwide. For several hundred years, rather than offering prompt and proper treatment, most countries treated mental illness by isolating patients from society. Moreover, that ill treatment remains to this day, with over 90% of the developing world's population living with a mental illness completely untreated and legal systems the world over struggling with how best to treat mentally ill defendants fairly. This Note will scrutinize and compare the treatment of the mentally ill defendants in Western and African nations. It will then focus on the legal systems in Uganda and Ghana …

Compulsory Dna Testing In Argentina: The Right To Truth Versus The Right To Privacy, Margaret Foster

Brooklyn Journal of International Law

During the Dirty War—a seven year repression by the Argentinian junta of political dissidents and alleged subversives—an estimated 500 babies were stolen from their mothers while imprisoned and given to leading military officials as "adopted" children. These children had their true identities erased and replaced with a false one covering up their true origins. This Note will explore Argentina's response to the Dirty War. Namely, it will consider the tension between the right to truth—an international right right often associated with enforced disappearances—and the right to privacy. In particular, it will consider cases in which adults resisted DNA testing to …

Digital Privacy Rights And Cloud Act Agreements, Tim Cochrane

Brooklyn Journal of International Law

The United States (US) and United Kingdom (UK) will soon bring into force a new international law enforcement data sharing ‘CLOUD Act agreement’ (US-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act). These agreements enable law enforcement in one state to directly request data from service providers based in the other state. They respond to long-standing concerns with the main mechanism for obtaining overseas data, mutual legal assistance (MLA). The US and UK claim the US-UK Agreement will significantly speed up data access relative to MLA while “respecting privacy and …

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch

Brooklyn Journal of International Law

Confronted every day with drastically increasing accounts of hate crimes and hate speech, nations’ legislators have routinely tried and subsequently failed to implement effective legislation capable of curbing the hatred epidemic currently sweeping the globe. This failure is due in large part to the lack of a universal stance on hate crime regulation and criminalization. Two countries in particular, the United States and Germany, embody two diametrically opposing approaches taken by nations in the present-day war on hate speech. This Note explores the dramatic dichotomy between the legislative framework surrounding the regulation of hate speech in these two countries. This …

Venezuelan Prisons' Human Rights Violations And Suggested Reforms Based On The Success Of Norway's Restorative Justice-Focused Approach To Incarceration, Nadiya Singh

Brooklyn Journal of International Law

Venezuela holds the title for having the highest crime index in the world, serving as a microcosm of the country’s widespread and devastating political and humanitarian inadequacies. Its prisons are rife with deadly disease, severe overcrowding, and starving prisoners whose entry into these facilities calls into question their guaranteed human rights under the Venezuelan Constitution. This Note highlights these injustices and argues that the starvation, physical and mental abuse, and extreme neglect that Venezuela’s prisoners are subject to, violate the protection of their guaranteed human rights under Articles 46 and 83 of Venezuela’s Constitution. A comparative analysis of Norway, which …

Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani

Brooklyn Law Review

The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This …

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Contemporary Trends In Combating Transnational Financial Crimes, Khamzaev Dilaver

ProAcademy

In the article, the author highlights the lack of effective law enforcement in the field of combating transnational financial crimes as an existing problem in this area. This conclusion was made based on an analysis of the views and opinions of representatives of legal science and practitioners in this field, as well as the reporting documents of mutual assessments for compliance with international standards of Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) systems of the participating states of the Financial Action Task Force on Money Laundering (FATF). The author, dividing the ways of improving the effectiveness of the implementation …

On The Organization Of The Pro Curatorial Organs In China And Its Reform Of The Internal Institutions, Ji Meijun

ProAcademy

The organizational structure of Chinese prosecutor’s organs reflects country’s historical traditions and legal system, and thus it clearly differentiates from other jurisdiction in the world, especially the jurisdictions of the common law legal system. The article starts with the constitutional grounds for prosecutor’s activities, and focuses on the major developments in the structure and powers of Chinese prosecutor’s Organs. The changes are analysed that took place with the creation of the National Supervisory Commission, when the power of investigation of duty crimes of the prosecutor’s organs has been taken away. The prosecutorial agencies and the courts belong to different power …

Tasking The Leviathan: Right To Protest, Good Governance, And Implications For National Security And International Law, Olalekan Moyosore Lalude

Journal of Sustainable Social Change

The right to good governance is a right inalienable to the democratic process. Content analysis was used as the data source for this paper. This study would attempt to resolve the questions on the intricate connection between the right to protest and the right to good governance in Nigeria and what this means for national security and international law. In this essay, it was argued that the international law space is shrinking for holding the democratic process accountable in sovereign states. The significance of the essay is to suggest a new direction for the engagement of international law mechanisms on …

"Authoritarian International Law" In Action? Tribal Politics In The Human Rights Council, Yu-Jie Chen

Vanderbilt Journal of Transnational Law

The international human rights regime, a product of post- war liberalism, is increasingly falling under the shadow of authoritarian countries that try to influence the regime in favor of their illiberal agendas. This Article uses the United Nations Human Rights Council (HRC) as a prism to examine the changing dynamics among leading authoritarian and democratic actors as they contend to shape global human rights norms and institutions. This Article argues that China, the most resourceful authoritarian party-state, is engaging in what can be understood as tribal international politics, forming coalitions with authoritarian governments and developing countries that have different state …

Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert

Michigan Law Review

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements …

When The Conditions Are The Confinement: Eighth Amendment Habeas Claims During Covid-19, Michael L. Zuckerman

University of Cincinnati Law Review

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these …

Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, Kathryn Chan, Howard Kislowicz

Dalhousie Law Journal

Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, “intervening” in judicial proceedings in an effort to advance their preferred interpretations of particular rights.

Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts’ understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom. …

Dossier: The Stateless Rohingya—Practical Consequences Of Expulsion, Fiza Lee-Winter, Tonny Kirabira

Genocide Studies and Prevention: An International Journal

The international community has been called upon to ramp up efforts to end statelessness and provided with a guiding framework of 10 Actions. This dossier presents the practical consequences of expulsion, both direct and indirect outcomes of collective violence, directed towards the Rohingyas. Touching upon the nexus between children's rights, human trafficking, and practical challenges associated on-the-ground, the dossier also discusses the imperative need for the Association of Southeast Asian Nations (ASEAN) states—collectively as a region—to take steps in fulfilling Action 7 of the Global Action Plan through the birth registration of Rohingya children as part of their existing efforts …