Law Commons^™

Immigration Law's Missing Presumption, Fatma Marouf

Faculty Scholarship

The presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article explores the relevance of a presumption of innocence to removal proceedings, arguing that immigration law has been designed and interpreted in ways that disrupt formulating any such presumption to facilitate deportation. The Article examines the meaning of “innocence” in the immigration context, revealing how historically racialized perceptions of guilt eroded the notion of innocence early on and connecting the missing presumption to persistent associations between people of color and guilt. By analyzing how a presumption of innocence is impeded …

Fishing And Fisheries Under International Water Law: A Dialogue Between Professor Gabriel Eckstein And Professor Paul Stanton Kibel, Gabriel Eckstein, Paul Stanton Kibel

Faculty Scholarship

On April 10 and 11, 2023, the Center on Urban Environmental Law (CUEL) at Golden Gate University School of Law hosted a two-day webinar on International Law Aspects of Fisheries and Hydropower in Europe. To open the webinar, Professor Gabriel Eckstein (of Texas A&M University School of Law) and Professor Paul Stanton Kibel (of Golden Gate University School of Law) participated in a keynote dialogue titled Fishing and Fisheries under International Water Law. What follows is a transcription of this dialogue between Professor Eckstein and Professor Kibel.

A Private And Efficient Approach To Us-China Trade: Bringing A Non-Violation Case In The Wto, Daniel C.K. Chow, Ian M. Sheldon

Vanderbilt Journal of Transnational Law

When Joe Biden defeated Donald Trump to become president of the United States in 2020, many observers hoped that Biden would reset the troubled US-China trade relationship. The Trump administration had abandoned the rules-based approach to international trade of the World Trade Organization (WTO) and adopted a power-based approach instead. Using a power-based approach, the United States imposed or threatened sanctions if China did not dismantle its state-led economy and terminate the use of industrial subsidies to support its domestic industries. The United States also crippled the dispute settlement system of the WTO so that nations could not challenge US …

Measuring Change In Copyright Exceptions For Text And Data Mining, Michael Palmedo, Momina Imran, Miguel Alvarenga, Luca Schirru, Duc Le

Joint PIJIP/TLS Research Paper Series

Copyright exceptions for researchers are under debate at the World Intellectual Property Organization and within domestic governments, yet empirical research in this area is rare. In this early working paper, we aim to add to this nascent body of research. We expand PIJIP’s previous review and classification of copyright exceptions in WIPO Members’ laws by tracing changes in the laws over time. We find that most countries have copyright exceptions allowing some unauthorized uses for research purposes. However, most countries’ exceptions restrict some mix of the users, uses, or types of works that are allowed. High-income countries tend to be …

The Emerging Jurisprudence Of The African Human Rights Court And The Protection Of Human Rights In Africa, John M. Mbaku, Professor Of Economics

Vanderbilt Journal of Transnational Law

During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, …

Prosecuting Gender Persecution At The Icc: Definitions, Policies, And Practice, Milena Sterio, Yvonne Dutton

Law Faculty Articles and Essays

This Article's primary goal is to highlight the International Criminal Court (ICC)'s Office of the Prosecutor (OTP)'s Gender Persecution Policy, while also demonstrating its place in the trajectory of the ICC's progress in changing the course of human history as relates to the recognition of and prosecution of sexual and gender-based (SGBV) crimes. To that end, some background is necessary to contextualize the ICC's current policy and practice as relates to the crime of gender persecution. Part II discusses the Rome Statute's unique contributions to the development of international criminal law regarding SGBV crimes, including the crime of gender persecution. …

Promotion Of Citizenship Through Migration: Taking Into Cognizance The Peculiarities Of Migrant, Uche Nnawulezi, Hilary Nwaechefu

Indonesia Law Review

This study arose out of the growing interest in citizenship issues that have remained an intractable problem in the global migration community. The main objective this study is to examine the realities of global migration which has necessitated expansion on citizenship policies of admission, acquisition of rights, responsibilities, and interest of migrants or residents contained in statutory provisions or frameworks of migrant's country of residence. This is against the backdrop driven by the desire to create stability in the international migration system. It becomes imperative to examined the benefits and protections accorded to migrant in his place of residence which …

Examining The Principle Of Ignorantia Facti Excusat, Ignorantia Iuris Non Excusat In The Corruption Case Nizzadro Fabio, Simplexius Asa

Indonesia Law Review

This study was designed as a normative research based on documentary research while the data is analyzed based on the court decisions and is presented in a qualitative descriptive manner, aiming to find out the essential meaning of the teachings of ignorantia facti excusat, ignorantia iuris non excusat, and to knowing the implementation of the principles of ignorantia facti excusat, ignorantia iuris non excusat. This is in the regulations and judicial practice in Indonesia through the views of the judges in decision Number 20/Pid.Sus-TPK/2022/PN. Kpg. The study found three main conclusions, namely first, the principle of ignorantia facti …

Contradiction Over The Application Of Corporate Liability In Corruption Court Decisions In Indonesia, Budi Suhariyanto, Cecep Mustafa

Indonesia Law Review

This paper presents and critically analyses the application of corporate criminal liability in the decisions of corruption crimes in Indonesia from 1999 to 2019. Of the seven corporate cases that have been prosecuted and convicted in this period. We identify 4 (four) corporate criminal liability models as follows. First, the corporation is accused, prosecuted, and convicted after the management has been convicted through a final and binding decision. Secondly, the corporation is excluded from the indictment but included in the sentencing. Third, the prosecution of corporate crimes negates the criminal liability of its management. Fourth, a portion of corporate criminal …

Consumers' Perceptions Of Digital Privacy In The United States And Japan, Destiny Randle

Whittier Scholars Program

The purpose of my study is to explore the contours of contemporary consumer privacy protections derived from legislation, regulations and publicly available company policies as a way to get a better understanding of how consumer data is protected. A few examples ranging from company-based consumer protection in the United States to data breaches in Japan will be explored and examined. Finally, this paper includes a comparative survey of consumer perceptions and concerns related to personal data privacy in the U.S. and Japan. As a way to assess the degree to which digital privacy and personal data breaches have adversely influenced …

Debt And Dependence: Foreign Interference In Haiti And The Importance Of Non-State Actor Accountability, Sandra Wisner, Brian Concannon

Northwestern Journal of Human Rights

Colonialist policies and lending practices by foreign states and non-state actors have led to serious and wide-spread violations of Haitian individuals’ fundamental human rights. In particular, a series of loan conditions imposed by international financial institutions and their members states left Haiti vulnerable to increased food insecurity and a severely diminished social sector. This paper proposes that the imposition of such loan conditions constitutes a violation of foreign actors’ obligations under international law respecting economic, social, cultural, and political rights, as well as their extra-territorial obligations (ETOs) to take joint and separate action to promote and respect human rights beyond …

Treaties As A Tool For Native American Land Reparations, Hannah Friedle

Northwestern Journal of Human Rights

"The only compensation for land is land."¹

Hundreds of treaties signed. Hundreds of treaties broken. The juvenile United States grew in size as independent Native nations ceded their territory through treaties. Thirsting for more land, the United States broke its promises and continued its manifest destiny westward. And what of tribes’ treaty rights to land? Some Native nations received financial compensation for treaty violations. But money is crumbs to many whose traditional homelands are still colonized.

Tribes are entitled to the land promised to them under treaties—instruments supposedly carrying the force of federal law. Land reparations are a partial …

The Analysis Of Transitional Justice Initiatives And The Flaw Of Prosecution On The Past Human Rights Violation In Indonesia (Tanjung Priok Case), Junaedi Saibih, Elwi Danil, Kurnia Warman, Nani Mulyati

Indonesian Journal of International Law

The political transition from the New Order era to Reform Era has initiated questions to the transitional government about transitional justice initiatives. This chapter discusses the theoretical perspectives on transitional justice that have been developed by many scholars in their publications. Besides the theoretical perspectives about transitional justice, this chapter also discusses transitional justice elements, the forms, and the institution of justice in transitional regimes. The discussion in this chapter is important as a measurement of the transitional government initiatives to reach political stability and reconciling with the past. The explanation about the forms and the element of justice then …

The Eleventh Circuit Is The Captain Now: The Discovery Of A Lost Sixteenth-Century French Royal Navy Shipwreck Sails France Into Litigation, Kirsten Ehlers

Mercer Law Review

X marks the spot! The quest of uncovering historic shipwrecks that were lost at sea and recovering their treasures seemed like an exciting movie script until a sixteenth-century shipwreck was discovered off the coast of Cape Canaveral, Florida, in 2016. That finding later caught the attention of the Republic of France (France) when Global Marine Exploration, Inc. (GME) attempted to salvage the shipwreck France believed to be its sovereign property. That ship was the flagship of the 1565 Royal Navy of France Fleet, la Trinité.

The Two-Way Protective Regime Of Intangible Cultural Heritage In Armed Conflict : Application Of Modern Laws In Amalgamation With Earlier Vedic Traditions., Shivesh Saini

Indonesia Law Review

The destruction of property has been dealt with in different conventions across International Humanitarian Law. These regulations, however, demand more clarity in light of constantly evolving warfare methods. One such aspect is the protection of digital intangible assets in several forms of armed conflict. The existing protection conferred to intangible assets is questionable and has been very little addressed in light of international law in contrast with tangible assets. Therefore, the paper seeks to demonstrate the enforceability of existing principles over intangible assets. In addition, there is explicit dependability of protection of these intangible cultural assets on cyber security. The …

Behind The Scenes Of Controversial International Commercial Arbitration: Case Study Of Heirs To The Sultanate Of Sulu V. Malaysia, Tze Chin Ong, James Ding Tse Wen

Indonesian Journal of International Law

Recently, an ad hoc arbitration final award of US$14.92 billion (approximately RM62.59 billion) in favour of the heirs of the 19^th-century sultanate, the late Sultan of Sulu, Sultan Jamalul Kiram II against Malaysia (the “Award”) that was handed down by a sole arbitrator had created much discussion in the international public and private law arena. Following the issuance of the n Award, Malaysia challenged the Award in the Paris Court of Appeal and successfully stayed the Award’s enforcement in France on July 12. During the same time, on July 11, two Luxembourg-registered subsidiaries of the Malaysian …

Competent Forum And Applicable Law In Personal Data Protection With A Foreign Element, Muhammad Faqih Adhiwisaksana, Tiurma Mangihut Pitta Allagan

Indonesian Journal of International Law

This research analyses on personal data protection with a foreign element as a private international law issue, focusing on competent forum and applicable law. The author uses a juridical-normative research method with literature studies to explain the relevant private international law principles, as well as Indonesian laws and regulations surrounding competent forum and applicable law regarding competent forum and applicable law on personal data protection with a foreign element. The study found that various private international law principles may be used to determine the applicable law in personal data protection with a foreign element dispute, such as nationality, place where …

The Protection And Preservation Of Underwater Cultural Heritage: The Practice Of Indonesia, Dhiana Puspitawati, Rangga Vandy Wardana

Indonesian Journal of International Law

United Nations on Law of the Sea Convention (UNCLOS) recognizes the protection and preservation of underwater cultural heritage found at sea, by emphasizing preferential rights of the State of country of origin, or the State of cultural origin, or the State of historical and archaeological origin. To preserve the rights of such States, UNCLOS implicitly allows the removal of underwater cultural heritage upon prior approval from coastal State based on State’s cooperation. On the other hand, the Convention for the Protection of the Underwater Cultural Heritage 2001 (2001 UCH Convention) strictly prohibited any exploitation and commercialization of such cultural heritage …

An Outlook On Whether Competition In High-Voltage Transmission Line Development Is Necessary?, Andrew Leahy

CICLR Online

Various concerns, such as climate change, supply issues, and bad actors with vast energy resources, have increased global interest in increasing power grid security and efficiency. One method to increase power grid security and efficiency that has gained popularity is using high-voltage powerlines, cables transporting energy over long distances with minimal power losses along the route. The People’s Republic of China has been at the forefront of implementing high-voltage powerlines within its borders. For example, the Changji-to-Guquan project, which began in 2019, consists of a 1,100-kV direct current line spanning 2,046 miles, “roughly the distance between Los Angeles and Cleveland.” …

Election Fraud In Romania, Mara Nicole Chiriac

CICLR Online

Election fraud is a severe issue that has plagued Romania's political system for decades. The electoral process in Romania has been affected by a variety of fraudulent conduct, from suspicions of vote buying to cases of ballot stuffing. This is a significant issue that must be addressed to safeguard the future of the democratic process in Romania and the integrity of its elections.

This post was originally published on the Cardozo International & Comparative Law Review on April 27, 2023. The original post can be accessed via the Archived Link button above.

The Current State Of Art Restitution Laws, Emily Carbali

CICLR Online

New York’s Solomon R. Guggenheim Museum is currently in litigation regarding the Blue Period painting “Women Ironing” by Pablo Picasso. The painting was originally owned by Karl Adler and his wife Rosi Jacobi. Their heirs filed a suit in New York Supreme Court last week arguing that the painting would not have been sold but for the owner’s duress due to Nazi persecution. The family seeks return of the painting or compensation at the painting’s current market value, estimated at up to $200 million.

This post was originally published on the Cardozo International & Comparative Law Review on April 25, …

Governance Of Ocean-Based Carbon Dioxide Removal Research Under The United Nations Conventions On The Law Of The Sea, Wil Burns

Maine Law Review

There has been a spate of research in recent years indicating that achievement of the temperature objectives of the Paris Agreement can only be effectuated through both aggressive decarbonization of the global economy and large-scale deployment of so-called carbon dioxide removal (CDR) approaches. While much of the early focus of CDR research was on terrestrial options, such as afforestation, direct air capture, and bioenergy with carbon capture and storage, more recently, many in the scientific and policy community have increasingly focused on potential ocean-based approaches, including ocean fertilization, ocean alkalinity enhancement, macroalgae harvesting, and ocean upwelling and downwelling. However, while …

The Weaponization Of Rape: Conflict-Related Rape And The International Criminal Court, Claire Velte

International Relations Honors Papers

Conflict-related rape—once thought to be an inevitable symptom of war—has been legally recognized as both a distinct weapon of war and a crime against humanity, yet it continues to be utilized with impunity. To understand why combatants rape, this paper examines the aspects of military culture that create environments in which raping is not only permissible, but encouraged; additionally, this paper considers cases of genocide in Bosnia and Rwanda in which rape was used systematically to achieve political goals, and how these conflicts contributed to new conceptions of rape in international criminal law. These new conceptions of conflict-related rape created …

Understanding China's Cryptocurrency Stance: Analysis Of The Recent Developments And Future Prospects, Zhengchun Wan

CICLR Online

In September 2021, the People’s Bank of China (PBOC), China’s central bank, in conjunction with nine other state bodies, including the police and the supreme court, issued a statement regarding the country’s stance on cryptocurrency businesses. There, regulators have explicitly stated that all cryptocurrency trading, exchanges, and investments—both crypto-to-crypto and crypto-to-fiat—are prohibited, whether they are carried out through domestic or international platforms. Despite China’s official strong hostilities toward cryptocurrencies, some believe the policy might change soon.

This post was originally published on the Cardozo International & Comparative Law Review on April 24, 2023. The original post can be accessed via …

A Fake Future: The Threat Of Foreign Disinformation On The U.S. And Its Allies, Brandon M. Rubsamen

Global Tides

This paper attempts to explain the threat that foreign disinformation poses for the United States Intelligence Community and its allies. The paper examines Russian disinformation from both a historical and contemporary context and how its effect on Western democracies may only be exacerbated in light of Chinese involvement and evolving technologies. Fortunately, the paper also studies practices and strategies that the United States Intelligence Community and its allied foreign counterparts may use to respond. It is hoped that this study will help shed further light on Russian and Chinese disinformation campaigns and explain how the Intelligence Community can efficiently react.

The Constitutional Crisis In Israel, Floersheimer Center For Constitutional Democracy, Israeli Supreme Court Project

Event Invitations 2023

In the 1990s, Israel underwent a "constitutional revolution." Israel is now in the midst of a heated debate over the proper balance of powers between the judiciary and the legislature in a democracy. Our speakers will address the legal, social, and political aspects of the current crisis and place it in the context of Israel's complex history of constitutionalism.

Intersectional Feminist Practice In International Justice: Sexual & Gender-Based Grimes In Ongwen, Cardozo Law Institute In Holocaust And Human Rights (Clihhr), Cardozo International And Comparative Law Review

Flyers 2022-2023

No abstract provided.

Damar Hamlin: Legal Implications Of An Nfl Injury, Evan Feder

CICLR Online

On January 2nd, 2023, in an NFL game played between the Cincinnati Bengals and the Buffalo Bills, Damar Hamlin, a Bills safety, tackled Bengals receiver Tee Higgins. After the collision, Hamlin stood up and began to walk, but after two steps he collapsed to the ground. He went into cardiac arrest and was given CPR and was later taken to the University of Cincinnati Medical Center in critical condition. On the following Monday, January 9th, Hamlin was released from the ICU, and he has continued to improve since then. It was an extremely rare injury; in fact, there has only …

Humanitarian Protection In International Refugee Law, Sexism And Exclusion: Case For Human Rights Assessment, Carol Ijeoma Njoku

Theses and Dissertations

The overall purpose of the 1951 Convention Relating to the Status of Refugee (Refugee Convention) and its 1967 Protocol is to protect refugees fleeing persecution and threat to life. Established in the aftermath of World War II (WW II), Article 1. A(1) of the Refugee Convention centered the meaning and criteria for refugee protection on the circumstances of the War. Thus, the status of a refugee is framed from persecution feared or suffered “on account of” race, religion, nationality, political opinion, and membership in a particular social group. More than seven decades after WW II, the scope of the definition …

Rescaling City Property, Amnon Lehavi

Arkansas Law Review

This Article seeks to identify the growing tension between the contemporary physical and digital reality of cities across the world and the formal, often archaic, body of norms that governs city powers and duties vis-à-vis different types of persons and corporations: locals, non-local residents of the same nation-state, and foreigners. The nation-state’s continuing dominance, both in the domestic division of power across various legal systems and in the international arena, often results in a systemic mismatch.