Law Commons^™

Stateless, Jay Milbrandt

Jay Milbrandt

Traveling to Southeast Asia to research human trafficking, I encountered scores of “stateless” women and children—citizens of no country and wanted by no country. By operation of law, they were denied citizenship. Left stateless, these individuals quickly became vulnerable to human rights abuses, exploitation, and trafficking.

The United Nations estimates that as many as 12 million people worldwide are victims of statelessness. From South East Asia to the Middle East, Africa and Eastern Europe, denial of citizenship takes form as both a failure of law and tool for oppression.

Fortunately, this problem was solved before. After World War I, Europe …

The Crime Of Aggression: Analysis And Application Of The International Criminal Court’S Definition Of The Crime Of Aggression At The 2010 Review Conference, Michael K. Marriott

Michael K Marriott

The concept of the 'crime of aggression,' or similarly waging a 'war of aggression,' has been an amorphous term of general condemnation since the founding of the United Nations in at the end of the Second World War. The condemnation of ‘wars of aggression’ should come as little surprise considering the fact that the United Nations was founded on the principles of commitment to the maintenance of international peace and security, the development of friendly, or better stated non-hostile relations between nation-states, and the promotion of increased living standards, social progress, and human rights. Note, however, that at the founding …

Utilizing The Past To Shape The Future: The Rehabilitation Of Child Soldiers In Darfur, Michael K. Marriott

Michael K Marriott

Child soldiering, an unfortunate reality of war, has become increasingly common in modern warfare. With world attention focused on the genocide taking place in the Darfur region of Sudan, issues regarding the use of child soldiers in the conflict have come to light. By providing an overview of the use of child soldiers both globally and in Sudan, discussing the relevant legal norms theoretically governing the country and providing a case study on Sierra Leone, this paper ultimately provides an analysis and proposed framework for comprehensive programs that could be put into action after cessation of hostilities in an attempt …

Revisiting Extraterritoriality: The Echr And Its Lessons, Barbara L. Miltner

Barbara L. Miltner

The extraterritorial scope of international human rights treaties has prompted vigorous debate in recent years. Much of this debate has focused on earlier developments in the European Court of Human Rights as well as the comparative jurisprudence of other international human rights treaties, with a particular focus on the concept of jurisdiction. This article refocuses the inquiry from a broad-spectrum comparative approach to an in-depth case study examining the complex interplay of factors influencing the extraterritorial application of the European Convention on Human Rights. While prior articles have focused nearly exclusively on its general jurisdiction clause, this paper recognises the …

Don’T Split The Baby: How The U.S. Could Avoid Uncertainty And Unnecessary Litigation And Promote Equality By Emulating The British Surrogacy Law Regime, Austin R. Caster

Austin R Caster

This article will show that the United States can protect the rights of the intended parents, the surrogate, and the child while avoiding uncertainty and unnecessary litigation by enacting uniform legislation akin to the United Kingdom’s regime. The first section will examine the history of surrogacy law in the United States, demonstrate the inconsistency of these laws, and suggest that reform is needed. Section two will discuss the United Kingdom’s legislative response to the problem of surrogacy arrangements, which has provided more uniformity despite obstacles similar to those faced in the United States. The third section will illustrate that the …

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw

Scott Titshaw

The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships. The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can …

Prosecuting Charles Taylor’S Son For Torture: A Step Toward The Domestication Of International Law, Thomas J. G. Scott

Thomas J. G. Scott

Several federal statutes criminalize conduct by foreigners that has no relation to the United States. These statutes, and the prosecutions conducted pursuant to them, raise questions about Congress’s legislative authority and individuals’ Due Process rights in a globalized world. In part to avoid thorny issues about the relationship between constitutional law and international law, the U.S. has not – aside from piracy cases – pursued any prosecutions based purely on universal jurisdiction. Despite these challenges, human rights activists remain hopeful that U.S. courts will soon exercise jurisdiction over – and thus end impunity for – atrocities committed abroad. The 2008 …

Post Baby Boy V. United States Developments In The Inter-American System Of Human Rights: Inconsistent Application Of The American Convention’S Protection Of The Right To Life From Conception, Ligia M. De Jesus

Ligia M. De Jesus

This article examines the question of whether the Inter-American system of human rights has effectively applied article 4(1) the American Convention on Human Rights (hereinafter American Convention or Convention), which protects the right to life from the moment of conception and, if so, to what extent. The paper carries out a critical assessment of the Inter-American system’s current application of article 4(1), which stands out among other international human rights treaties for its explicit recognition that human life begins at conception and for its unequivocal protection of the unborn child’s right to life in utero. Section II looks at the …

Revisiting Baby Boy V. United States: Why The Iachr Resolution Did Not Effectively Undermine The Inter-American System On Human Rights’ Protection Of The Right To Life From Conception, Ligia M. De Jesus

Ligia M. De Jesus

Not many are aware Roe v. Wade and Doe v. Bolton were challenged before the Inter-American Commission on Human Rights (IACHR) in 1981. In Baby Boy v. United States, the quasi-judicial regional human rights body concluded that the abortion of Baby Boy, a viable male fetus, was permissible under the American Declaration of the Rights and Duties of Man and, incidentally, the American Convention on Human Rights, notwithstanding the fact that the latter protects the right to life "from the moment of conception" and the former contains an implied right to life for every "human being". In addition, the Commission …

The Missing Girls Of China: Population, Policy, Culture, Gender, Abortion, Abandonment, And Adoption In East-Asian Perspective, David M. Smolin

David M. Smolin

This article analyzes the causes and possible solutions to the sex ratio imbalance of China, as well as the causes of the diminishing numbers of intercountry adoptions from China. Part I provides statistical, historical, and cultural analysis of China's "missing girls" (sex-ratio imbalance), concluding that sex selective abortion has become the primary cause of China missing approximately ten percent of females at birth. The article focuses on both cultural factors and China's population control policies as causative factors. Part II discusses population control, declining fertility, and the devaluation of girls and women, analyzing a context where declining fertility has been …

Legal Pluralism In Post-Colonial Africa: Linking Statutory And Customary Adjudication In Mozambique, David Pimentel

David Pimentel

Legal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state. The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many—colonists in the past, and political opportunists today—who have exploited …

A Comparative Analysis Of The Right To Appeal, Peter D. Marshall

Peter D Marshall

This article focuses on the origins and contemporary understandings of the right to appeal against conviction and sentence. Adopting a comparative approach, the article first argues that, despite very different historical foundations and institutional structures, the past century has seen considerable convergence in how criminal appeals are conceptualized in common law and civil law jurisdictions. A number of reasons for this convergence are identified. The article’s focus then turns to the substance of the right, particularly the scope of review. It is argued that, although certain differences remain, a shared understanding of the right’s essential features is emerging. States, it …

Blood Quantum, Race, And Identity In Indian Country, Sarah Montana Hart

Sarah Montana Hart

This article discusses how blood quantum laws affect racism and other relations between Indian nations and the United States.

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Faculty Scholarship

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

Forced To Flee And Forced To Repatriate? How The Cessation Clause Of Article 1c(5) And (6) Of The 1951 Refugee Convention Operates In International Law And Practice, Marissa E. Cwik

Vanderbilt Journal of Transnational Law

The purpose of refugee law is to provide international protection for vulnerable people who are denied state protection. In fulfilling this purpose, the United Nations High Commissioner for Refugees (UNHCR) and asylum states have different legal foundations and implementing materials. When terminating refugee status and protection under the 1951 Refugee Convention Relating to the Status of Refugees, the obligations and legal authorities of UNHCR and asylum states differ. The UNHCR implementing statute allows the facilitation of voluntary repatriation when refugees can return in safety and with dignity. In contrast, host states are able to mandate repatriation when a change in …

Transitional Justice, Peace, And Prevention, Juan E. Mendez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Human Element: The Impact Of Regional Trade Agreements On The Human Rights And The Rule Of Law, Claudio Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Those Who Can't, Teach: What The Legal Career Of John Yoo Tells Us About Who Should Be Teaching Law, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor …

The Crime Of Genocide, Mark Drumbl

Mark A. Drumbl

No abstract provided.

Reimagining Child Soldiers, Mark Drumbl

Mark A. Drumbl

No abstract provided.

The Holocaust And Mass Atrocity: The Continuing Challenge For Decision, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

Review of the Albright-Cohen Report for the U.S. Institute of Peace and its critics. The article suggests intellectual strategies for sharpening and advancing the fundamental ideas and conclusions in the Albright-Cohen study. The article provides a review from novel perspectives of the Holocaust and stresses a better understanding of the role of emotion and sentiment in promoting or constraining genocidal outcomes.

La Convención Americana Sobre Derechos Humanos: Piedra Angular Del Derecho A La Vida Del No Nacido En Latinoamérica Y El Caribe [The American Convention On Human Rights: Cornerstone Of The Unborn’S Right To Life In Latin America And The Caribbean], Ligia M. De Jesus

Ligia De Jesus Castaldi

Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello

Adam Lamparello

No abstract provided.

Full Volume 86: The War In Iraq: A Legal Analysis (2010)

International Law Studies

No abstract provided.

Regime Change And The Restoration Of The Rule Of Law In Iraq, Raid Juhi Al-Saedi

International Law Studies

No abstract provided.

Detention Operations In Iraq: A View From The Ground, Brian J. Bill

International Law Studies

No abstract provided.

The Role Of The International Committee Of The Red Cross In Stability Operations, Laurent Colassis

International Law Studies

No abstract provided.

Introduction (Volume 86)

International Law Studies

No abstract provided.

Iraq And The "Fog Of Law", John F. Murphy

International Law Studies

No abstract provided.