Comparative and Foreign Law Commons^™

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

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

Abstract forthcoming

Fairness At A Price: Protecting The Integrity Of Athletic Competitions At The Expense Of Female Athletes, Annie Bach Yen Nguyen

Notre Dame Journal of International & Comparative Law

Ever since women were allowed to compete in the Olympics, they have been subjected to some form of gender verification. Initially, the International Olympic Committee (IOC) and International Amateur Athletic Federation (IAAF) required female athletes to present certificates from their doctors confirming that they were in fact women. In 1966, the IOC and the IAAF “decided they couldn’t trust individual nations to certify femininity, and instead implemented a mandatory genital check of every woman competing at international games.” This process was dubbed the “nude parades”. In response to the overwhelming disapproval of such examination, the IOC and IAAF began implementing …

Forced Evictions, Homelessness, And Destruction: Summer "Games"? Olympic Violations Of The Right To Adequate Housing In Rio De Janeiro, Leigha C. Crout

Notre Dame Journal of International & Comparative Law

This article details the violations of the right to housing that took place in preparation for the 2016 Summer Olympics held in Rio de Janeiro, Brazil. Analyzed under the international, regional, and domestic instruments that enumerate this guarantee, including the International Covenant on Economic, Social, and Cultural Rights, the Charter and the Declaration of the Rights and Duties of the Organization of American States, and the Constitution of Brazil, the aim of this work is to draw attention to the systematic deprivation of one of the most central human rights in the name of the Games.

Public And Private Authority In A Global Setting: The Example Of Sovereign Debt Restructuring, Matthias Goldmann

Indiana Journal of Global Legal Studies

This article argues that the public-private distinction is essential for safeguarding individual autonomy and democracy. As the article shows at the example of sovereign debt restructuring, global governance has blurred the distinction between public and private actors, instruments, and processes, and this causes immediate risks for human rights and democracy. This raises the question how the public-private distinction can be maintained under the structural conditions of global governance. For that purpose, the article ventures to propose a definition of publicness for global governance inspired by discourse theory. It argues that whenever a community, defined by the prevalence of communicative action, …

"Dignity In Living And In Dying": The Henry H. H. Remak Memorial Lecture, George P. Smith

Indiana Journal of Global Legal Studies

This Article derives from the Henry H.H. Remak Memorial Lecture given at the Maurer School of Law, Indiana University on March 22, 2017.

The African Court And Human Rights: What Lies Ahead For The Merged Court?, Florence Shu-Acquaye

Faculty Scholarship

This paper examines the African Court of People’s and Human Rights, the historical evolution, criticism, and explores issues that the Court may deal with as it assumes its new and envisioned role and form as the Merged Court.

The Complexities Of Human Rights And Constitutional Reform In The United Kingdom; Brexit And A Delayed Bill Of Rights: Informing (On) The Process, Katie Boyle, Leanne Cochrane

Northwestern Journal of Human Rights

The United Kingdom’s politicised and contested human rights framework has come under increasing pressure during recent periods of constitutional and political instability. The UK 2016 referendum on membership of the European Union, the delayed repeal of the Human Rights Act 1998 and the proposals to enact a British Bill of Rights have all shaped the discourse at the national level around decisions to retain rights (or not) rather than progressively improve the human rights structure. The European Union and Council of Europe human rights frameworks act as important pillars of human rights and democracy under the UK constitution and each …

Talking Foreign Policy: Jesner V. Arab Bank, Milena Sterio, Thomas Buergenthal, Carsten Stahn, Avidan Cover, Timothy Webster, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Judge Thomas Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then …

Local Human Rights Lawyering, Lauren Bartlett

All Faculty Scholarship

International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.

The Peace Vs. Justice Puzzle And The Syrian Crisis, Paul R. Williams, Lisa K. Dicker, C. Danae Paterson

Faculty Publications

(Excerpt)

Those involved in peace negotiations often face the dilemma of balancing demands for justice with the imperative of stopping the conflict as quickly as possible. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of death by torture—the peace versus justice puzzle is a living dilemma with which those involved in the peace process grapple with on a daily basis.

Is it morally permissible to allow conflict (and the attendant human suffering) to continue, …

Inaccessible Apexes: Comparing Access To Regional Human Rights Courts And Commissions In Europe, The Americas, And Africa Symposium: Comparing Regional Human Rights Regimes, Claudia Martin, Francoise Hampson, Frans Vilijoen

Scholarly Articles in Law Reviews & Journals

The three well-established regional human rights systems (in Europe, the Americas, and Africa) aim to provide access to individuals to a decision and remedy based on the violation of human rights in the founding treaties. In this article, the notion of the "dispute pyramid," developed in sociolegal studies, generally, is adjusted to describe and help us better understand regional access. Access differs considerably across the three systems, and its major stumbling blocks present themselves at different stages. In the European system, most cases are dismissed at the admissibility phase. In the Inter-American system, most cases are weeded out at the …

Access To Knowledge And The Global Abortion Policies Database, Joanna Erdman, Brooke Johnson

Articles, Book Chapters, & Popular Press

Research shows that women, healthcare providers, and even policy makers worldwide have limited or inaccurate knowledge of the abortion law and policies in their country. These knowledge gaps sometimes stem from the vague and broad terms of the law, which breed uncertainty and even conflict when unaccompanied by accessible regulation or guidelines. Inconsistency across national law and policy further impedes safe and evidence‐based practice. This lack of transparency creates a crisis of accountability. Those seeking care cannot know their legal entitlements, service providers cannot practice with legal protection, and governments can escape legal responsibility for the adverse effects of their …

Urbanization, Land Rights And Development: A Case Study Of Waterfront Communities In Lagos, Nigeria., Gideon Olaniyi Omoniyi

Master's Theses

The aim of this study is to examine the root causes of forced evictions and displacement through the current urbanization process in Lagos, Nigeria. My particular attention is devoted to the legal complexities and how ethnolinguistic identities shape land laws, influence land tenure, and construct urban citizenship. Through this process, competing claims to land ownership provide fertile ground for forced evictions and displacement. Existing scholars suggest that poor urban residents lack rights to stay in their neighborhoods, while a powerful capitalist class has emerged and dispossessed the poor from their lands. Yet these existing approaches derived from the neoclassical and …

Safeguarding The Future Of Bangladeshi Children: The Need For A Comprehensive National Educational System, Samantha A. Barach

Brooklyn Journal of International Law

The United Nations Convention on the Rights of the Child (CRC)—the human rights treaty ratified by the most States Parties—is binding international law which enumerates the rights guaranteed to all children worldwide. Despite the widespread ratification of the CRC, many countries lack the proper legislation and agencies to ensure that these rights are afforded to all children. One such country is Bangladesh. A relatively new country, Bangladesh gained its independence in 1971 and was one of the first twenty countries to ratify the CRC. Notwithstanding this eagerness to promote children’s rights, Bangladeshi children suffer from a high level of abuse …

The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law

As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

Piloting Personhood: Reflections From The First Year Of A Supported Decision-Making Project, Kristin Booth Glen

Cardozo Law Review

The amazing Symposium on Personhood and Civic Engagement by People with Disabilities included a variety of perspectives: legal, cultural, historical, philosophical, and educational, including a panel on "Legal Barriers to Personhood" from which this article was derived. Despite legal analysis, theory, and even description, there was little "in the weeds" discussion of how personhood can actually be protected and preserved for persons with intellectual and developmental disabilities (I/DD).1 Locating personhood within the human right of legal capacity, and positing guardianship in diametric opposition, this Article attempts to describe some of the lessons I have learned in the first year of …

The Fight For Personhood, Legal Capacity, And Equal Recognition Under Law For People With Disabilities In Israel And Beyond, Arlene S. Kanter, Yotam Tolub

Cardozo Law Review

When Rachel contacted Bizchut, the Israel Center for Human Rights of People with Disabilities, she was in the hospital in the final stages of terminal cancer. At seventy years old, she had no family, her condition was deteriorating, she had begun to use a wheelchair, and she was in a great deal of pain. In the past, she had been diagnosed with paranoid schizophrenia. Her doctors refused to release her from the hospital without the appointment of a guardian. Rachel had no guardian and she did not want one. Rachel was an intelligent and realistic woman who knew that if …

Mass Displacement Of Destitute People: A Trigger For Non-Refoulement Protection?, Bernardo De Souza Dantas Fico, Leticia Machado Haertel

Biennial Conference: The Social Practice of Human Rights

This paper focuses on two problems around the mass displacement of people in extreme poverty: the characterization of such people as refugees and the application of the non-refoulement principle to mass displacements.

Extreme poverty is causal to grave human rights violations such as deprivation of water, of food, and of an adequate standard of living. These circumstances may reach a degree in which life in a country is unbearable — forcing people to move in order to enhance their likelihood of survival.

The classic understanding of the non-refoulement obligation, as enshrined in the 1951 Refugee Convention, forbids states from returning …

The Definition Of Slave Labor For Criminal Enforcement And The Experience Of Adjudication: The Case Of Brazil, Carlos H. B. Haddad

Michigan Journal of International Law

The paper examines the intersections and differences between “slave labor” as used in the Brazilian domestic sphere and “slave labor” as applied to international law. The former shows an approach centered on criminal law, as opposed to human rights law. This paper explains why degrading working conditions and debilitating workdays should continue to be prohibited and punished. It also compares the sanctions of the Brazilian Criminal Code with those of similar crimes in other jurisdictions. It concludes with a discussion of the current bill proposed by Senator José Sarney, which would replace the current definition with one that more closely …

Oliari And The European Court Of Human Rights: Where The Court Failed, Vito John Marzano

Pace International Law Review

The European Court of Human Rights revisited the issue of legal recognition for same-sex partnerships on July 21, 2015 when it decided Oliari and Others v. Italy. This Note explores the implications of that decision and what it may mean for same-sex couples within Italy and throughout the Council of Europe. Through a careful analysis of the decision, this Note concludes that Oliari provides slight yet important movement on the issue of a Contracting State’s obligation to afford legal recognition for same-sex partnerships, but a practical implementation of the Court’s holding likely will yield little additional movement in more conservative …

The Published Works Of Sir Nigel Rodley, James W. Hart

Law Librarian Articles and Other Publications

This work is a comprehensive bibliography of the writings of Sir Nigel Rodley that was compiled for the Urban Morgan Human Rights Conference Honoring Sir Nigel Rodley that was held at the University of Cincinnati College of Law on October 28 and 29, 2017. It lists the books that he was the sole author of, books that he edited either solely or with others, chapters in books edited by others, journal articles, conference papers, book reviews, reports issued as part of his UN work, two manuscripts, introductions, forwards, comments, tributes, and obituaries. It does not list decisions of the UN …

Guantanamo Bay - Why Would The United States Ever Actually Prosecute?, Benjamin Wine

Cardozo International & Comparative Law Review

The note examines the legal and ethical dilemmas surrounding the detention of individuals at Guantanamo Bay, focusing on the U.S. government's reluctance to prosecute many detainees despite their prolonged detention. It argues that the indefinite detention, often without formal charges, and the use of controversial interrogation methods violate both domestic and international laws. The analysis highlights the lack of recognition of Guantanamo Bay as a competent tribunal by other nations and explores potential solutions to address these issues.

The Silencing Of Human Rights Activists In Egypt Post-Revolution, Jennifer Helmy

University of Miami International and Comparative Law Review

No abstract provided.

Labor Violations In Mexico: Can New Trade Agreements Effectuate Change?, Nicole Downey Moss

University of Miami Inter-American Law Review

Child labor and forced labor remain pervasive problems on Mexican farms. Millions of workers on these farms are forced to work and live in inhumane conditions, only to leave the season’s harvest just as poor as they were before. To date, human rights and labor treaties and agreements that Mexico is party to have failed to protect workers. In early 2016, however, negotiations on the Trans-Pacific Partnership (“TPP”) concluded and, if ratified, the party-countries claim that the TPP will hold Mexico to higher standards than previously faced because the TPP will link labor rights with trade law. However, this was …

When Does Cultural Satire Cross The Line In The Global Human Rights Regime?: The Charlie Hebdo Controversy And Its Implication For Creating A New Paradigm To Assess The Bounds Of Freedom Of Expression, Kwanghyuk Yoo

Brooklyn Journal of International Law

Social justice does not exist in a vacuum. Social justice deters human rights policies from crossing the line. Thus, the principle of justice counterbalances the evils of the laissez-faire human rights philosophy when society lacks an appropriate form of legal or regulatory framework for legitimate restraints on human rights. Moreover, well-ordered just society does not allow human rights to be abused or curtailed beyond the level necessary to safeguard superior social norms or national interests. As such, human rights are subject to relative protection while they receive universal respect across the world. From a semantic standpoint, two ambivalent natures of …

Trabalho Escravo: L'Esclavage Contemporain Au Brésil, Rebecca J. Scott, Jean Hebrard

Articles

"Le gouvernement brésilien a engagé, il y a quelques années, une ambitieuse campagne de lutte contre l’exploitation de travailleurs dans une condition « analogue » à celle d’esclave. Cette politique répondait à des campagnes de protestation réitérées et à des pressions internationales, mais elle se formula en référence à une histoire nationale dont l’esclavage était inséparable. Les révélations de la Commission pastorale de la terre, les plaintes déposées auprès de la Cour interaméricaine des droits de l’homme, les actions de nombreux organismes gouvernementaux ou non-gouvernementaux ont certainement été déterminantes dans les choix qui ont alors été faits. Toutefois, tout au …

The Evolution Of Pattern Of Criminalizing The Unknown Crime Of Rape In Global Scale, Sahar Jalili

SJD Dissertations

Rape is a crime globally condemned, yet it's one of the most controversial crimes at the time. What this research did was to gather the information of countries' rape laws in their penal codes from all over the world and create a pattern of how countries on a global scale criminalize rape and how far they have changed in the past century. The goal was to produce a rape criminalization map of the world to show which elements are playing the main factors and which factors are missing, how close countries define rape and how different their reactions are.

The …

Transitional Justice, The Role Of The Judiciary And Rupture Of Democracy In Brazil In 2016, Jose Carlos Moreira Da Silva Filho

Distinguished Speaker Series

In comparison to the other countries in Latin America that suffered under civilian-military national security dictatorships in the second half of the 20th century, Brazil presented two peculiarities that had an enormous influence on the characteristics of the democratic regime that began in 1988: its amnesty law was enacted while the authoritarian regime was still in power, and throughout the period of the dictatorship, it promoted a broad and intensive process of judicialization of the political repression. I believe these aspects will influence and interact in a notable way with the new coup d’état process that began in Brazil in …

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …