Comparative and Foreign Law Commons^™

Human Rights In Indefinite Occupation: Palestine, Sari Bashi

Cardozo International & Comparative Law Review

The article examines the tension between international humanitarian law (IHL) and international human rights law (IHRL) in the context of prolonged occupations, specifically focusing on Israel's 53-year occupation of Palestinian territory. It proposes a framework that integrates human rights norms, such as nondiscrimination and progressive realization of economic and social rights, into IHL to enhance protections for civilians under occupation. The analysis highlights the limitations of IHL in addressing long-term occupations and advocates for a more robust approach that balances military necessity with the welfare of the occupied population, while also addressing the challenges of enforcing these standards in the …

Human Rights In The Six Arab States Of The Gulf Cooperation Council (Gcc): From Vision To Reality, Eleni Polymenopoulou

Cardozo International & Comparative Law Review

The article examines the evolving landscape of human rights in Gulf Cooperation Council (GCC) States, arguing that while there is a noticeable shift toward better human rights compliance, this progress is primarily driven by economic diversification and geopolitical strategies rather than a genuine embrace of international human rights norms. The analysis highlights that despite advancements in social and economic rights, significant challenges persist in areas such as civil liberties and media freedom. The article posits that human rights are increasingly viewed as essential for economic growth and development in the region, rather than merely as universal values.

Israeli Perfidy In The Disputed Occupied Palestinian Territories (Opt), Daniel Benoliel, Yohai Edery

Cardozo International & Comparative Law Review

This article considers Israel's controversial capture of wanted Palestinians in the disputed Occupied Palestinian Territories ("OPT') by resort to perfidy while feigning civilian status. That is given that Israel's call of choice for perfidy revolves almost entirely around capture as opposed to injuring or killing which Israel justly rejects as unlawful. While the prohibition of perfidy is accepted as customary international law, its practical definition and application in the OPT remain unsettled.

The article first considers the differences between the conduct of hostilities and law enforcement paradigms governing the disputed OPT. In certain situations that arise in armed conflicts, it …

Corruption Abroad: From Conflict To Co-Operation: A Comparison Of French And American Law And Practice, Fred Einbinder

Cardozo International & Comparative Law Review

The article examines the divergent approaches of France and the United States in combating corporate foreign corruption, highlighting their shared commitment to addressing the issue but differing legal frameworks and practices. While the U.S. employs participatory, lawyer-led systems with tools like plea bargaining and whistleblowing, France's inquisitorial, state-centric model has historically resisted such practices. The enactment of Sapin 2 in France marks a shift toward integrating American-style anti-corruption mechanisms, such as the Convention Judiciaire d'Intérêt Public (CJIP), while preserving core principles of French criminal law. The analysis underscores the challenges and opportunities of cross-border enforcement and the evolving cooperation between …

Return Of The King: Corruption Backsliding In America, Pedro Gerson

Cardozo International & Comparative Law Review

The United States appears to be going through a crisis of corruption. However, it is hard to know whether this is a matter of appearance or if the country is at risk of high levels of corruption making a comeback. The Article applies the equilibrium model of corruptionthe leading social science account of how corruption operates-to the current U.S. system, and shows that the United States may indeed be backsliding. The potential for corruption to creep back up is due to more than the political moment. Rather, it is the result ofpolitics combined with the relatively powerless institutional controls for …

Legal Exportation: The Case Of European Labor Law And Third Countries, Lior Zemer, Neta Nadiv

Cardozo International & Comparative Law Review

The frequency of change in industry and human mobility has brought new legal issues before labor courts. These changes constantly create a need to rethink and renew national labor law principles. In this process countries search for and import labor law principles from foreign legal systems. This Article focuses on Israeli labor law as a test case. Israeli courts considering labor law matters often turn to foreign legal systems in a manner that arguably influences the courts' interpretation and development of local labor laws. In practice, labor courts in Israel, when faced with a lack of appropriate domestic legislation, model …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 3, Iss. 2

Cardozo International & Comparative Law Review

No abstract provided.

Privacy In The Digital Age: Is Our Data Safe?, Ezra Wolfson

Cardozo International & Comparative Law Review

The note examines the Cambridge Analytica scandal and its implications for digital privacy, advocating for enhanced regulatory frameworks to protect user data. It draws parallels with the Enron scandal, suggesting that similar legislative responses, such as the proposed Social Media Transparency Act, are necessary to ensure corporate accountability and user protection in the digital age. The note also explores the potential adoption of GDPR-like regulations in the U.S. and discusses the concept of digital data as property, advocating for compensation for data breaches.

Addressing The Supreme Court’S ‘Constitutional Orphan’: Determining The Scope Of The Second Amendment In Public, Along With Its Need To Be Regulated, Eli Zlotowitz

Cardozo International & Comparative Law Review

No abstract provided.

Who Owns African Art? Envisioning A Legal Framework For The Restitution Of African Cultural Heritage, Charity Gates

Cardozo International & Comparative Law Review

The note advocates for the establishment of a legal framework to address the restitution of African cultural heritage, emphasizing the need to return looted art and artifacts from Western museums to their countries of origin. It highlights the historical injustices of colonial looting and the current legal barriers that hinder restitution, proposing solutions that balance cultural preservation with international cooperation.

Nyc V. Airbnb: New York City's Attempt To Regulate Home-Sharing Platforms And Airbnb's Attempt To Fight Back, Moshe Goldblatt

Cardozo International & Comparative Law Review

The note examines the legal battle between New York City (NYC) and Airbnb over the Homesharing Surveillance Ordinance, arguing that the ordinance violates constitutional rights and federal laws. It suggests that while NYC aims to regulate short-term rentals to address housing issues, the ordinance oversteps by compelling platforms to disclose private information without warrants, infringing on Fourth and First Amendment rights, and violating the Stored Communications Act. The note proposes a balanced approach allowing individuals to rent their homes while curbing commercial exploitation.

Paradigm Perplexities: Does International Humanitarian Law Or International Human Rights Law Govern The Gaza Border Protests Of 2018-2019, & What Are The Consequences? A Response To The Supreme Court’S Opinion In Yesh Din V. Idf Chief Of Staff (Hcj 3003/18), Anthony Carl

Cardozo International & Comparative Law Review

The note critically examines the Israeli Supreme Court's ruling on the 2018 Gaza border protests, arguing that the Court's classification of the conflict as an international armed conflict (IAC) is legally flawed. This classification allowed the Israel Defense Forces (IDF) to use live-fire policies under international humanitarian law (IHL), which the author contends is inappropriate for the context. The analysis asserts that the conflict should instead be treated as a non-international armed conflict (NIAC), with corresponding implications for the application of human rights law (IHRL). The Court's conflation of the law enforcement (LE) paradigm under IHL with the conduct of …

Healers Or Dealers: The Effect Of Doctors Committing Health Care Fraud On The Opioid Epidemic, Peri Novick

Cardozo International & Comparative Law Review

The note argues that doctors who commit healthcare fraud by improperly prescribing opioids for personal gain should be held criminally liable for patient deaths resulting from their actions. It emphasizes that these physicians, often operating as "pill mills," violate ethical and legal standards, contributing significantly to the opioid epidemic. The analysis advocates for stronger legal enforcement and accountability to address this issue effectively.

The Convention On The Elimination Of All Forms Of Discrimination Against Women: What Impact, If Any, Has It Had On Reproductive Health And Abortion Rights Around The World?, Casey Katz Pearlman

Cardozo International & Comparative Law Review

The note examines the impact of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on reproductive rights and abortion laws, with a focus on Ireland's 2018 repeal of the Eighth Amendment, which legalized abortion. While CEDAW did not directly cause the repeal, it contributed to a broader international framework influencing the decision. The note also compares Ireland's experience with the United States, where CEDAW has not been ratified, and highlights the ongoing challenges in advancing reproductive rights globally.

Dirty Business: Accountability For Harmful Pesticide Use In Brazil, Anna Goldstein

Cardozo International & Comparative Law Review

The note argues that the alarming rise in pesticide use in Brazil, particularly under President Jair Bolsonaro, has severe human health and environmental consequences. It emphasizes the need for a binding international legal framework to hold multinational corporations accountable for human rights abuses and environmental harm in their supply chains. Current voluntary frameworks and domestic laws, such as Brazil's Law 7802, are insufficient due to weak enforcement and lack of binding standards. The proposed UN Draft Treaty on Business and Human Rights is presented as a critical solution to address these gaps and ensure corporate accountability.

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Scholarly Articles in Law Reviews & Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

Silencing Xinjiang: The Chinese Government's Campaign Against The Uyghurs, Connor W. Dooley

Georgia Journal of International & Comparative Law

No abstract provided.

Pluralism, Democracy, And The Conflict Within: Challenging The State’S Narrative By Artistic Forms Of Protest, Alexandra V. Orlova

University of Miami International and Comparative Law Review

This article follows the Pussy Riot case from the 2012 trial decision to the 2018 challenge before the European Court of Human Rights (ECtHR). The case revolved around the “punk prayer” performed by three women in Christ the Saviour Cathedral in Moscow. While the case, which centered on violation of freedom of expression, may be framed as a matter of political speech vs. religious speech, it has broader implications. Pussy Riot’s performance and subsequent legal cases were about the ability of pluralism and dissent to counter the carefully constructed government narrative of “traditional values” and moral sovereignty. For democracy to …

Reforming Expansive Crime Control & Sentencing Legislation In An Era Of Mass Incarceration: A National And Cross-National Study, Rebecca Wasif

University of Miami International and Comparative Law Review

No abstract provided.

Popular Consultation And Referendum In The Making Of Contemporary Cuban Socialist Democracy Practice And Constitutional Theory, Larry Catá Backer, Flora Sapio

University of Miami International and Comparative Law Review

The language of democracy and democratic organization is usually spoken only in the vernacular of liberal democracy. Liberal democracy, mostly of western origin centers legitimacy of a political order on open, full, and free election for representatives, as well as a substantially unregulated civic space in which individuals and others can engage in political discourse. This essentially exogenous form of democratic organization has been increasingly challenged in the 21st century by an alternative model of endogenous democracy more compatible with states organized along Marxist Leninist principles. These emerging forms of endogenous democratic practices have been developed along two distinct lines, …

Their Cheese Has Holes But Their Gun Policy Doesn’T: A Review Of The Swiss Gun Policy Compared To The United States, Nikolaos Manuel Hernandez

University of Miami International and Comparative Law Review

“With the right to bear arms come a great responsibility to use caution and common sense on handgun purchases.” – Ronald Reagan

The left will say we need more gun control, the right will say it is our constitutional right to bear arms. Is one truly better than the other? Does the answer lie simply in gun education? This note will scrutinize the history of the Second Amendment to the United States Constitution as it relates to gun rights, gun laws, and gun violence. Next, this note will compare those rights, laws, and statistics to that of Switzerland. Switzerland’s gun …

The Shortcomings Of The “Public Charge” Doctrine: Why The Dhs Final Rule Should Be Abandoned And Why The United States Should Look To The Progressive Immigration Policies Of Sweden, Emily Demetree

University of Miami International and Comparative Law Review

The United States has a longstanding history of denying aliens admission based on a wide range of grounds that we have deemed to demonstrate the alien would be either dangerous to society or a financial burden on the state. “Self-sufficiency” has been a basic principle of US immigration law since the country’s earliest immigration statutes. It is the contention of the Department of Homeland Security that the availability of public benefits can create an incentive for immigration to the United States at a rate that cannot be financially supported by the government. Certain European countries, such as Sweden, see a …

Environmental Racism: How Governments Are Systematically Poisoning Indigenous Communities & The U.N.’S Role, Maia Dombey

University of Miami International and Comparative Law Review

This note examines the practice of toxic waste dumping on indigenous lands and how it fits within the broader concept of environmental racism. It further evaluates the international human rights framework and how the United Nations and other international bodies interact with this concept and provide means for protection against this illicit practice. Further, it examines the role of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes and how he, in his role as Special Rapporteur, can provide relief to indigenous communities suffering the effects of this …

Preparing Legal Frameworks For Environmental Disasters: Practical Considerations For Host States, Brooke Guven, Perrine Toledano, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Projects in the extractives sector carry risks of lasting, and sometimes irreversible, damage to the environment. Nonetheless, these projects are important for accelerating the economic development of host countries. Governments seeking to mitigate the adverse effects of foreign investment often face pushback from investors that are unwilling to change their practices in order to avert environmental disaster. This report sets forth certain steps that host-governments can take during the pre-investment, operation, and enforcement phases of extractives projects to provide financial and other protection in the context of environmental disasters associated with private sector investments.

Upon comparative review of five Case …

Implementing The United Nations Declaration On The Rights Of Indigenous Peoples In The United States: A Call To Action For Inspired Advocacy In Indian Country., Kristen Carpenter, Edyael Casaperalta, Danielle Lazore-Thompson

University of Colorado Law Review Forum

No abstract provided.

Letter From The Editor, Brad A. Rocheville

Notre Dame Journal of International & Comparative Law

No abstract provided.

Masthead

Notre Dame Journal of International & Comparative Law

No abstract provided.

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Notre Dame Journal of International & Comparative Law

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …