Comparative and Foreign Law Commons^™

Confronting Transgressions Of Prior Military Regimes Towards A More Pragmatic Approach, Okechukwu Oko

Cardozo Journal of International and Comparative Law

The article argues that post-conflict African nations, particularly Nigeria, face a critical challenge in balancing justice for past regime transgressions with the need to maintain social stability and consolidate democracy. It contends that criminal prosecutions, while symbolically important, may disrupt social equilibrium and fail to address systemic issues stemming from authoritarian rule. Instead, the article advocates for a pragmatic approach, emphasizing the establishment of a Truth Commission as a middle ground between retribution and amnesty to facilitate reconciliation and advance democratic consolidation.

Solving The Greek Turkish Boundary Dispute, Scott Keefer

Cardozo Journal of International and Comparative Law

The article proposes a structured approach to resolving the Aegean Sea dispute between Greece and Turkey by advocating for the separation of issues, such as delimitation of the continental shelf through arbitration and direct negotiations for islet ownership. It emphasizes the importance of considering equitable principles and historical precedents to build trust and stability, suggesting that resolving the Aegean dispute independently could facilitate progress on the more contentious Cyprus issue.

"Democratizing" Globalization: Practicing The Policies Of Cultural Inclusion, Doris Estelle Long

Cardozo Journal of International and Comparative Law

The article examines the evolving relationship between culture and intellectual property in the context of globalization, arguing that the current international harmonization process under the TRIPS Agreement is coercive and undemocratic, disproportionately favoring developed countries. It advocates for a more inclusive and balanced approach to harmonization that considers the diverse needs of developing countries and ensures equitable protection of intellectual property while preserving cultural and public domain interests.

"When We Sit To Judge We Are Being Judged" The Israeli Gss Case, Ex Parte Pinochet And Domestic/ Global Deliberation, Amnon Reichman

Cardozo Journal of International and Comparative Law

Through analysis of two recent cases, one Israeli and one British, this article advances a deliberative paradigm with which to understand emerging global, meta-constitutional norms, such as the prohibition against torture, enforced through transnational adjudication. More specifically, this article suggests that deliberation between the three branches of government, central to the concept of constitutional democracy, is not confined to the boundaries of the nation-state; rather, the development of jus cogens norms coupled with universal jurisdiction in domestic courts ensures that such deliberation crosses national jurisdictions. This development allows, for example, for domestic courts to review, and be reviewed by, foreign …

Chinese Population Transfer In Tibet, John S. Hall

Cardozo Journal of International and Comparative Law

The note examines the impact of China's population transfer policies in Tibet since the 1950 invasion, arguing that these policies have led to the marginalization of Tibetans, significant environmental degradation, and human rights abuses. It explores various legal and diplomatic strategies to address these issues, including the Dalai Lama's Five Point Plan, human rights law, environmental law, and international negotiations.

The Role Of The United Nations And Recognition In Sovereignty Determinations: How Australia Breached Its International Obligations In Ratifying The Tmor Gap Treaty, Michael Shane French-Merril

Cardozo Journal of International and Comparative Law

The note examines the International Court of Justice's (ICJ) decision in the *Case Concerning East Timor*, highlighting the tension between factual sovereignty and legal principles in international law. It argues that the ICJ's dismissal of Portugal's case against Australia due to lack of jurisdiction underscored the limitations of international adjudication in resolving sovereignty disputes. The case raises critical questions about the recognition of sovereignty acquired through force, the role of erga omnes obligations, and the UN's role in territorial disputes.

Expressing Oneself Without A Constitution: The Israeli Story, Zaharah R. Markoe

Cardozo Journal of International and Comparative Law

The note examines the challenges to freedom of expression in Israel, highlighting the absence of a written constitution and the tension between security concerns, religious influences, and democratic values. It argues that while the High Court of Israel has played a crucial role in protecting civil liberties, the lack of constitutional protections leaves freedom of expression vulnerable, particularly in cases involving national security and religious sensibilities.

International Human Rights And Domestic Law Focusing On U.S. Law, With Some Reference To Israeli Law, Malvina Halberstam

Cardozo Journal of International and Comparative Law

The article, written by Malvina Halberstam, reflects on the 50th anniversaries of the Universal Declaration of Human Rights (UDHR) and the Israeli Supreme Court. It highlights the significance of the UDHR in establishing individual rights within international law and compares the protection of these rights in U.S. and Israeli domestic laws. While the U.S. Constitution provides robust protection for many UDHR rights, the article critiques the U.S. for its slow ratification of human rights treaties and the practice of adding reservations, particularly the declaration of treaties as non-self-executing. It also addresses concerns about restrictions on freedom of expression in Israel, …

Decriminalization Of Sodomy Under South Africa's 1996 Constitution: Implications For South African And U.S. Law, Heidi Joy Schmid

Cardozo Journal of International and Comparative Law

The note examines the landmark decision of the South African Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Another, which invalidated sodomy laws as unconstitutional. The court held that these laws violated rights to dignity, privacy, and equality under the South African Constitution of 1996. Judge Sachs emphasized the interconnectedness of privacy and equality rights, advocating for a broad interpretation of privacy and the importance of dignity in challenging discriminatory laws. The decision not only advanced sexual minority rights in South Africa but also highlighted broader implications for global jurisprudence, …

The Effectiveness Of The Comprehensive Test Ban Treaty On Nuclear Weapons Proliferation: A Review Of Nuclear Nonproliferation Treaties And The Impact Of The Indian And Pakistani Nuclear Tests On The Non-Proliferation Regime, Vejay Lalla

Cardozo Journal of International and Comparative Law

The Comprehensive Test Ban Treaty (CTBT) and the Nuclear Non-Proliferation Treaty (NPT) are insufficient to curb nuclear proliferation due to weaknesses in their enforcement mechanisms, loopholes in their provisions, and challenges posed by new nuclear states like India and Pakistan. The treaties fail to address critical issues such as arbitrary withdrawal clauses and inadequate verification systems, undermining their effectiveness in achieving global nuclear disarmament.

Extradition From Israel: The Samuel Sheinbein Case, Dina Maslow

Cardozo Journal of International and Comparative Law

The note examines the legal complexities surrounding the extradition case of Samuel Sheinbein, a dual citizen of Israel and the United States, who fled to Israel after being implicated in a murder in Maryland. The case highlights tensions between Israel's citizenship laws, which prohibit the extradition of its citizens, and international extradition norms. The Israeli Supreme Court ultimately ruled that Sheinbein could not be extradited due to his Israeli citizenship, prompting efforts to revise the extradition agreement between Israel and the United States to prevent similar outcomes in the future. The case underscores the challenges of balancing national sovereignty with …

Conclusion, Jonathan S. Greene

Cardozo Journal of International and Comparative Law

No abstract provided.

The Right To Her Embryos: An Analysis Of Nahmani V. Nahmani And Its Impact On Israeli In Vitro Fertilization Law, Janie Chen

Cardozo Journal of International and Comparative Law

The note examines the landmark 1996 Israeli Supreme Court decision in Nahmani v. Nahmani, which ruled that a woman’s right to parenthood outweighs her estranged husband’s objections to fatherhood in the context of frozen embryos created through IVF. The Court established a three-prong test to balance conflicting interests, legitimate expectations, and public policy, ultimately prioritizing the woman’s right to motherhood over the man’s right to refuse parenthood. The decision reflects broader tensions between reproductive rights, personal autonomy, and cultural-religious values, particularly the Jewish legal and ethical emphasis on procreation and the sanctity of life.

Female Genital Mutilation: Marked By Tradition, Isabel Coello

Cardozo Journal of International and Comparative Law

The article examines the pervasive issue of female genital mutilation (FGM), a practice deeply rooted in cultural and religious traditions, which perpetuates gender-based violence and discrimination. It highlights the failure of many governments to effectively implement international human rights treaties to eradicate FGM, despite its severe physical and psychological consequences. The analysis focuses on legal challenges, recent court cases in Spain and France, and the growing recognition of FGM as grounds for political asylum, emphasizing the need for stronger international and domestic policies to protect women's rights.

International Trade And Commerce: A Bridge For The Israelipalestinian Peace, Amir H. Khoury

Cardozo Journal of International and Comparative Law

The article examines the legal and economic framework governing trade between Israel and the Palestinian Authority (PA), emphasizing the critical role of trade in advancing the peace process. While the Declaration of Principles on Interim Self-Government Arrangements (DOP) and the Economic Protocol established foundational principles for economic cooperation, ambiguities in these agreements and practical challenges, such as border closures, hinder effective trade relations. The article argues that addressing these issues is essential to fostering economic interdependence and mutual benefit, which are key to sustaining peace and coexistence between Israelis and Palestinians.

Cannibal Democracies, Theocratic Secularism: The Turkish Version, Edip Yuksel

Cardozo Journal of International and Comparative Law

Symposium: Cannibal Democracies: Human Rights and Democracy in Turkey

The article critically examines Turkey's democratic framework, arguing that its version of democracy diverges significantly from Western models due to its unique interpretation of secularism and the disproportionate influence of the military and political elite. The analysis highlights how the Turkish Constitutional Court's frequent banning of political parties, particularly the Welfare Party in 1998, undermines democratic processes and often leads to authoritarian governance. The article contends that Turkey's Constitution, drafted under military supervision, lacks political legitimacy and contains provisions that restrict individual and group rights, perpetuating a system of oligarchy and …

Implementing The Oslo Accords, Edward Bennett Miller

Cardozo Journal of International and Comparative Law

The article argues that a stable and lasting peace between Israel and the Palestinian Authority (PA) cannot be achieved without a shared commitment to fundamental values such as freedom, democracy, and the rule of law. It critiques the current peace process for neglecting these principles and instead prioritizing economic growth and political expediency. The analysis emphasizes that the PA's failure to establish a functioning judiciary, its disregard for human rights, and its authoritarian governance undermine the prospects for long-term stability and peace in the region. The article advocates for a new approach to the peace process that prioritizes democratization and …

Cabining Freedom: A Comparative Study Of Lesbian And Gay Rights In The United States And Canada, Credence Fogo

Cardozo Journal of International and Comparative Law

The article examines the divergent approaches of Canada and the United States in addressing gay and lesbian equality, highlighting how their differing legal frameworks and cultural values shape the protection of rights. While Canada, under the Canadian Charter of Rights and Freedoms and its Section 1 balancing test, has expanded relationship rights for sexual minorities, the U.S. has taken a more fragmented approach, emphasizing individual liberties over social rights. The analysis underscores the tension between Canada's communitarianism and the U.S.'s individualistic legal culture in advancing LGBTQ+ rights.

Notes On Constitutionalism For A 21st-Century Russian President, Dana Dallas Atchison

Cardozo Journal of International and Comparative Law

Are short-term political interests compromising prospects for a constitutional society in Russia? In Part I, this paper first considers the elements that contribute to constitutionalism. These include a constitution, democracy, public participation, the rule of law, an open society, a history of constitutionalism, public support for a constitutional order, importance of the individual, and an independent judiciary. Part II analyzes these themes against provisions in Russia's new Constitution and concludes that many articles have been compromised by Boris Yeltsin's personal political interests.

Part III appraises practical considerations that impact constitutional elements such as the public's expectations and concerns. Part III …

Controlling Corporate Agency Costs: A United States-Israeli Comparative View, Zohar Goshen

Cardozo Journal of International and Comparative Law

The article examines the differing approaches to addressing corporate agency costs in the United States and Israel, highlighting how each country's legal frameworks and market mechanisms respond to distinct agency problems. In the U.S., the "management problem" arises from the separation of ownership and control, whereas Israel faces the "control problem" due to the concentration of ownership. The analysis underscores how the prevalence of these issues influences the adoption of voluntary vs. mandatory solutions.

Being Female Can Be Fatal: An Examination Of India's Ban On Pre-Natal Gender Testing, Andrea Krugman

Cardozo Journal of International and Comparative Law

The note examines India's 1996 Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, which aims to address the severe gender imbalance caused by prenatal sex selection and female feticide. Despite the Act's intentions, its effectiveness is hindered by deep-rooted cultural preferences for male children, economic pressures, and insufficient enforcement mechanisms. The analysis highlights the need for broader societal changes, including education and economic empowerment for women, to effectively combat gender discrimination.

The Market For Loyalties And The Uses Of Comparative Media Law, Monroe E. Price

Cardozo Journal of International and Comparative Law

The article posits that media regulation is a tool used by governments to maintain power structures through the control of the "market for loyalties." This concept suggests that laws are employed to manage information and cultural narratives, ensuring that those in power retain their influence by shaping public allegiance. The author illustrates this through examples from various countries, demonstrating how each nation tailors its media laws to fit its unique political and cultural contexts.

History Of Indian Broadcasting Reform, Sevanti Ninan

Cardozo Journal of International and Comparative Law

The article explores the historical evolution of broadcasting reform in India, highlighting the tension between state control and the constitutional guarantee of freedom of speech under Article 19. It traces the development from colonial-era laws like the Indian Telegraph Act of 1885 to modern legislative and judicial efforts to balance public interest, cultural preservation, and technological advancements. The analysis underscores the recurring themes of autonomy for state media, competition from private and foreign broadcasters, and the need for regulatory frameworks to address these challenges.

Introduction, Monroe E. Price, Stefaan G. Verhulst

Cardozo Journal of International and Comparative Law

The idea for this book came from the important and interesting debate in India during 1997 on the nature of an appropriate media law for the future of its society. The operative law primarily had been the 1895 Indian Telegraph Act and, both as a matter of a felt need for modem regulation and as a symbol of India's status as a modem democracy, the courts, the Government, the media sector, and the Parliament were all persuaded of the need for change.

Cultural Chauvinism In Comparative Law, John H. Langbein

Cardozo Journal of International and Comparative Law

The article critiques the use of cultural stereotypes to dismiss the potential of adopting superior legal procedures from other countries, specifically targeting Oscar Chase's argument that American cultural traits prevent the adoption of German civil procedure reforms. It argues that such cultural chauvinism obscures the inefficiencies and injustices in the American adversary system and that procedural improvements from comparative law should not be dismissed based on cultural differences.

Family Law Of The Two Chinas: A Comparative Look At The Rights Of Married Women In The People's Republic Of China And The Republic Of China, Janice A. Lee

Cardozo Journal of International and Comparative Law

The note examines the rights of married women in the People's Republic of China (PRC) and Taiwan, highlighting how traditional Confucian values continue to influence family law and practice despite legal reforms aimed at promoting gender equality. It argues that while both countries have enacted progressive laws, societal attitudes and enforcement mechanisms often undermine these legal advancements, perpetuating women's subordinate status.

Finding The Truth In An American Criminal Trial: Some Observations, Frank J. Macchiarola

Cardozo Journal of International and Comparative Law

The article critiques the American adversarial criminal trial system, arguing that its focus on procedure and individual rights often hinders the pursuit of truth. While the system is deeply rooted in American cultural values, such as distrust of government and a commitment to individual liberties, its emphasis on adversarial contest rather than truth-seeking leads to inefficiencies and public dissatisfaction. The author highlights the tension between the system's theoretical commitment to justice and its practical limitations, particularly as illustrated by high-profile cases like the O.J. Simpson trial.

America Tries To Come To Terms With Terrorism: The United States Anti-Terrorism And Effective Death Penalty Act Of 1996 V. British Anti-Terrorism Law And International Response, Roberta Smith

Cardozo Journal of International and Comparative Law

The note examines the legal and policy responses to terrorism, focusing on the tension between combating terrorism effectively and safeguarding civil liberties. It critiques the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and comparable international measures, arguing that while these laws aim to address the growing threat of terrorism, they risk infringing on constitutional rights and international cooperation. The analysis highlights the challenges of balancing security concerns with democratic values and the need for coordinated global strategies to counter terrorism.

Legal Processes And National Culture, Oscar G. Chase

Cardozo Journal of International and Comparative Law

The article examines the relationship between national culture and legal processes, arguing that cultural differences significantly impact the feasibility of adopting foreign legal procedures. It focuses on the suggestion to adopt German civil litigation rules in the U.S., asserting that cultural barriers, particularly regarding authority and individualism, make such adoption problematic. The author contends that understanding these cultural dimensions is crucial for evaluating legal reforms.

Playing The Culture Card In Resisting Cross-Jurisdictional Transplants: A Comment On "Legal Processes And National Culture", John D. Jackson

Cardozo Journal of International and Comparative Law

The article critiques Oscar Chase's argument that cultural differences between nations, particularly Germany and the United States, pose formidable barriers to transplanting legal procedures from one jurisdiction to another. While acknowledging the importance of culture in shaping legal institutions, the analysis suggests that the influence of national culture on legal processes is more nuanced and less deterministic than Chase implies. It argues that legal systems are capable of change and adaptation, and that globalization and convergence of legal traditions may mitigate the predicted cultural misfit.