Comparative and Foreign Law Commons^™

Villegas Duran V. Arribada Beaumont: The Second Circuit Court's Interpretation Of Custody Rights Undermines The Purpose Of The Hague Convention On The Civil Aspects Of International Child Abduction, Emily Lynch

University of Miami Inter-American Law Review

No abstract provided.

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Comparative Law: Problems And Prospects, David Snyder

Scholarly Articles in Law Reviews & Journals

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

Special 301 And Access To Medicine In The Obama Administration, Sean Flynn

Scholarly Articles in Law Reviews & Journals

I. Introduction

This article examines the history and current use of the Special 301 program to restrict access to generic medicines in developing countries, specifically the 2009 and 2010 reports released under the Obama Administration. The news for access to medicines advocates is not good overall. Both reports continue the previous Administration’s policies of using Special 301 to promote Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) policies (“TRIPS-plus”) endangering access to medicines for millions of people worldwide. These policies violate not only the Obama Administration’s pledges to promote access to affordable medications in developing countries, but also U.S. commitments under …

Family Law Exceptionalism In Comparative Law, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Today, family law is, to a surprising degree, at the center of comparative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmonization proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex marriage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and antidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the …

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Scholarly Articles in Law Reviews & Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

Why Did China Reform Its Death Penalty?, Kandis Scott

Faculty Publications

China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.

The Environment And Trade Agreements: Should The Wto Become More Actively Involved, Mark S. Blodgett, Richard J. Hunter Jr.

UC Law SF International Law Review

The article first explores several basic arguments concerning whether the World Trade Organization (WTO) should require member states to adopt environmental standards as major components of international trade agreements. Section II provides a brief background on the debate surrounding environmental aspects of trade agreements and their relationship to development. Section III discusses the benefits and problems associated with enforcing environmental standards through the WTO. Section IV provides arguments for the incorporation of environmental standards in trade agreements through the WTO.

War Of Words Or A Regional Disaster: The (Il)Legality Of Israeli And Iranian Military Options, Behnam Gharagozli

UC Law SF International Law Review

As the intensity of the verbal exchanges between Israel and the Islamic Republic of Iran grows, so does the importance of analyzing the current Israeli-Iranian enmity. This note sets out to answer two questions: (1) Whether Israel has the right to attack Iran out of self-defense, and reciprocally; (2) whether Iran has the right to attack Israel out of self-defense. This paper will argue that while neither side may legally invoke the right of preemption or Article 51 self-defense, there is ample evidence to suggest that Iran has more of a reason to fear an Israeli conventional attack on its …

An Emerging Norma: The Duty Of States To Provide Reparations For Human Rights Violations By Non-State Actors, Cecily Rose

UC Law SF International Law Review

An international norm is emerging whereby States, in certain circumstances, have a legal duty to provide reparations for violations committed by non-State actors. The reparations programs designed by truth and reconciliation commissions form the most recent and striking evidence this norm's emergence. In particular, the governments of both Peru and Sierra Leone have adopted the recommendations made by their respective truth commissions regarding the provision of reparations to victims, regardless of the status of the perpetrators. While this emerging norm has a basis in certain international human rights treaties as well as in the jurisprudence of the Inter-American Court of …

Violent Against Women And Hiv Control In Uganda: A Paradox Of Protection, Kim Thuy Seelinger

UC Law SF International Law Review

An increasing amount of medical and human rights literature indicates that gender-based violence (GBV) can increase women's risk of HIV infection. Conversely, disclosed HIV-positive status can itself leave women vulnerable to marginalization and abuse.

However, the HIV and AIDS Prevention and Control Bill (HIV Control Bill) currently pending before the Ugandan Parliament presents a paradox of protection. Advocates fear its mandatory testing, disclosure, and criminalization provisions will (a) discourage women from accessing health services, and (b) render women who disclose their HIV positive status vulnerable to GBV, marginalization, and threats of prosecution.

This article presents a timely comparison of Uganda's …

Masculinity, Health, And Human Rights: A Sociocultural Framework, Shari L. Dworkin

UC Law SF International Law Review

This paper draws upon a sociocultural framework from masculinity studies and applies it to the case of men's health with the goal of providing the legal field with critical considerations that might shape a stronger future research agenda in the area of masculinity, rights, and health.

It is well recognized that gender inequality affects women, and that men enjoy numerous cultural and institutional privileges that negatively shape women's health outcome. These commonly understood drivers of women's poor health have led to crucial and much needed linkages between women's rights and health. However, men do not exclusively enjoy cultural and institutional …

Competitive And Fair: The Case For Exporting Stronger Extraterritorial Labor And Employment Protection, Carson Sprott

UC Law SF International Law Review

Increasingly, U.S. citizens are choosing or being asked to work in foreign countries for U.S. corporations or their direct subsidiaries. American laws often regulate expatriate employment status, but there is drastic inconsistency in the application of such laws. This paper discusses the limited application of U.S. labor and employment laws to U.S. corporations abroad to both American and foreign labor. This is juxtaposed against the stronger rights of alien workers here in the U.S. The analysis is specifically focused on the need for a coherent foreign employment law policy consistently applied by Congress. As a corollary, there is an economic …

Hiv-Based Claims For Protection In The U.S. And U.K., Ruly Tafzil

UC Law SF International Law Review

This year, millions will suffer persecution and death as a result of their HIV-positive status and AIDS-related illnesses. In the face of this morbid reality stands the promise of refuge offered by the international community, laid out in instruments such as the Convention Relating to the Status of Refugees and the European Convention on Human Rights (ECHR). This note compares and critiques the means by which HIV-positive persons may claim protection in the United States and the United Kingdom. In the United States, HIV-based claims for asylum were predominantly characterized as claims of persecution on account of a particular social …

The Law At War: Counterinsurgency Operations And The Use Of Indigenous Legal Institutions, Richard Morgan

UC Law SF International Law Review

Success in counterinsurgency campaigns requires the U.S. military to train, equip, and ultimately turn over responsibility for public safety to indigenous legal institutions. Doing so presents many challenges, as pragmatic concerns for operational security and use of intelligence as legal evidence must be reconciled with cultural differences and the weakness of indigenous legal institutions. This article argues, however, that such participation may be required under international law. Further, participation may help to legitimize counterinsurgency goals in the eyes of the local populace, and bring additional resources to military efforts. In order to realize such benefits, this article argues that military …

Operation Denucleunification: A Proposal For The Reunification And Denuclearization Of The Korean Peninsula, Eunice Lee

UC Law SF International Law Review

Since the division of the Korean peninsula into two countries, North and South Korea, the peninsula has been in the public eye primarily because of North Korea's nuclear program. Scholars have addressed ways to denuclearize the Korean peninsula, but to this day, North Korea remains a nuclear state. As North Korea continues to be isolated from the outside world, mystery surrounds the manner in which its government behaves. Should the U.S. respond to North Korea's perceived nuclear threat with force, or should diplomacy be used to achieve peace? Given the complexity of the nuclear dilemma, there is no simple solution …

Dolphins, Whales, And The Future Of The International Whaling Commission, Yui Nishi

UC Law SF International Law Review

Whaling has become a global controversy over the past few decades. In particular, countries such as Japan continue to hunt small cetaceans for both consumption and curbing purposes. Moreover, "small cetaceans" do not fall under the protection of the International Whaling Commission (hereafter "IWC"); therefore, the hunts are virtually unregulated. While the intensely emotional aspect is a significant part of the controversy, this note proposes a scientific, reason-based approach to this topic, which considers what solutions may be beneficial to all countries involved. Specifically, this note proposes that nations through international cooperation (1) conduct intensive scientific research in order to …

Human Trafficking: State Obligations To Protect Victims' Rights, The Current Framework And A New Due Diligence Standard, Viviana Waisman

UC Law SF International Law Review

Women who are trafficked for sexual exploitation are vulnerable to human rights violations in their country of origin, during their migration, and then in the destination country. This paper examines the existing legal protections available to trafficked women using Spain as an illustrative case study, and offers a new approach for defining State obligations to protect trafficking victims. The author advocates utilizing a due diligence standard framework that requires States to meet their international human rights obligations by granting legal residence to trafficking victims.

Judicial Protection Of The Right To Health In Colombia: From Social Demands To Individual Claims To Public Debates, Alicia Ely Yamin, Oscar Parra-Vera

UC Law SF International Law Review

Even in a region characterized by a number of countries with robust constitutions and judicial enforcement of social rights, Colombia stands out as a striking example of judicial activism regarding health rights. Nowhere has Colombia's judicialization of social demands been more striking than in the health domain. By 2008, it was clear that recourse to the courts had become an essential "escape valve" in a health system that was incapable of regulating itself; but the routinization of judicial intervention had created additional problems. In July of 2008, the Colombian Constitutional Court (the Court) issued a sweeping decision aimed at improving …

Google Adwords: Trademark Infringer Or Trade Liberalizer, Ashley Tan

Michigan Telecommunications & Technology Law Review

Google is the world's most preferred search engine, with an audience share of eighty percent of Internet users worldwide. With so many people browsing its search results, Google is a natural advertising vehicle, and it has exploited this quality to become one of the most profitable Internet companies in U.S. history. However, success has not come without controversy, and one of the most significant concerns Google AdWords, which displays keyword-triggered ads and sponsored links alongside non-sponsored search results. AdWords has come under attack in the United States and in the European Union ("EU") for its role in trademark infringement on …