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Richard Wilson
No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of prisoners, both accused and convicted, between countries. Finally, the chapter will conclude with an analysis of the impacts on the capital sentencing of foreign nationals in the U.S. courts, particularly as a result of the U.S. executive branch and courts’ efforts at compliance with the judgment of the International Court of Justice in the Avena case, involving 51 Mexican nationals on death row in the U.S.
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Macarena Sáez
This book explores the tension between same-sex marriage and traditional structures of family law. It moves from countries that have recognized same-sex marriage and are now adjusting to a new family law structure, to countries where same-sex marriage is viewed as a foreign institution, only possible as an academic theoretical conversation,. The book covers analyses of countries as diverse as Turkey, Israel, Jamaica, Colombia, Mexico, Spain, and the United States. It is divided in chapters that look at each country’s individual experience in recognizing same-sex couples in general, and same-sex marriage in particular. From systems that still deny the existence of same-sex emotional relations, to systems that have reinforced marriage through the recognition of same-sex marriage, we see countries in transition, dealing with a tension between rigid concepts of family and flexible family structures that allow for protection of families outside the realm of the heterosexual married family. There are some common elements among countries that have recognized same-sex marriage or that are in the process of recognition. At the same time, countries that deny the legal existence of same-sex couples and their families also share common elements.
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Macarena Sáez
This Chapter gives a brief analysis of the status of same-sex marriage in the United States prior to the US Supreme Court decisions of 2013 and the current status of litigation and political reforms triggered, in part by the court decisions. It shows that marriage is a central institution in the country’s rationale of family law in ways that separate it from other Western countries that have allowed same-sex marriage.
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Robert Tsai
This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) are characterized by a receptivity to foreign and international law. A commitment to legal pluralism can be especially pronounced in countries seeking to escape a colonial past. While a newfound preference for increased formality in using foreign models can be detected, experts disagree whether the quality and frequency of actual usage has improved. Additionally, there may be certain undesirable consequences of heightened proceduralism and professionalism. Attention to the role of particular institutions, bureaucratic innovations, and lawmakers' motivations in borrowing (or not borrowing) from foreign law would be most fruitful for research going forward.
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Richard Wilson
This article argues that United Nations human rights principles and new developments in the Inter-American Commission on Human Rights and the European Court of Human Rights suggest a route to provide effective reparation through restoration of historical memory and dignity for victims of the Armenian Genocide.
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Robert K. Goldman
Chapter 6 of Research Handbook on Human Rights and Humanitarian Law
In the wake of the September 11, 2001 attacks in the United States, the US, with the assistance of its coalition partners – all parties to various human rights instruments – initiated the so-called ‘war on terror’ by invading Afghanistan, where their armed forces killed or captured hundreds of ‘terrorist suspects’. Some of those detained were taken to the US military facility at Guantanamo Bay, Cuba, while others have languished in US custody in Afghanistan. These actions raise the question whether a State is bound by its human rights obligations when its agents operate outside of national territory. And, if so, how do those obligations interrelate with the State’s other obligations under international humanitarian law when its counter-terrorism operations coincide with situations of armed conflict.
This chapter addresses these questions. In particular, it examines the extraterritorial reach of two fundamental human rights during two situations recognized in international law. These rights are the right to life and the right to liberty and the related procedural safeguard of habeas corpus. The two situations examined are: (1) international armed conflicts, including occupation; and (2) non-international armed conflicts. The paper surveys the jurisprudence on the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights (American Convention) and American Declaration of the Rights and Duties of Man (American Declaration), and the European Convention on Human Rights (European Convention), and the extent to which rights in these instruments can be derogated from. It also examines how the treaty bodies supervising these instruments view the relationship between international human rights law (HRL) and international humanitarian law (IHL) in situations of armed conflict. Relevant decisions of the International Court of Justice are also referenced in this connection. The chapter also identifies certain gaps in legal protection.
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Daniel Bradlow
The thesis of this chapter is that, despite all the governance changes that the IFIs have undergone, they still do not have adequate governance arrangements and will need to undergo further reform if they are to perform their mandates effectively. In order to establish this thesis, this chapter is divided into four parts. First, it describes the reforms the IFIs have agreed to and have implemented. Second, it sets out some benchmarks against which these governance reforms can be measured. Third, it assesses the adequacy of the reforms undertaken based on the benchmarks identified in the second section. The final section is a conclusion.
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Janie Chuang
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Anna Gelpern
Financial institutions and governments the world over have been locked in mutual dependence since long before the crisis that began in 2007. Postcrisis reforms will not rid banks and governments of one another; at best, they may renegotiate the terms of engagement. This essay uses case studies from the Europe and the Americas to explore the implications of two enduring links between financial institutions and governments: first, the formal and informal public insurance that banks and a growing number of other firms enjoy in exchange for providing critical public services; second, the powerful economic, political and regulatory incentives for financial firms to hold government debt. As a result, an increase in government debt is a common by-product of large-scale bank failure, and large-scale bank failure is a common by-product of government debt default. Such links complicate loss allocation and crisis response. The essay concludes that no sovereign bankruptcy or financial resolution regime can be effective without accounting for the links between governments and financial firms.
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David B. Hunter
Para hacer frente al daño medioambiental, que no reconoce fronteras, aparece el Derecho Internacional del Medio Ambiente como una nueva rama del derecho Internacional. Para el Perú es bastante importante trabajar en este tema ya que "basta recordar que de acuerdo al prestigioso Tyndall Centre, think tank del Reino Unido sobre el Cambio Climático, nuestro país sería el tercero en sufrir los graves estragos del calentamiento global luego de Bangladesh y Honduras", escribió Vera.
To address the environmental damage, which does not recognize borders, international law appears Environment as a new branch of international law. For Peru is very important to work on this issue as "just remember that according to the prestigious Tyndall Centre, UK think tank on climate change, our country would be the third to suffer the ravages of global warming serious after Bangladesh and Honduras "wrote Vera.
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Richard J. Wilson
Clinical legal education adopted by law schools outside of the United States—as pedagogical method, as academic structure, indeed, as concept itself—is largely an export from the United States, wherein lie its roots. Clinical programs arose from social and protest movements of the 1960s and ‘70s. During that time, law school clinics received an enormous boost from the Ford Foundation-funded Council on Legal Education and Professional Responsibility (CLEPR), which served to spread the gospel and deepen the presence of clinics in US law schools. The first law and development movement came into being in parallel with the growth of clinics in the United States during those decades. The movement exported US legal education models and methods to other countries, and eventually fell prey to a devastating critique that brought it to a screeching halt, including some argue appropriately, all legal education innovations exported from the United States. This chapter attempts to determine the salience of this critique today, particularly as legal imperialism might be strongly associated with legal education methods in the United States. The author concludes that the exportation of clinical legal education cannot today be called legal imperialism and further argues that this critique is as much a function of American hubris as it is real. He next examines legal imperialism through typology, and explores the historical context of the contention. He finally examines the central premises of the legal imperialism critique as it relates to both the sweeping forced assimilation of entire legal cultures, and the narrow issue of clinical legal education.
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From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance Padideh Ala'i
The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision dismissed by GATT panels as 'subsidiary' to the other 'substantive' provisions of the GATT. Since the creation of the WTO, Article X has emerged from obscurity, and is now viewed as creating obligations of 'fundamental importance,' such as transparency and due process. In addition, there has been an exponential increase in the number of cases asserting Article X claims before WTO panels and the Appellate Body. The resulting treatment of such claims by the WTO dispute settlement bodies reflects both the emerging role of the WTO as a supranational administrative body and the continuing discomfort of panels and the Appellate Body with applying good governance obligations.
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Daniel D. Bradlow
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Daniel Bradlow and David Hunter
This is the conclusion to the edited volume, International Financial Institutions and International Law. After a brief overview of the key points made in the volume, the authors offer some observations on the role that international law plays and should play in the functioning of international financial institutions and some suggestions for future research on the topic.
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Daniel Bradlow and David Hunter
This is the introduction to an edited volume of papers on International Financial Institutions and International Law. The introduction provides an explanation of the editors motivation for undertaking this book project and an overview of the chapters in the book.
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Michael W. Carroll
This comment responds to Professors Bergstrom and Rubinfeld’s chapter, Alternative Economic Designs for Academic Publishing. Their principal argument is that most prices for academic journals are inefficiently high and that open access accomplished by authors placing copies of their articles on the open Internet is one means of creating competition to improve efficiency in this knowledge market. Carroll applauds and provides supplementary support for both the normative and prescriptive elements of this claim. However, from the perspective of copyright law, which is at the root of these inefficiencies, he argues that they do not go far enough. The primary argument for open access is not to improve the efficiency of journal pricing. Instead, scholarly authors must use their copyrights to advance the normative goals of copyright law – to promote the progress of science and useful arts. In the digital environment, that goal is best promoted through open access to the scholarly literature even if journal prices were otherwise set at the efficient level. Authors of these articles do not need the lure of exclusive rights to perform research or to publish their results, and free online access serves to benefit multiple audiences.
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Mary L. Clark
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Christine Haight Farley
Law’s relations to art--to its creation, its production, and dissemination, its restriction as well as to commercial and contractual agreements about art works—are as multiform and complex as the category of art itself. Acknowledging that there is no discrete body of law that governs art, the author defines art law as “the survey of legal issues raised by art, artist, and the art world” and surveys four central themes: the law as art, the law of art, the law of creativity, and the collision of art and law. Any legal dispute about art usually evokes a plea for special legal rules or approaches, as in the case of Nussenzweig v. diCorcia, 878 N.E.2d 589 (2006). The author points the way toward a study of law in its relationship to creative, cultural practices, particularly to the notion of aesthetic judgment in the domains of art and law. Law typically works to promote and protect, rather than impede, artistic creation on the logic that art is a social good. Questions about art’s role in the creation of culture and the rights of the artist frequently enter the legal domain for their answers. In cases of illegal trade of art treasures, for example, the courts have had to decide whether art constitutes a specific cultural heritage, a broader human achievement, or simply a commodity. Controversies in intellectual property, though they focus on the individual artist, are similarly bound up with creative and economic interests that reveal fundamental inconsistencies between law’s stated mission to encourage the production of art as a common good and law’s so-called creativity threshold, which works to restrict innovation. The author sees in these inconsistencies a collision between art (radically transformative) and law (resistant to change) based on their fundamentally differently cultural functions, and argues that judges apply private ideas about aesthetics instead of openly acknowledging that their judgments are not neutral and nonsubjective.
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