Embedded International Law And The Constitution Abroad, 2010 Columbia Law School
Embedded International Law And The Constitution Abroad, Sarah H. Cleveland
This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal ...
Rethinking International Women's Human Rights Through Eve Sedgwick, 2010 Elisabeth Haub School of Law at Pace University
Rethinking International Women's Human Rights Through Eve Sedgwick, Darren Rosenblum
Pace Law Faculty Publications
Since the death of Eve Kosofsky Sedgwick, I have wanted to honor her memory, and this panel is the perfect venue. Sedgwick's foundational understandings of sexuality, gender, and identity set the stage for much of my work and that of those I admire. My own work looks at how the state regulates gender in the “public” sphere. I attempt to challenge the tensions and intersections among international and comparative notions of equality and identity. Group identity constructions vary across cultural lines and conflict with liberal notions of universalist constitutionalism and equality. My current work, Unsex CEDAW: What's Wrong ...
Forced Marriage And The Exoticization Of Gendered Harms In United States Asylum Law, 2010 Allard School of Law at the University of British Columbia
Forced Marriage And The Exoticization Of Gendered Harms In United States Asylum Law, Jenni Millbank, Catherine Dauvergne
While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from ...
In Defence Of The Sphere Of Influence: Why The Wgsr Should Not Follow Professor Ruggie's Advice On Defining The Scope Of Social Responsibility, 2010 Allard School of Law at the University of British Columbia
In Defence Of The Sphere Of Influence: Why The Wgsr Should Not Follow Professor Ruggie's Advice On Defining The Scope Of Social Responsibility, Stepan Wood
The Working Group on Social Responsibility (WGSR) of the International Organization for Standardization (ISO) will meet in Copenhagen from May 17 to 21, 2010 for what is likely to be its last meeting to work on ISO 26000, an international guide on social responsibility. One of the central challenges for the WGSR is to define the scope of an organization’s responsibility for human rights abuses committed by third parties. ISO 26000, approved by a large majority in a recent "Draft International Standard" ballot, answers this question largely in terms of an organization’s degree of control or influence over ...
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, 2010 Allard School of Law at the University of British Columbia
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young
This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section ...
Why Culture Matters In International Institutions: The Marginality Of Human Rights At The World Bank, 2010 Allard School of Law at the University of British Columbia
Why Culture Matters In International Institutions: The Marginality Of Human Rights At The World Bank, Galit A. Sarfaty
Why do international organizations (IOs) behave as they do? Scholarship in international law and international relations reflects an emerging interest in IOs, yet it overemphasizes the role of states in shaping how IOs behave and make policy. Understanding institutional behavior and change requires an ethnographic analysis of the internal dynamics of IOs, including their formal and informal norms, incentive systems, and decision-making processes. This Article analyzes the organizational culture of one particularly powerful international institution - the World Bank - based on ethnographic fieldwork at the Bank over four years. It seeks to understand why the institution has not adopted a human ...
The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, 2010 Allard School of Law at the University of British Columbia
The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young
This case comment discusses the judicial decisions in Sagen v. VANOC regarding the constitutional challenge brought by women ski jumpers to their exclusion from the 2010 Vancouver Winter Olympics. While the claimants argued that the constitutional equality provision (section 15 of the Canadian Charter of Rights and Freedoms) had been infringed, the BC courts' decisions focussed on the novelty of the state action problem. At least one level of court accepted that the exclusion was discriminatory but the challenge failed because the decision to exclude lay within the power of the International Olympic Committee, an entity beyond the ambit of ...
International Idealism Meets Domestic-Criminal-Procedure Realism, 2010 University of Pennsylvania
International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White
Faculty Scholarship at Penn Law
Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of ...
Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, 2010 University of Pennsylvania
Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis
Faculty Scholarship at Penn Law
No abstract provided.
Loving Humanity While Accepting Real People: A Critique And A Cautious Affirmation, 2009 Boston College Law School
Loving Humanity While Accepting Real People: A Critique And A Cautious Affirmation, Daniel Kanstroom, David Hollenbach
No abstract provided.
Immigrant Workers And The Thirteenth Amendment, 2009 University of San Francisco School of Law
Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros
Maria L. Ontiveros
This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration ...
Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, 2009 University of Miami School of Law
Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless
The ill-defined law-fact distinction often stands as the gatekeeper to judicial review of an agency deportation order, restricting non-citizens facing deportation to raising only questions of law when appearing before an appellate court. The restriction on review most affects cases whose dispositions typically turn on the resolution of factual issues, including claims under Article 3 of the Convention Against Torture and claims for discretionary relief from deportation like cancellation of removal. Convention Against Torture claims, for example, often involve extensive fact-finding on the part of the immigration judge regarding conditions in the applicant’s home country and the applicant’s ...
Perspectives On Fundamental Rights In South Asia, 2009 Drexel University School of Law; University of California, Berkeley, School of Law
Perspectives On Fundamental Rights In South Asia, Anil Kalhan
This symposium issue of the Drexel Law Review marks the anticipated launch of a proposed new section on Law and South Asian Studies of the Association of American Law Schools, including several contributions that were initially presented during a session of the proposed section at AALS Annual Meeting for 2010. The proposed AALS section comes at a moment of heightened interest in the region among lawyers, policymakers, and the public at large in the United States, and is part of a rapidly growing constellation of scholarly initiatives on law in South Asia that have emerged internationally in recent years. In ...
Mutual Renewal: On The Relationship Of Human Rights To The Muslim World In Patrick James, Ed., 2009 Occidental College
Mutual Renewal: On The Relationship Of Human Rights To The Muslim World In Patrick James, Ed., Anthony Chase
No abstract provided.
Economic Harm As A Basis For Refugee Status And The Application Of Human Rights Law To The Interpretation Of Economic Persecution, Kate Jastram
No abstract provided.
In The Best Interest Of The Child – Contemporary Parenthood, 2009 Lund University Faculty of Law
In The Best Interest Of The Child – Contemporary Parenthood, Tatiana Tolstoy
No abstract provided.
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, 2009 Ohio Northern University
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
Michael W. Lewis
The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture ...
Statutes Undermine The Progress Made: The Criminalisation Of Positive Women, 2009 Northeastern University
Statutes Undermine The Progress Made: The Criminalisation Of Positive Women, Aziza Ahmed, Beri Hull, Alice Welbourn, Emma Bell, Heidi Nass
Criminalisation laws have a specific and nuanced impact on women living with HIV. An understanding of the consequences of such laws will help positive women and other advocates to combat negative uses of such laws, and to frame and advocate for effective alternatives for HIV prevention. This article helps tease out some of the ways that criminalisation can negatively impact the lives of positive women in particular: the explicit sex discrimination in the laws, the gender bias in courtrooms, the impact on marginalised women, and the increase in stigma and discrimination through criminalisation laws.
A Typology Of Economic And Social Rights Adjudication: Exploring The Catalytic Function Of Judicial Review, 2009 Boston College Law School
A Typology Of Economic And Social Rights Adjudication: Exploring The Catalytic Function Of Judicial Review, Katharine G. Young
Katharine G. Young
The tensions that are often thought to lie between democracy and constitutionalism are especially pronounced with respect to the entrenchment of economic and social rights. Within current understandings of judicial review, courts appear to lack the competency, and the legitimacy, for economic and social rights adjudication. In this article, I draw on the South African Constitutional Court’s experience with justiciable economic and social rights, to present a typology of judicial review, which incorporates deferential, conversational, experimentalist, managerial and peremptory stances. I suggest that these five stances are part of a general judicial role conception which I term catalytic, because ...
Setting Aside An Arbitration Award, 2009 Fordham University
Setting Aside An Arbitration Award, Fernando Leila
I - Facts Most arbitration rules stipulate that the arbitral awards that result from arbitration under those agreements or rules are ‘final.’ Yet there is almost always the possibility for a party to challenge the award, whether or not the parties have agreed. According to the United Nations Commission on International Trade Law (“UNCITRAL”), a successful challenge will usually result in the award being ‘set aside,’ ‘vacated,’ or’ annulled,’ and therefore ceasing to exist, at least within the jurisdiction of the court setting it aside. To set aside an award means to 'declare the award to be disregarded in whole or ...