N. W. Barber, Peoples, Principles, and Finality, 66 Am. J. Juris. 145 (2021)
The Principles of Constitutionalism examines the principles which speak to the construction and interaction of state institutions. This article responds to some criticisms of that book, in particular, those which question the universalizability of the principles, the relationship between state institutions and the people of the state, the place of democracy within constitutionalism, and the role of finality in state decision-making. It is argued that it is the link between the people and institutions, mediated by democracy, that both explains and justifies the state's claim to act as the final arbiter of the obligations of its people.
Raj Bhala, Hong Kong's Democracy, Human Rigths, and America's Trade Sanctions, 30 Kan. J. L. & Pub. Pol'y 307 (2021)
There is no systematic link in America's international trade law to human rights. While the U.S. includes provisions in its free trade agreements on labor rights, it does not - in contrast to the European Union - include human rights clauses in them. Only episodically, and in an ad hoc fashion, does the U.S. respond through its trade laws to human rights issues. One such instance has been American measures taken after China, effective 1 July 2020, imposed its National Security Law on Hong Kong. In this instance, the U.S. has indelibly linked its liberal capitalist values to its import-export measures. This article explores Hong Kong as a case study in the linkage by the U.S. of its trade policy to human rights. It argues that Hong Kong is a useful precedent on which the U.S. should build, indeed, lead. That is true even after the infamous events at the U.S. Capitol of 6 January 2021, a day on which America lost more of its innocence as a young, hopeful nation, and undermined its exceptionalism as a shining light. The rationale for the argument is self-evident. No systematic defense of democracy specifically, or human rights generally, is offered - or necessary. After all, plenty of such defenses have been made across the centuries. The tale of what happened in Hong Kong, both in fact and in law, provides all the rationale that should be necessary. Part II examines China's National Security Law and the essential legal developments that led up to it. Part III reviews the U.S. response to that Law, plus key developments in Hong Kong and Chinese views and counter-measures targeting America. Part IV suggests the U.S. response was correct, and a useful precedent on which to broaden and deepen the trade-human rights linkage, in what arguably is an Open Society War.
Raj Bhala & Eric Witmer, Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods for International Trade Law, 35 Conn. J. Int'l L. 58 (2020)
The conventional wisdom as to how the World Trade Organization (WTO) Appellate Body must interpret disputed terms in a treaty is incomplete, and even potentially misleading. The conventional wisdom says the Appellate Body is restricted to the tools provided by Articles 31-32 of the 1969 Vienna Convention on the Law of Treaties. The key tool is a mechanical, lexicographic hammer, namely, finding the plain meaning of a word or phrase at issue in a case between two WTO Members, with occasional recourse to surrounding passages, and if pressed, to the purpose of the treaty in which the disputed term is located. But those Articles amount to a larger tool kit than the conventional wisdom recognizes.
In truth, those Articles allow for three wide categories of techniques, Textualist, Contextualist, and Pragmatic, for interpretation. These techniques are rich, nuanced tools familiar in American Jurisprudence and English Literary Theory. A complete and transparent account of the tools the Appellate Body has at its disposal to make decisions should acknowledge this tripartite taxonomy, and thereby appreciate the intra- and inter-disciplinary nature of international trade treaty interpretation that, at least in theory, is possible.
Maria Cahill, Subsidiarity As the Preference for Proximity, 66 Am. J. Juris. 129 (2021)
This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber's book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber's theory provides a viable account of the preference for proximity.
Francisco Carpintero Benítez, The Fundamentals of Ethics, 84 IUS Gentium 171 (2020)
The foundations of morals is a complex topic. Today there is deso. The cause is rooted in theological discussions from the Late Middle Ages and onward. That discussion is centred in the opposition between Thomists and nominalists. Aquinas and his followers thought that practical norms were founded in teleological principles. Nominalists thought that norms were imperative: the key was the will of God, not the reason of the precept. At last, the winner was the nominalist way, and the idea of moral diffused in our culture was a system of imperatives. This legacy makes difficult to speak today about reason in ethics.
Isaac Conrad Herrera Sommers, Suffering for Her Faith: The Importance of an Intersectional Perspective on Gendered Religious Persecution in International Law, 61 Harv. Int'l L.J. 511 (2020)
Women around the world suffer from discriminatory treatment ranging from violent persecution to social differentiation. Likewise, religious people are routinely targeted because of their faith. Moreover, many women of faith have historically been and are still today subject to increased risk of harm or actually experience a greater level of targeted harm (as compared to non-religious women or religious men) because of the interplay between their religious and gender identities. Despite this, a number of the most prominent international legal institutions that deal directly with discrimination against women inadequately use intersectional language to refer to religious women. In fact, there is a notable gap in scholarship and legal documents specifically addressing the disparate impact of discrimination toward religious women and a tendency to treat religion more as a source of oppression than as a distinct identity. Although many international organizations and agreements address issues of gender and religious discrimination separately, human rights bodies need to do more to address the intersection of gendered religious discrimination. This Note is directed both at audiences who may be skeptical of or hostile toward intersectionality as a legal or policy framework, and at audiences who may support intersectionality but who are skeptical of or hostile toward religion. It addresses the importance of religious and gender identities and the ways those two identities are often inextricably linked. This Note highlights a variety of historical and contemporary examples of persecution of religious women through an intersectional perspective, evaluates the failings of various international human rights institutions to address gendered religious persecution, and proposes a variety of recommendations for such groups to more consistently employ intersectionality to advance the human rights of women of faith.
John M. Czarnetzky, The International Criminal Court and Catholic Social Doctrine. 1 Journal of Catholic Social Thought 6 (2019)
The International Criminal Court was the result of decades of postwar pressure to establish a permanent tribunal with jurisdiction over the most heinous crimes against humanity. Despite the noble goals of its architects, the ICC has not been effective in prosecuting such crimes. The author argues that the reasons for the Court’s ineffectiveness were apparent from its inception due to the flawed view of the human person and society that is at the foundation of the Court. Using the insights of Catholic Social Doctrine, this article dissects the erroneous social anthropology, which is the basis for the Court’s design, and suggests possible correctives based on a correct understanding of the human person and human society.
Rafael Domingo, and John Witte Jr, eds. Christianity and Global Law. Routledge, (2020)
This book explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historical biographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges. The volume will be an essential resource for academics and researchers working in the areas of law and religion, transnational law, legal philosophy, and legal history.
Ligia De Jesús Castaldi, Abortion in Latin America and the Caribbean: The Legal Impact of the American Convention on Human Rights, University of Notre Dame Press, (2020)
Abortion in Latin America and the Caribbean is the first major book to analyze the abortion laws of the Latin American and Caribbean nations that are parties to the American Convention on Human Rights. Making use of a broad range of materials relating to human rights and abortion law not yet available in English, the first part of this book analyzes how Inter-American human rights bodies have interpreted the American Convention’s prenatal right to life. The second part examines Article 4(1) of the American Convention, comparing and analyzing the laws regarding prenatal rights and abortion in all twenty-three nations that are parties to this treaty. Castaldi questions how Inter-American human rights bodies currently interpret Article 4(1). Against the predominant view, she argues that the purpose of this treaty is to grant legal protection of the unborn child from elective abortion that is broad and general, not merely exceptional.
Abortion in Latin America and the Caribbean offers an objective analysis of national and international laws on abortion, proposing a new interpretation of the American Convention’s right-to-life provision that is nonrestrictive and provides general protection for the unborn. The book will appeal not only to students and scholars in the field of international human rights but also to human rights advocates more generally.
Ligia De Jesús Castaldi, El caso Manuela y las 17+ contra El Salvador: Un fraude ante la Corte Interamericana de Derechos Humanos y la comunidad internacional, 17 Derecho Público Iberoamericano (2020)
En el artículo se analizan los hechos y el contexto político del caso “Manuela” ante la Corte IDH, que busca la despenalización del aborto voluntario en El Salvador. También se examinan los hechos y contexto de la petición presentada ante la CIDH sobre los casos de nueve mujeres condenadas por el homicidio agravado de sus hijos recién nacidos en El Salvador. La demanda de la CIDH ante la Corte, al igual que la petición, acusa a El Salvador de violar derechos humanos contenidos en la Convención Americana sobre Derechos Humanos por la supuesta penalización de abortos involuntarios y emergencias obstétricas en el país. Asimismo, se analiza la veracidad de los argumentos presentados en esta denuncia sobre la base de la evidencia existente en el expediente judicial y documentación oficial del caso “Manuela” y de los casos de “Las 17+”, incluyendo sentencias de cortes de primera instancia, escritos y solicitudes [...].
Ligia De Jesús Castaldi, El fallo Artavia de la Corte Interamericana de Derechos Humanos en su décimo aniversario: algunas reflexiones sobre el “Roe v. Wade latinoamericano” 94 Prudentia Iuris (2022)
En el fallo Artavia vs. Costa Rica, la Corte Interamericana de Derechos Humanos citó el fallo Roe v. Wade de la Corte Suprema de Estados Unidos en apoyo de su razonamiento a favor de la reproducción asistida y al aborto provocado. Esta nota examina el posible efecto de la derogación del fallo Roe en el razonamiento del Caso Artavia, y la analogía entre el fallo Artavia y el Roe v. Wade norteamericano. La nota analiza, a la vez, el alcance y la validez legal del fallo Artavia en el contexto de la jurisprudencia de la Corte Interamericana de Derechos Humanos.
Ligia De Jesús Castaldi & Antony B. Kolenc, Brief of 137 International Legal Scholars As Amici Curiae in Support of Petitioners in Dobbs v. Jackson Women's Health Organization, 20 Ave Maria L. Rev. 1 (2022)
Amici curiae consist of 137 international legal scholars, including former judges and justice officials, deans of law schools, and law professors and law scholars. A full identification of each amicus appears in the Appendix.
Amici assert the inherent right to life of the unborn and recognize Mississippi's interest in limiting access to abortion on demand. Amici are concerned with preserving the principle of state-level freedom to tailor abortion regulations.
Amici believe it is beneficial for the Court to take into consideration the international legal context, including how a decision of the Court might be understood in relation to other State practices.
Amici write to inform the Court that there is no international human right to abortion, and that international law is predicated on an understanding of the unborn child as a rights-holder. They also seek to inform the Court about the existence of a general standard of international practice among the minority of States that allow elective abortion, limiting abortion on demand to pregnancies of twelve weeks' gestation.
Luciano Eusebi, Build and Restore Good Human Relationships. Overcoming the Retributive Paradigm As A Key Issue for the Theory of Justice, 84 IUS Gentium 213 (2020)
The paper assumes as a central ethical necessity of our time the farewell to a model of justice based on mutual behaviours correspondence: according to which it's just that the negative judgment towards the other is followed by the action against him, that is to say in order to overwhelming him. This, in fact, has led to theorize the logic of conflict as natural in human affairs: for which every duality implies an opposition. Now, however, this logic entails the risk of total destruction. The aim of the paper is, therefore, to highlight how different sectors of human relationships (between people, parties or States) remain largely marked out by a retributive model of justice. It's proposed a vision of justice intended as building and restoring the good in the face of evil, which can give rise to good life conditions and relationships between all involved subjects.
John D. Feerick, Dennis James Kenny - My Friend, 45 Fordham Int'l L.J. 269 (2021)
Dennis was unlike any other friend I have known, a friendship that grew and grew since its inception. As Shakespeare observed through the voice of a father as he sends his son off into the world: “the friends thou hast, and their adoption tried, grapple them to thy *274 soul with hooks of steel.” I was blessed to enjoy such a friendship with Dennis Kenny, a companion through life for more than sixty years. May he rest in peace, in the blessings promised by his faith, and may “flights of angels sing [him to his] rest.”
Kevin H. Govern, Direct Action and Expediency: The Killing of Qassem Soleimani, 8 Indon. J. Int'l & Comp. L.55 (2021)
This article examines the notion of national security decisions by the U.S. and its allies over the with a notion of expediency complicating intelligence, legal, and operational decision-making: was killing General Soleimani a legitimate military objective? In conclusion, the author offers a past-is-prologue commentary on how and why expediency can and should be avoided in future national security decision-making.
Kevin H. Govern, Licit War Trophies As A Means of Preserving Art and Culture in Times of War, 20 Ave Maria L. Rev. 51 (2022)
Effective and enforced war trophies laws and policies protect property, cultural or otherwise, and proscribe any temptation by the average service member to improperly pursue a “to the victor belong the spoils” approach to their sworn responsibilities to conduct themselves in accordance with law and custom. Which ethical, competent defense counsel would ever raise the specious and unethical legal defense that “until the war is over, anything's legal,” notwithstanding political rhetoric?
The promulgating and enforcing of a limited “war trophies” policy has the goal of recommending precedent and policy for service members serving in time of war or armed conflict. A modest and sensible war trophy policy has a practical impact in allowing personal mementos with little more than sentimental value and minimal utility to be retained by soldiers from their time of service, without depriving private citizens of their possessions nor (former) adversary governments or entities of their ability to provide continuity of government. Aside from academics advancing adherence to IHL, most importantly, military members will be aided in exercising their discernment when called upon in missions to destroy--or protect--public and private property, as well as cultural advisors, especially Civil Affairs and Civil-Military Operations experts, and Judge Advocates, the advisors and guardians of protected persons and things.
Peter Y. Kim, In, from, and to Space: Safeguarding the United States of America and Her Interests, 42 U. Pa. J. Int'l L. 1157 (2021)
This Comment serendipitously pays homage to Professor Bin Cheng's Studies in International Space Law, by re-examining topics covered in his trailblazing work and by exploring how the United States Space Force may exist under current international law. Although military use of outer space is limited by international treaties and customary law, the United States of America must be prepared to protect her interests from future threats. Cue the Space Force, which will need to navigate a novel theater of war and anticipate legal consequences under space law, the law of war, and the law of the sea. Using the present legal framework is only the beginning, as only time will tell how space warfare will unfold.
Yuri G. Mantilla, Francisco De Vitora's Normatve Ideas and the Beginnings of International Law: A Colonial Ethnocentric Discourse, or A Bona Fide Effort to Construct Just International Norms?, 44 Loy. L.A. Int'l & Comp. L. Rev. 43 (2021)
Vitoria recognized the source of civil power in the commonwealth and not in ecclesiastical authority. Consistent with that belief, “infidel” nations, such as the Inca, could have had legitimate political communities. Unlike medieval authors, who rejected the existence of political communities in “infidel” nations because of their sinfulness and unbelief in Christianity, Vitoria accepted the existence of dominion (dominium) and civil power (potestate civili) in non-Christian nations. In his commentaries on Aquinas' Summa theologiae, he recognized the internal sovereignty of indigenous nations by indicating that Christian sovereigns were not superior to indigenous ones, and that their territories could not be taken away.392 In his letter to Miguel Arcos, Vitoria equated the Inca Empire with Castile and Aragon. Those political communities were part of Spain, but they had a limited external sovereignty.393
If Francisco de Vitoria's ideas are the starting point of international law, there is not a colonial ethnocentric origin of this discipline. Despite the contradictions and limitations of Vitoria's international legal doctrines, his international legal ideas were a bona fide effort to promote just international norms. This was done within the limits of Vitoria's 16th century Spanish intellectual-historical context and within his limited knowledge about the indigenous nations of the New World.
Yuri Mantilla, Indigenous Peoples' Diplomacy, Mediation, and Conciliation As A Response to the I.C.J. Decision in the Obligation to Negotiate Access to the Pacific Ocean Case, 51 Cal. W. Int'l L.J. 29 (2020)
The Article analyzes the International Court of Justice's decision in the Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) case and its failure to provide an original and effective legal solution to an important territorial dispute in Latin America. As a response to this, this Article makes the case for the engagement of other institutions and actors including the Secretary General of the United Nations, the Organization of American States, and Pope Francis, who could facilitate mediation processes for the resolution of this international conflict. This Article considers historical facts that demonstrate the intention of the parties to find a negotiated solution to their territorial dispute. It makes the case for using mediation and conciliation, for the resolution of the conflict, and makes arguments against power politics and the use of military force as instruments for the resolution of the territorial dispute. Moreover, this Article demonstrates that the people of Bolivia and Chile can find a mutually beneficial solution to their dispute by creating, among others, civil *30 society reconciliation commissions with the leading participation of indigenous people. Finally, this Article makes the case for indigenous peoples, as the original owners of the territory under dispute, to become essential actors in the process of resolving the conflict.
Yuri Mantilla, The Language of International Human Rights Law As A Foundation for the Prevention, and Peaceful Resolution of Ethnic, and Political Conflicts in Bolivia, 32 Pace Int'l L. Rev. 171 (2020)
Considering the complexity of the Bolivian crisis, there is a need to establish systematic reconciliation and mediation processes to preserve a peaceful coexistence between diverse ethnic groups. The mediation efforts of the U.N., the E.U., and the Catholic Church should serve as an example of the effectiveness and importance of the role of neutral parties in contributing to the resolution of ethnic and political conflicts.353 The Bolivian people should establish and sustain a powerful movement of mediators and conciliators that systematically focus on efforts for the prevention and peaceful resolution of ethnic conflicts. The international community should support those efforts. However, it is up to Bolivians; Bolivia's political leaders; political parties; civil society organizations; social movements; and media networks, among others, to ensure the success of a culture of national reconciliation that recognizes the importance of respect for human dignity as the foundation for their peaceful coexistence.
Aniceto Masferrer, Criminal Law and Morality Revisited: Interdisciplinary Perspectives, 84 IUS Gentium 1 (2020)
The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. This chapter will take the famous ‘Wolfenden Report’ (1957) as a starting point for reviewing the interaction of criminal law and morality, in the context of the broader relationship between politics, law and morality. Moral laws and civil laws have different limits and practical purposes, as is made clear in the writings of Aristotle, Thomas Aquinas and Spanish scholastics such as Francisco de Vitoria, Domingo de Soto and Francisco Suárez. Modern philosophers such as Descartes, Hobbes, Rousseau, Kant, and Mill also raise important issues concerning the relation between law and morality. This chapter will draw the line between and explain the inescaple connections between criminal law and morality.
Aniceto Masferrer, The Role of Nature in the Secularization of Criminal Law in Europe (17th-19th Centuries) the Criminal Law of the Enlightenment Revisited, 84 IUS Gentium 97 (2020)
Some authors have argued that enlightenment authors endorsed a social contract that was not compatible with the existence of laws of nature or a moral foundation for criminal law, while nineteenth-century liberal criminal lawyers founded criminal law upon a natural law theory, based on divine commands. This chapter demonstrates on the contrary that enlightenment authors did not necessarily make a sharp distinction between morality and criminal law, nor did 19th-century criminal lawyers adopted a conception of criminal law that was too heavily dependent on morality, as it was defended by medieval and early-modern-age scholars. The traditional dichotomy between enlightened thinkers and traditional criminal lawyers does not apply well to nineteenth-century Spain and France.
Christopher McCrudden, Indirect Religious Discrimination: Resisting the Temptations of Premature Normative Theorization, 34 Harv. Hum. Rts. J. 249 (2021)
Several jurisdictions appear to be grappling with the concept of indirect religious discrimination at an increased rate. The concept connects intriguingly to the concept of freedom of religion in a way that some legal practitioners describe as familial. Additionally, scholars contest its normative foundations. This Essay focuses on legal measures addressing indirect religious discrimination and seeks to cast some light on each of these issues, particularly the concept's normative foundations. In doing so, the Essay highlights the experience of the development and use of indirect religious discrimination in several European jurisdictions: The United Kingdom--including Northern Ireland, which adopts a somewhat different legal position--France, the European Union, and the European Court of Human Rights (“ECtHR”). The use of indirect religious discrimination beyond these and other European jurisdictions is not addressed in any detail, and international human rights law, except the European Convention on Human Rights (“ECHR”), is not considered. Drawing from these diverse sources, this Essay argues that a convincing general normative theory of indirect religious discrimination law--one which seeks to reflect current legal practice rather than supplant it--is premature in its present state of development.
Carlos Alberto Molinaro & Regina Linden Ruaro, Privacy Protection with Regard to (Tele-)communications Surveillance and Data Retention, 96 IUS Gentium 113 (2022)
Law 12.965/2014 established the so-called Civil Framework for the Internet. The principles of the law, especially the guarantee of net neutrality, freedom of expression and privacy of users, have been established to maintain the openness of the Internet. However, the Civil Framework for the Internet does not close the debate on the Brazilian Internet regulation. Privacy and the protection of personal data, for example, are protected by the General Law for the Protection of Personal Data (LGPDP), Law 13.709 of August 14, 2018. In its Article 60, this Law amends Law 12.965, of April 23, 2014, regarding the right of definitive deletion of personal data, as well as the prohibition of storage of personal data which are excessive in relation to the purpose for which the data subject has given consent. The Brazilian Civil Framework for the Internet establishes general principles, rights, and obligations for the use of the Internet, as well as some relevant provisions on storage, use, treatment and dissemination of data collected online. In addition, its Regulatory Act (Decree 8.771/2016) brought the first legal definition of personal data in its Article 14, letters A and B. Other aspects of data privacy are still governed by general principles and provisions on data protection and confidentiality in the Federal Constitution, in the Brazilian Civil Code and in laws and regulations for other fields and types of relationships (for example, financial institutions, health, consumers, telecommunications or medical sector). This text studies the issues of privacy, data protection, and their retention, given the rules of the Brazilian legal system, as established in the Civil Framework of the Internet, following the general normative order. The methodology uses bibliographic research in national and foreign doctrine, as well as legislation *114 and legal issues on what is pertinent to the subject and, to a lesser extent, for the intended objectives.
David Morrison & Patrick T. Quirk, An Australian Conundrum: Genomic Technology, Data, and the Covidsafe App, 33 Pace Int'l L. Rev. 43 (2020)
In the event of a pandemic, we posit that there lies a difficult balance for governments between liberty on the one hand, and prospects of survival on the other; with respect to the latter, apparently lies the question on how to achieve it, without giving up too much prosperity in the process. It is a complex and difficult decision for a government because it involves an inevitable compromise of factors such as privacy, data security, ethical considerations, and safety that conflate the ideological differences between the rights of the individual on the one hand, and the whole-of-society on the other. The Australian COVIDSafe app is an example of the difficulties associated with dealing with a complex and evolving pandemic. While there is no apparent solution as to how to best deal with a crisis that changes often and quickly, it at least seems apparent that where digital options--such as an app--are available and, where those options might be used for the immediate and beneficial societal health improvement and protection, governments might find opt-out determinations more immediately useful. That being so, then the fallout from the use of the opt-out option can be altered, eased, or removed when the health crisis is averted. When and for whom this is the most appropriate course of action is a matter, at least in Western countries, for their democratically elected leaders.
Dr. Obiajulu Nnamuchi, Nigeria's Same Sex Marriage (Prohibition) Act and Threat of Sanctions by Western Countries: A Legitimate Case of Human Rights Advancement or What?, 25 Sw. J. Int'l L. 120 (2019)
Political posturing and grandstanding aside, no international human rights instruments exist--not a single legal framework--that accord human rights recognition to homosexual or same-sex marriage. The closest the global community has ever come to recognizing this genre of interest as a human right is the adoption by a human rights group of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. Significantly, since this adoption in 2006, the United Nations has not come forth to project the Yogyakarta Principles as setting a universal human rights standard. Regardless, international law does not prohibit individual States from elevating homosexual marriage or any other contentious human rights claim to the status of a right within their respective domestic realms as part of legitimate exercise of national sovereignty. But there is no principle of international law which entitles these same States to compel other nations to accept their own municipal interpretations of, or ideas about, sexual “rights.” Therefore, attempts by these States to impose sanctions on, or otherwise denounce, those nations whose worldview regarding homosexuality is irreconcilably at odds with theirs, is a violation of the human rights of the people in the maligned nations to self-determination - the right to conduct their affairs in accordance with the dictates of their own value system.
Jordan Paul, Deliver Us from Evil: Domestic and International Solutions to Clerical Sex Abuse, 36 Ariz. J. Int'l & Comp. L. 501 (2019)
For decades, the Catholic Church has used a complex web of priest-shifting, destruction of documents, and doctrine to cover-up countless crimes committed against the world's most vulnerable population. Although action should have been taken long ago, that is not an excuse to continue on the path of inaction. Already, there are signs of change, from multiple investigations worldwide to the prosecution of high-ranking officials for their roles in the abuse. This is not enough. Everyone in the Church who has ever abused a child or covered for someone who did must face their crimes and be brought to justice for their actions. When the Church ratified the Convention on the Rights of the Child, it quoted Pope John Paul II in its signing declaration, writing that children are a “precious treasure given to each generation.”280 It is time for the world, and the Church, to live up to those words.
Andrea Pin and John Witte, Jr., Meet the New Boss of Religious Freedom: The New Cases of the Court of Justice of the European Union, 55 Tex Int'l L. J. 223 (2020)
This Article analyzes how and why the Court of Justice of the European Union is rapidly becoming an important new forum for European religious freedom and threatening to eclipse the better-known European Court of Human Rights. Before 2017, the Court of Justice was largely silent on religious freedom, and it did little to implement the new religious freedom guarantees of the 2010 EU Charter of Fundamental Rights. Since 2017, however, this Court has issued landmark rulings on the rights and limits on Muslim employees to wear religious headscarves in the workplace and the rights of employers to make religious affiliation and conformity a prerequisite for employment or a basis for differential treatment of employees. The Court has balanced the rights of religious groups to continue ritual slaughtering with the growing concerns for animal wellbeing and organic food preparation. The Court has addressed hard questions of tax exemption and other state aid for religious schools; the rights and limits of refugees alleging religious persecution at home; the limits on state recognition of religious divorces; and the limits that privacy laws impose on Jehovah's Witnesses. And the Court has begun to question longstanding religion-state arrangements in selected countries, including those establishing or favoring traditional forms of Christianity. Unlike the European Court of Human Rights in Strasbourg, which mostly relies on voluntary compliance by the individual State found in violation on the European Convention on Human Rights, the European Court of Justice produces cases that immediately bind all EU Member States and automatically preempt conflicting local laws. Moreover, local state courts regularly seek advisory opinions from this European Court on prevailing EU law before resolving local cases before them. This makes appeal to binding EU law more attractive for local litigants, religious freedom advocates ever more prominently amongst them. If present case trends continue, the world might well be watching the birth of an integrated European law of religious freedom; however, that birth could unsettle longstanding local traditions of church-state relationships and leave insular religious minorities, particularly Muslims, with little religious freedom protection.
Grégor Puppinck, Mi Deseo Es La Ley;Los Derechos Del Hombre Sin Naturaleza. Ediciones Encuentro (2020)
Setenta años después de su Declaración universal, los derechos humanos se han convertido en una filosofía universal que expresa una concepción determinada del hombre y que, a través de una tupida red de instituciones, impone una moral centrada en los derechos individuales. Este libro aborda en profundidad la transformación habida en la concepción del hombre en virtud de la evolución actual y futura de los derechos humanos. Para ello compara la intención original de los redactores de la Declaración universal, tal como aparece en los archivos de 1948, con la interpretación evolutiva que han hecho de ellos posteriormente las instancias internacionales. Se habría pasado así, en las últimas décadas, de los «derechos humanos» a los «derechos del individuo», siendo la última estación de este viaje el paso a los «derechos transhumanos», actualmente en formación. «El análisis de la evolución de los derechos humanos permite observar con objetividad la evolución de la idea que se hacen del hombre las diferentes instancias internacionales, que no es poca cosa. (...) Esta evolución atestigua una transformación profunda de la concepción de dignidad humana que tiende a ser reducida exclusivamente a la voluntad individual, o al espíritu por oposición al cuerpo, que considera toda negación de la naturaleza y de sus condicionamientos como una liberación y un progreso».
Patrick T. Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, 43 Fordham Int'l L.J. 163 (2019)
As Denise Meyerson has noted, “the formal protections afforded religious freedom under Australian law are relatively weak-- particularly when compared to many other liberal democracies.”240 By contrast, Germany has constitutionalized protections for religion and conscience, which have been litigated seriously and at length over many decades since the end of World War II and most recently in the crucifix and headscarf cases. The recent Australian court cases dealing with these issues are grounded in the law of process, evidence, and courtroom demeanor and are bubbling up toward an as yet non-existent all-encompassing set of principles, upon which coherent judicial norms for freedom of conscience at a constitutional - or at least a national - level can be based. These principles will not appear out of thin air but must be deliberated and decided in the light of present irregularities. The German constitutional guarantees, together with their judicial interpretations, provide a valuable model for this and will repay thoughtful and disciplined consideration by Australian policymakers and judges alike.
Maurizio Ragazzi, Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J., 182 LAW & Just. - Christian L. REV. 65 (2019).
Robert J. Araujo, SJ (1948-2015), was himself a priest, a lawyer, and a scholar and a memorable one in all these three vocations. It is therefore entirely appropriate that Stefanus Hendrianto, a fellow Jesuit from the United States West province, should call upon priests, lawyers, and scholars, whether disciples, friends, or admirers of the honouree, to contribute to this fine collection of essays in his memory.
Manuel Rodríguez Puerto, Liberties, Rights and Punishments in Modern Natural Law, 84 IUS Gentium 45 (2020)
The aim of this chapter is to show the intersection of law and moral in criminal law from the point of view of legal theory in early Modernity. To understand this question, the chapter treats succintly the concepts of law, crime and moral good in the legal science of ius commune; this conception was based on an objectivized notion of justice; consequently, criminal law was conceived as a protection of basic moral goods. Legal theory of early modernity (centered here in the Modern School of Natural Law) described the law as a natural bundle of individual liberties. The legal order is designed to protect that freedom and, specifically, the aim of criminal law was to protect basic individual freedoms. Modern thought distinguished theological goods from legal principles, but the intention was the protection of the most important moral good: the individual freedom.
Ronald J. Rychlak, FISA Commentary Series Disinformation in Crossfire Hurricane. 7 Nat'l Sec. L. J. 1 (2020-2021)
The December 9, 2019, Crossfire Hurricane DOJOIG Report marks the most publicly visible controversy in the forty-year history of the FISA statute. It also represents a potential trap for well-meaning policymakers: sometimes "the road to hell is paved with good intentions. "In contemplating FISA reform, past non-partisan FISA policy disputes within the DOJ specifically those concerning internal FISA review mechanisms designed to ensure compliance with the statute-demand attention. These past disputes show that the FISA framework has proven unusually reactive to pressure or sudden policy shifts; and when the FISA framework has been destabilized, this has compromised U.S. national security. Policymakers newly concerned about FISA misuse might reasonably envision a "pendulum" analogy whereby FISA restrictiveness and permissiveness have fluctuated over time depending on national priorities. Accordingly, twenty years after the 9/11 attacks, it might seem theoretically desirable to consider reinstating (or partially reinstating) past FISA order review policies from when the framework was most restrictive. However, the compliance regime during this period between 1995 and 2001, featuring a "Wall" between federal prosecutors and investigators conducting FISA surveillance, was flawed both legally and practically,; it contributed to the 9/11 intelligence failures. Reinitiating the Wall policies is not an option. Hence, policymakers aspiring to amplify judicial review of FISA orders appear to face the task of constructing wholly new safeguards. The national security surveillance mechanism hangs in the balance. A potential (partial) remedy, favored by national security lawyers, is a "Super IG"FISA oversight system, which would facilitate FISA scrutiny without delaying or impeding the process.
Francesco Seatzu, Extraditing Persons from Italy to Vatican City: Chimera or Real Possibility?, 32 Ind. Int'l & Comp. L. Rev. 515 (2022)
In the course of the last year Italy was confronted with the unusual request from the Vatican City to extradite an Italian national to face charges of embezzlement and misappropriation of Holy See funds. The Holy See requested the extradition of Cecilia Marogna, a self-described intelligence analyst and private spy from Sardinia, who worked for Cardinal Angelo Becciu, a senior Vatican official who was demoted over embezzlement claims. The case has received considerable press coverage and attention through print and online media worldwide, not least because of its numerous twists and turns such as the arrest of Marogna in Milan on an Interpol warrant issued at the Holy See's request, the sudden drop of the extradition request by the Vatican authorities, and Italy's highest court ruling that Cecilia Marogna never should have been arrested before a court evaluated whether she could be extradited. The aim of this Article is to explore whether the extradition of an Italian national, from Italy to the Vatican, unlike what has been claimed by Marogna's defense lawyers and implicitly accepted by the Vatican authorities that dropped the extradition request, is instead possible. The thesis defends this possibility regardless of the absence of a bilateral extradition treaty between Italy and the Vatican and of an ad hoc extradition agreement between Italy and the Holy See. But this is only provided that the request for extradition *516 concerns an Italian citizen convicted or accused of corruption-related crimes like Cecilia Marogna. This Article will proceed as follows: after an introduction, Section 1 will discuss and reject an argument that infers a prohibition of extradition from Italy to the Vatican from the wording of Article 22 of the Lateran Treaty of 1929. Sections 2 and 3 will consider and exclude that an obstacle to extradition from Vatican City to Italy may be inferred from the poor quality of the criminal justice system in Vatican City or from the authoritarian character of the Vatican's internal legal order that is only presumed but not demonstrated. Finally, Section 4 will claim and argue that a proper duty to extradite persons not only from the Vatican to Italy but also from Italy to the Vatican should be inferred from Articles 43 to 49 of the United Nations Convention against Corruption (UNAC) of which both Italy and the Vatican City/Holy See are bound as contracting parties.
Steven W. Teppler, Eric Hibbard, Iso Publishes the Electronic Discovery Standard, 20 Ave Maria L. Rev. 160 (2022)
With the publication of the four parts of the ISO/IEC 27050 standard, SC 27 has concluded its work on electronic discovery. Assuming the typical five-year revision cycle employed by ISO, none of the parts will be subject to a systematic review until late 2023 (i.e., earliest opportunity to consider a revision). The most likely candidate for revision is Part 4 because of its focus on ICT as well as having dependencies on other SC 27 standards like ISO/IEC 27040, which is currently undergoing revision.
ISO/IEC 27050 is expected to help the international community better understand electronic discovery and to set basic expectations as to what is involved. It has been carefully written to avoid conflicts with jurisdictions that *182 have an electronic discover schemes or inadvertently introducing electronic discovery into jurisdictions that have no such process.
U.S. parties interested in acquiring copies of ISO/IEC 27050 can purchase them from the ISO Store94 or from the ANSI Store95 with a substantial discount.
Michael Arthur Vacca, Esq., A Light to the Nations: Why Hungary's Constitutional Protection for Natural Marriage Between A Man and A Woman Accords with International and European Laws, 26 ILSA J. Int'l & Comp. L. 101 (2019)
It should not be assumed that Hungary's legal recognition of marriage as the union of a man and a woman involves any moral judgment against single parents or homosexual couples that raise children. Hungary is simply recognizing that marriage between a child's mother and father is best for that child. This recognition is not an attack on single parents who may be forced to make heroic sacrifices for the sake of their children, nor is it an affirmation that homosexual couples raising children do not love them. But regardless of the fact that there are loving parents who live with children outside of married two parent families, Hungary may exercise its sovereignty by affording unique legal protection to marriage between a man and a woman because there is no international or European law which forbids Hungary's legal preference for marriage as the union of a man and a woman. In fact, the objective reality that married two parent families are best for the wellbeing of children substantiates that Hungary's exercise of national sovereignty is directed towards the wellbeing of its people, especially its children.
Michael Arthur Vacca, J.D., Education and Religious Freedom in the Toledo Guiding Principles: A Comparative Analysis Between the Holy See and the United States, 36 Ariz. J. Int'l & Comp. L. 111 (2019)
The approach of the Holy See to the Toledo Guiding Principles is similar in certain respects to the approach of the United States toward the Principles. By recognizing the role of parents in educating their children and connecting education to human persons, the Holy See and the United States serve as models for improving the Principles. However, regarding the role of religion in public schools, the Holy See does not have the assistance of the United States in promoting a closer interaction between religious groups and public educators. Hopefully, through cooperation between the Holy See and the United States, to the extent that such cooperation furthers the mission of each sovereign, the Toledo Guiding Principles can be reformed and make a real contribution to the flourishing of the human family.
George S. Yacoubian, Jr., Ph.D., LL.M., S.J.D., Deinstitutionalization, Family Reunification, and the "Best Interests of the Child": An Examination of Armenia's Child Protection Obligations Under Conventional International Law, 33 Pace Int'l L. Rev. 151 (2021)
For nearly a century, the global community has sought to afford children legal protections, abandoning widely held views that children were pecuniary assets. In the United States and globally, a nascent children's rights movement culminated in broad child welfare reform. Whether adoption, armed conflict, child labor, education, human trafficking, or deinstitutionalization, the post-war 20th century witnessed an evolution of international child protections. The prevailing standard of “best interests of the child” (BIC) has been incorporated into domestic and international law doctrine and, not surprisingly, has been operationalized in a variety of ways. In recent years, the standard has been explored in the context of residential care institutions. Some advocates of deinstitutionalization assert that children should be reunified with biological relatives under all circumstances. Absolutes, however, are legally precarious and may be practically inconsistent with the BIC standard that practitioners and policymakers are required to acquiesce. In the current essay, the history of international child protection legislation is explored, and the BIC standard is assessed in the context of Armenia's social system. I evaluate Armenia's child protection obligations and conclude that the BIC standard may not always trigger deinstitutionalization and family reunification. Implications for international human rights law and the global child protection movement are assessed.
María del Pilar Zambrano, et al. Unborn Human Life and Fundamental Rights : Leading Constitutional Cases Under Scrutiny. Peter Lang (2019)
This book presents a collection of studies by top scholars on leading cases from twelve different jurisdictions defining the legal status of unborn human life. The cases under study pertain to three distinctive cultural and constitutional systems: Latin American Constitutional Courts and the Inter-American Court of Human Rights, European Constitutional Courts and the European Court on Human Rights, as well as Common Law jurisdictions. With a special conclusion by Professor John Finnis, drawing together the many treads of the individual chapters into a comprehensive whole, this book lays the basis for further comparative study of the legal and moral reasoning underlying judicial decisions which either recognize or deny legal personhood and/or equal dignity to unborn human beings.
Alberto L. Zuppi, Acting As Private Prosecutor in the Amia Case, 26 Sw. J. Int'l L. 83 (2020)
When considering, generally, the lack of proper investigation and oversight of the AMIA case by the Argentine system, it is not surprising that the death of Nisman has yet to be resolved. If the AMIA case can be offered as an example of disgraceful investigation, Nisman's murder clearly presses the issue to new limits. A horde of policemen, firemen, and supposed investigators arrived at the crime scene without any procedures to prevent the contamination of evidence. They walked all over the carpeted apartment, stood in a pool of blood, cleaned the gun, and handled objects without gloves. They completely destroyed the crime scene.133 Similar to the failed investigation of the AMIA bombing, *122 one can assume that the failed investigation of Nisman's death was the result of pure negligence, or perhaps something more sordid than appearances suggest. Let us hope that Nisman's case will receive, at the very least, a Private Prosecutor fit to handle the task. Further, let us hope that we learned at least one thing from the AMIA case, of how the criminal system can truly benefit with active participation from the victims and their representatives in an investigation.134
