The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.
LAW & SOCIETY: INTERNATIONAL & COMPARATIVE LAW eJOURNAL
Sponsored by: Indiana University Maurer School of Law
"The Jurisdictional Filters of the HCCH 2019 Judgments Convention"
Yearbook of Private International Law, Volume 21 (2019/2020)
MATTHIAS WELLER, University of Bonn
On 2 July 2019, the Delegates of the 22nd Diplomatic Session of the Hague Conference on Private International Law (HCCH) adopted, after decades of preparatory work, the “HCCH 2019 Judgments Convention”. A central element of this Convention are the heads of indirect jurisdiction by which the rendering court’s international jurisdiction to adjudicate is controlled by the requested court before recognition and enforcement is granted as the result of the exequatur proceedings. These heads of indirect jurisdiction are widely called “jurisdictional filters”, since they filter out judgments based on unacceptable grounds of jurisdiction from passing through towards the common recognition and enforcement scheme of the Convention. These jurisdictional filters are laid down in Articles 5 and 6 of the Convention. After the HCCH has most recently restarted working on direct heads of jurisdiction (“the Jurisdiction Project”), structure and policy decisions of the new set of indirect heads of jurisdiction will have an influence on the shape of potential future heads of direct jurisdiction. Further, the jurisdictional filters of the HCCH 2019 Judgments Convention may well induce states to autonomously adapt their jurisdictional regime, be it Contracting States in regard to their regime of direct jurisdiction in order to synchronize it with the heads of indirect jurisdiction of the Convention to increase chances for recognition and enforcement, be it third states by autonomous harmonization according to the standards of the Convention without entering directly into treaty relations. Against this background, it appears appropriate to undertake efforts to better understand and analyze concepts and details of the jurisdictional filters of the HCCH 2019 Judgments Convention – the “heart” of the new Convention. Much of its chances for success, which in our opinion are good, will depend on it.
"21st-Century Refugees: Uncovering the Human Rights Gap"
[Vol. 24, Iss. 3, Article 3 (2021) / Washington College of Law Journal, Human Rights Brief]
J. MAURICIO GAONA, Harvard Law School, Institute for Global Law & Policy, McGill Centre for Human Rights (CHRLP)
The security and human rights risks that 21st-refugees encounter accross the world are present not merely in the countries they flee from, but also in the countries they pass through and, increasingly, in host countries. Yet, current refugee protection does not cover the latter. Drawing on a comparative legal analysis and on critical reflections of international treaty law, this Article both conceptualizes such risks and proposes a more comprenhensive refugee protection in future regulations. The Article argues that when the law no longer mirrors the purpose of its creation (protecting migrants) but rather the unintended reality of its moral decadence (targeting migrants), the law thereby conceived loses its social institutional role while becoming a tool of oppression. When such oppression, moreover, subjugates the human dignity of the most vulnerable population, the law becomes, in itself, the most powerful tool to foster human suffering. This, the Article finds, is an untenable human rights gap, which makes being a refugee in the 21st century the greatest risk of all.
"Chile: Compliance After ‘Kind’ Reminders"
Schönsteiner / Zúñiga, Chile: Compliance after 'kind' reminders, in: Grote / Morales / Paris (eds.) Research Handbook on Compliance in International Human Rights Law, Edward Elgar Publishing, Forthcoming
JUDITH SCHÖNSTEINER, Human Rights Centre Universidad Diego Portales
MARCELA ZÚÑIGA, affiliation not provided to SSRN
Chile has a quite positive record of compliance with decisions issued by the Inter-American Commission on Human Rights (IACmHR) and the Inter-American Court of Human Rights (IACtHR), despite the absence of a law on implementation. Nevertheless, several measures related to specific issues, namely amnesties, indigenous rights and military justice have not been implemented for years or even decades.
Chile has recently adopted its first National Human Rights Plan, based on the recommendations of UN treaty bodies, the Inter-American System, and its national human rights institution. This should help bringing national legislation and practice in line with international human rights law (IHRL) before the ‘kind’ reminder by an international judgment. Despite a comparatively good record of implementation of international judgments, the country also lacks a consistent and efficient mechanism to apply IHRL in its domestic judicial decisions, both in the judiciary and in the Constitutional Tribunal. There are challenges especially with regard to the correct interpretation of IHRL by national courts, while its use has increased in recent years.
Police violence during manifestations and riots after 18 October 2019 found strong criticism by international human rights bodies, with the IACmHR visiting Chile in January 2020. The report has not yet been issued. No precautionary measures were requested in the Inter- American System of Human Rights. Most claims on arbitrary detentions, inhuman treatment, torture, and disproportionate use of force are still pending in domestic tribunals or administrative justice.
"Retooling the Sustainability Standards in EU Free Trade Agreements"
Journal of International Economic Law
MARCO BRONCKERS, Leiden University - Leiden Law School
GIOVANNI GRUNI, ESADE Law School
The EU’s weak promotional policy towards sustainability in its free trade arguments is
up for revision. Labour and environmental standards need to be tightened. They were
given a boost on balance by a remarkable panel ruling of January 2021 in the longstanding
EU–Korea labour dispute. Compliance ought to be subject to regular dispute
settlement between governments. Sanctions must be added to the EU’s toolbox, going
beyond trade retaliation. Private stakeholders should become more involved in monitoring
and enforcement, both at the international and at the domestic level. All this will put
an extra responsibility on the EU and its Member States to protect their labour force and
the environment as well.
"Article 16 of the Ireland-Northern Ireland Protocol"
BILLY MELO ARAUJO, Queen's University Belfast
[enter Abstract Body]Article 16 of the Ireland-Northern Ireland Protocol (Protocol) annexed to the EU-UK Withdrawal Agreement (EU-UK WA) is an escape clause which allows the parties to deviate from their obligations under certain conditions. This paper maps out the main features of the safeguard provision in the Protocol in light of international trade law and international relations literature on treaty design.
"Codification, Consolidation, Restatement? How Best to Systemise the Modern Law of Tort"
(2021) 70 ICLQ 271–305
PROFESSOR PAULA GILIKER, University of Bristol
The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.
"Implementing the United Nations' Sustainable Development Goals in International Business"
Montiel. I., Cuervo-Cazurra, A., Park, J., Antolin-Lopez, R., Husted, B.W. 2021. Implementing the United Nations’ Sustainable Development Goals in International Business. Journal of International Business Studies (Forthcoming)
IVAN MONTIEL, Zicklin School of Business, Department of Management, Baruch College - The City University of New York
ALVARO CUERVO-CAZURRA, Northeastern University - Department of International Business and Strategy
JUNGHOON PARK, Zicklin School of Business, Baruch College - The City University of New York
RAQUEL ANTOLIN-LOPEZ, University of Almeria
BRYAN W. HUSTED, EGADE Business School/Tecnologico de Monterrey
Building on the concept of externalities, we propose an explanation of how multinationals can contribute to the enactment of the United Nations’ Sustainable Development Goals as part of their ordinary investments. First, we suggest grouping the 17 Sustainable Development Goals into six categories based on whether they increase positive externalities—knowledge, wealth, or health—or reduce negative externalities—the overuse of natural resources, harm to social cohesion, or overconsumption. Second, we propose placing these categories within an extended value chain to facilitate their implementation. Third, we argue that multinationals’ internal investments in host country subsidiaries to improve their competitiveness contribute to addressing externalities in host country communities, while external investments in host communities to solve underdevelopment generate competitiveness externalities on host country subsidiaries.
"Mega-Regional Trade Agreements: Analyzing their Impact on Treaty Policy and Law and their Modes of Dispute Resolution Mechanisms"
Alternative Dispute Resolution – Volume 8 Issue 2 (2020)
PETER M. MURIITHI, High Court & Supreme Court of Kenya
In the international arena, there is an emergence of a new type of trade agreements namely Mega-regional trade agreements. These mega-regional trade agreements are increasing in number and their unique characteristics have made them quite visible in any international trade agreement discourse. Their ability to challenge the status quo and displace the existing multilateral treaties on trade has made them relevant. An example is their adverse effect on the Agreement establishing the World Trade Organization a multilateral treaty on trades.
This discourse will seek to analyze, the impact of mega-regional trade agreements on treaty policy and law and the various modes of dispute resolution mechanisms that they have adopted.
Succinctly, the paper shall; give a brief introduction, analyze the impact of mega-regional trade agreements for treaty policy and law, analyze modes of dispute resolution mechanisms adopted by mega-regional trade agreements and lastly give a conclusion.
"The Right to a Healthy Environment and Climate Litigation: A Mutually Supportive Relation?"
PAU DE VILCHEZ MORAGUES, University of the Balearic Islands
ANNALISA SAVARESI, University Stirling, School of Law
The right to a healthy environment is recognised in the law of several states and in some regional treaties. Litigants all over the world have increasingly relied on this right to demand the protection of a host of environmental interests. This trend is expanding, and as of late has started to affect also climate litigation. This article scrutinises the extent to which the right to a healthy environment has been invoked in the growing body of human rights-based climate litigation. It provides an in-depth analysis of some of the most prominent domestic litigation cases that have occurred to date, with the aim to establish the extent to which the right to a healthy environment has furthered the prospects of applicants and, conversely, the extent to which climate litigation has bolstered the recognition of the right to a healthy environment.
"Indigenous Rights, Necropolitics and the 'Daily Genocides' of Brazil’s Native and Traditional Peoples"
Forthcoming in Tayson Ribeiro Teles (Ed.) "LÍNGUA(GENS), LITERATURAS, CULTURAS, IDENTIDADES E DIREITOS INDÍGENAS NO BRASIL". Bagai Editora, Brazil.
ERICK DA LUZ SCHERF, University of Stavanger, Department of Social Studies
MARCOS VINICIUS VIANA DA SILVA, Independent
JOS&EACUTE; EVERTON DA SILVA, University of Itajai Valley UNIVALI - Universidade do Vale do Itajaí
The main argument of this chapter is that the dangerous combination of neoconservatism (FORTES, 2016), neoliberal/necropolitical policies (DALL'ALBA et al., 2021), and the strengthening of the agribusiness lobby (IORIS, 2016) is leading to rights violations and the “daily genocides” of Indigenous peoples and traditional peoples and communities in Brazil, even though this sort of genocide may not be recognized by international law. To sustain our argument, we adopt Bartolomé Clavero’s (2011) definition of genocidios cotidianos (“daily genocides”) and apply it to the experience of the subjects under analysis. We also argue that the concept of “necropolitics”, coined by Achille Mbembe, is somewhat essential to understanding this type of violence.
"Shared Intent in a Collapsing Empire: Pan-Turkism as Mens Rea Evidence of Genocide Against Distinct Populations in the Late Ottoman Period"
30 Transnational Law & Contemporary Problems (Univ. Iowa) 29 (Winter 2021)
MICHAEL J. KELLY, Creighton University School of Law, American Bar Association, Business Law Section, American Society of International Law
Several mass atrocities were perpetrated by the government against distinct non-Muslim populations during the waning days of the Ottoman Empire. These occurred against the backdrop of Pan-Turkism – an aspect of the Young Turk Movement through the infamous Committee of Union and Progress, which began as a constitutional reform coalition seeking to curtail the absolute power of the sultan but progressively morphed into a replacement government stripped of its originally liberal democratic leanings. By promoting Turkishness over and above aities within the multi-ethnic empire, Pan-Turkism assumed many forms throughout this progression, including discrimination, persecution, exclusion, and ultimately, extermination. Which form it took depended on the context in which it was expressed (when, where, against whom, and by whom). This enquiry studies several instances of mass killings against non-Turks during the rise of the Young Turks and their consolidation of power within the collapsing Ottoman Empire to determine whether those atrocities qualify as genocide by in turn determining whether the associated expression of Pan-Turkism qualified as specific intent. In other words, can specific intent to commit genocide be inferred in the context of a movement that seeks to exclude rival populations?
About this eJournal
Sponsored by: Indiana University Maurer School of Law.
This area includes content focused on empirical or theoretical scholarship on international and compar