The 2007–2008 food crisis was characterized by a sharp increase in world prices for major agricultural commodities, including wheat, rice, maize, and oilseed crops.1 Prices for staple commodities reached their highest point in nearly three decades, leading to riots and political protests in more than thirty countries.2 Increases in food prices up to the first quarter of 2008 pushed an additional 100 million people into poverty and eliminated almost seven years of progress in long-term poverty reduction.3 Compiled in 2010, Food Crises and the WTO provides a comprehensive account of the 2008 crisis, including an analysis of the event’s causes, consequences, and potential responses. The work focuses specifically on the relationship between food price shocks and the multilateral trading system in the context of economic development, trade regulation, technology policy, and environmental sustainability. Edited by Baris Karapinar and Christian Häberli, Food Crises is divided into two thematic sections. The first section is composed of five chapters concerning the structural and cyclical causes of the 2008 crisis as well as its impact on food security and poverty. Section one also provides a comparative analysis of the 2008 spike and those occurring in years past. The second section addresses the role of international trade and the World Trade Organization (WTO) in regulating and responding to the 2008 crisis, the empirical impact of the multilateral trading system on agricultural markets, and the trading system’s potential for improving food access. Section two also offers an initial assessment of the Doha Development Agenda (DDA) in light of the results of the WTO Ministerial Conference, covers applicable WTO doctrine
{"title":"Review of Food Crises and the WTO by Baris Karapinar and Christian Häberli (Eds.)","authors":"K. Bowen","doi":"10.15779/Z389S85","DOIUrl":"https://doi.org/10.15779/Z389S85","url":null,"abstract":"The 2007–2008 food crisis was characterized by a sharp increase in world prices for major agricultural commodities, including wheat, rice, maize, and oilseed crops.1 Prices for staple commodities reached their highest point in nearly three decades, leading to riots and political protests in more than thirty countries.2 Increases in food prices up to the first quarter of 2008 pushed an additional 100 million people into poverty and eliminated almost seven years of progress in long-term poverty reduction.3 Compiled in 2010, Food Crises and the WTO provides a comprehensive account of the 2008 crisis, including an analysis of the event’s causes, consequences, and potential responses. The work focuses specifically on the relationship between food price shocks and the multilateral trading system in the context of economic development, trade regulation, technology policy, and environmental sustainability. Edited by Baris Karapinar and Christian Häberli, Food Crises is divided into two thematic sections. The first section is composed of five chapters concerning the structural and cyclical causes of the 2008 crisis as well as its impact on food security and poverty. Section one also provides a comparative analysis of the 2008 spike and those occurring in years past. The second section addresses the role of international trade and the World Trade Organization (WTO) in regulating and responding to the 2008 crisis, the empirical impact of the multilateral trading system on agricultural markets, and the trading system’s potential for improving food access. Section two also offers an initial assessment of the Doha Development Agenda (DDA) in light of the results of the WTO Ministerial Conference, covers applicable WTO doctrine","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133137150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA in 1980, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear - until recently. A federal district court ruled against the Department of Defense (DoD) in Dugong v. Gates, a case involving the relocation of a U.S. military base in Okinawa - and in which the court broadly interpreted the NHPA to protect a wild animal in the sovereign territory of Japan. The decision downplayed foreign policy considerations that have historically constrained U.S. courts from adjudicating cases in other sovereign nations. It stands in sharp contrast to the traditional role of the judiciary exercising caution in cases affecting foreign relations when looking to apply U.S. laws overseas, most recently reaffirmed in the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Company. After Dugong, the NHPA may no longer be considered as a mere domestic statute protecting historic physical properties within the confines of the United States. Instead, the NHPA stands alone as a statute protecting the human environment held to apply in another sovereign nation’s territory. Dugong, a district court opinion, has little precedential force in its own right - but its broad application of the NHPA could have significant consequences for the U.S. military if more widely adopted. And it is of increased importance as a plausible vehicle to litigate extraterritorial environmental claims in light of the limited jurisdiction of other U.S. environmental statutes and the Court’s ruling in Kiobel limiting the Alien Tort Statute’s extraterritorial application. Further, the U.S. military has a growing footprint in Asia, including to countries whose historic registers, like Japan’s, provide broad protections to wildlife and cultural resources. The article surveys American historic preservation law and explains how the NHPA evolved organically from - and should be viewed in the context of - that broader preservation tradition. As the NHPA’s scope and jurisdiction are effectively unfastened from its initial beginnings, this article concludes by arguing that Congress should re-anchor the NHPA and clarify its proper scope and jurisdiction, thereby mitigating any broader foreign relations impacts.
{"title":"The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?","authors":"M. Nevitt","doi":"10.15779/Z38FM1R","DOIUrl":"https://doi.org/10.15779/Z38FM1R","url":null,"abstract":"The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA in 1980, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear - until recently. A federal district court ruled against the Department of Defense (DoD) in Dugong v. Gates, a case involving the relocation of a U.S. military base in Okinawa - and in which the court broadly interpreted the NHPA to protect a wild animal in the sovereign territory of Japan. The decision downplayed foreign policy considerations that have historically constrained U.S. courts from adjudicating cases in other sovereign nations. It stands in sharp contrast to the traditional role of the judiciary exercising caution in cases affecting foreign relations when looking to apply U.S. laws overseas, most recently reaffirmed in the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Company. After Dugong, the NHPA may no longer be considered as a mere domestic statute protecting historic physical properties within the confines of the United States. Instead, the NHPA stands alone as a statute protecting the human environment held to apply in another sovereign nation’s territory. Dugong, a district court opinion, has little precedential force in its own right - but its broad application of the NHPA could have significant consequences for the U.S. military if more widely adopted. And it is of increased importance as a plausible vehicle to litigate extraterritorial environmental claims in light of the limited jurisdiction of other U.S. environmental statutes and the Court’s ruling in Kiobel limiting the Alien Tort Statute’s extraterritorial application. Further, the U.S. military has a growing footprint in Asia, including to countries whose historic registers, like Japan’s, provide broad protections to wildlife and cultural resources. The article surveys American historic preservation law and explains how the NHPA evolved organically from - and should be viewed in the context of - that broader preservation tradition. As the NHPA’s scope and jurisdiction are effectively unfastened from its initial beginnings, this article concludes by arguing that Congress should re-anchor the NHPA and clarify its proper scope and jurisdiction, thereby mitigating any broader foreign relations impacts.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131008942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A peculiar construction boom is in progress worldwide: border walls are being installed at an unprecedented rate in order to control unwanted immigration by poor people into wealthy countries. This paper asks why, almost a quarter of a century after the Iron Curtain came down, the walls are now going up again. It provides a provocative answer: I suggest that these separation barriers are a logical response of states to the way in which human rights law has been enforced in cases bearing on immigration. In other words, and counter-intuitively, the recent boom in border wall construction signals the success of the human rights tradition, rather than its failure to establish an alternative to territorial sovereignty.Next, I use the case study of walls to make a larger point on the intractability of the human rights regime that bears on immigration. Building on a systematic analysis of jurisprudence, the paper argues that human rights courts and quasi-judicial bodies utilize an arbitrary category – territory – to balance the policy interests of the individual non-national and the state. The result is essentially random from the perspective of both these stake holders. Walls make concrete a perverse side effect of this compromise: because the regime conflates access with territory, it disproportionately rewards strong young men who already have sufficient capacity (in age, gender, or resources) to scale the barrier, even if their predicament may not actually call for protection. But it privileges them only after they have risked themselves, and if they survive that risk. And so, at least when it comes to immigration, the human rights regime operates in effect as a natural selection mechanism. This is fundamentally unstable and unjust.
{"title":"Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls","authors":"Moria Paz","doi":"10.2139/SSRN.2526521","DOIUrl":"https://doi.org/10.2139/SSRN.2526521","url":null,"abstract":"A peculiar construction boom is in progress worldwide: border walls are being installed at an unprecedented rate in order to control unwanted immigration by poor people into wealthy countries. This paper asks why, almost a quarter of a century after the Iron Curtain came down, the walls are now going up again. It provides a provocative answer: I suggest that these separation barriers are a logical response of states to the way in which human rights law has been enforced in cases bearing on immigration. In other words, and counter-intuitively, the recent boom in border wall construction signals the success of the human rights tradition, rather than its failure to establish an alternative to territorial sovereignty.Next, I use the case study of walls to make a larger point on the intractability of the human rights regime that bears on immigration. Building on a systematic analysis of jurisprudence, the paper argues that human rights courts and quasi-judicial bodies utilize an arbitrary category – territory – to balance the policy interests of the individual non-national and the state. The result is essentially random from the perspective of both these stake holders. Walls make concrete a perverse side effect of this compromise: because the regime conflates access with territory, it disproportionately rewards strong young men who already have sufficient capacity (in age, gender, or resources) to scale the barrier, even if their predicament may not actually call for protection. But it privileges them only after they have risked themselves, and if they survive that risk. And so, at least when it comes to immigration, the human rights regime operates in effect as a natural selection mechanism. This is fundamentally unstable and unjust.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133608428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay offers a sketch of the author's political theory of international courts and tribunals. First, it suggests two basic distinctions between types of international tribunals. Second, an overview of selected political science literature is provided to introduce a more expanded view of the function of international courts. Third, the essay provides a sketch of the bounded strategic space theory as a means for understanding and explaining international courts and tribunals.
{"title":"Towards a Political Theory of International Courts and Tribunals","authors":"David D. Caron","doi":"10.15779/Z38BM09","DOIUrl":"https://doi.org/10.15779/Z38BM09","url":null,"abstract":"This essay offers a sketch of the author's political theory of international courts and tribunals. First, it suggests two basic distinctions between types of international tribunals. Second, an overview of selected political science literature is provided to introduce a more expanded view of the function of international courts. Third, the essay provides a sketch of the bounded strategic space theory as a means for understanding and explaining international courts and tribunals.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123933534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines one-year of publicly available criminal judgments from one basic-level rural county court and one intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting state interests, harshly while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Likewise, settlement plays a role in resolving even serious crimes, at times appearing to make the difference between life and death for criminal defendants. My account of ordinary cases in China contrasts with most western accounts of the Chinese criminal justice system, which focus on sensational cases of injustice and the prevalence of harsh punishments.The evidence I present provides insight into the roles being played by the Chinese criminal justice system and the functions of courts in that system. This article also provides empirical evidence that contributes to debates on a range of other issues, including the relationship of formal law to community norms in Chinese criminal justice, the roles of witnesses and lawyers, the function of appellate review, and how system confronts and handles a range of high profile topics. My findings also contribute to literature on courts in authoritarian regimes and the evolution of authoritarian transparency. This article provides a base for discussing the future of empirical research on Chinese court judgments, demonstrating that there is much to learn from the vast volume of cases that have in recent years become publicly available in China.
{"title":"Leniency in Chinese Criminal Law? Everyday Justice in Henan","authors":"B. Liebman","doi":"10.7916/D8DZ07ZV","DOIUrl":"https://doi.org/10.7916/D8DZ07ZV","url":null,"abstract":"This article examines one-year of publicly available criminal judgments from one basic-level rural county court and one intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting state interests, harshly while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Likewise, settlement plays a role in resolving even serious crimes, at times appearing to make the difference between life and death for criminal defendants. My account of ordinary cases in China contrasts with most western accounts of the Chinese criminal justice system, which focus on sensational cases of injustice and the prevalence of harsh punishments.The evidence I present provides insight into the roles being played by the Chinese criminal justice system and the functions of courts in that system. This article also provides empirical evidence that contributes to debates on a range of other issues, including the relationship of formal law to community norms in Chinese criminal justice, the roles of witnesses and lawyers, the function of appellate review, and how system confronts and handles a range of high profile topics. My findings also contribute to literature on courts in authoritarian regimes and the evolution of authoritarian transparency. This article provides a base for discussing the future of empirical research on Chinese court judgments, demonstrating that there is much to learn from the vast volume of cases that have in recent years become publicly available in China.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124667006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, we explore a plausible legal framework within which to ground a support model of legal capacity and fully replace regimes of substituted decision-making. We ground our argument in the lived experience of people labeled with a disability. We focus particularly on individuals with cognitive disabilities, as they are generally more likely to have their decision-making ability called into question, and consequently, to have their legal capacity denied. However, we claim that such a system of support will ultimately benefit all individuals, not just persons with disabilities. The Article further examines reform efforts underway and the contributions of legislative change and judicial activism. Since the entry into force of the CRPD, many countries have begun to reform their laws on legal capacity, as described below in Section III. While significant challenges remain to ensure the full replacement of substitute decision-making regimes, international developments described in Sections III and IV, are clearly trending towards the recognition of support to exercise legal capacity.
{"title":"The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?","authors":"Eilionóir Flynn, Anna Arstein-Kerslake","doi":"10.15779/Z38494G","DOIUrl":"https://doi.org/10.15779/Z38494G","url":null,"abstract":"In this Article, we explore a plausible legal framework within which to ground a support model of legal capacity and fully replace regimes of substituted decision-making. We ground our argument in the lived experience of people labeled with a disability. We focus particularly on individuals with cognitive disabilities, as they are generally more likely to have their decision-making ability called into question, and consequently, to have their legal capacity denied. However, we claim that such a system of support will ultimately benefit all individuals, not just persons with disabilities. The Article further examines reform efforts underway and the contributions of legislative change and judicial activism. Since the entry into force of the CRPD, many countries have begun to reform their laws on legal capacity, as described below in Section III. While significant challenges remain to ensure the full replacement of substitute decision-making regimes, international developments described in Sections III and IV, are clearly trending towards the recognition of support to exercise legal capacity.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121892944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article focuses on the right to truth and its interaction with the duty to bring perpetrators to justice following a period of gross violations of international human rights law and serious violations of international humanitarian law. It explores how truth-finding and criminal justice programs interact, and how States can most comprehensively satisfy their obligations with regard to the right to truth and the duty to bring perpetrators to justice, given the raft of practical limitations that a State may face in periods of political transition. The Article argues that even when a State is able to carry out prosecutions, it is likely obliged to look for additional strategies, including truth commissions, to more comprehensively fulfill its international human rights obligations. Additionally, where an exhaustive suite of prosecutions is not feasible in the short term, truth commissions and other transitional justice mechanisms can be employed to commence the fulfillment of the right to truth, though these should be implemented with a view to proceeding to thorough criminal justice processes as soon as the State’s political context permits.
{"title":"Searching for the Right to Truth: The Impact of International Human Rights Law on National Transitional Justice Policies","authors":"Sam Szoke-Burke","doi":"10.15779/Z38Z57G","DOIUrl":"https://doi.org/10.15779/Z38Z57G","url":null,"abstract":"This Article focuses on the right to truth and its interaction with the duty to bring perpetrators to justice following a period of gross violations of international human rights law and serious violations of international humanitarian law. It explores how truth-finding and criminal justice programs interact, and how States can most comprehensively satisfy their obligations with regard to the right to truth and the duty to bring perpetrators to justice, given the raft of practical limitations that a State may face in periods of political transition. The Article argues that even when a State is able to carry out prosecutions, it is likely obliged to look for additional strategies, including truth commissions, to more comprehensively fulfill its international human rights obligations. Additionally, where an exhaustive suite of prosecutions is not feasible in the short term, truth commissions and other transitional justice mechanisms can be employed to commence the fulfillment of the right to truth, though these should be implemented with a view to proceeding to thorough criminal justice processes as soon as the State’s political context permits.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125654630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.
{"title":"International Law and Institutions and the American Constitution in War and Peace","authors":"Thomas H. Lee","doi":"10.15779/Z38JH22","DOIUrl":"https://doi.org/10.15779/Z38JH22","url":null,"abstract":"This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122816457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While Article VI of the US Constitution establishes treaties as supreme federal law, scholars and lawmakers have historically doubted that state judges will enforce the United State’s international obligations when they conflict with important state interests. The Hague Convention on the Civil Aspects of International Child Abduction, codified in US law as the International Child Abduction Remedies Act (ICARA), is the first major family law treaty ratified by the United States. Its provisions are regularly enforced by both federal and state courts. Notwithstanding the relationship of the treaty to important state interests like the integrity of family court systems, financial and social support for families and minors, and the substantive law of marriage and divorce, there is general convergence between federal and state judges on the applicability of the convention and certain exceptions authorized by the treaty. Several federal district courts, acknowledging these state and federal interests in efficacious adjudication of treaty claims, have abstained from hearing ICARA applications in favor of state proceedings. Federal appellate courts, however, have been overwhelmingly hostile to these abstention decisions, citing the role of federal courts in upholding the United State’s international commitments. The Article argues that federal appellate courts have largely ignored the jurisdictional plan designed by Congress in favor of an implied Article III power to enforce treaties, and recommends changes for both ICARA and additional family law treaties the United States is now preparing to join.
{"title":"Abstention, Parity, and Treaty Rights: How Federal Courts Regulate Jurisdiction Under the Hague Convention on the Civil Aspects of International Child Abduction","authors":"Sam Halabi","doi":"10.15779/Z380M18","DOIUrl":"https://doi.org/10.15779/Z380M18","url":null,"abstract":"While Article VI of the US Constitution establishes treaties as supreme federal law, scholars and lawmakers have historically doubted that state judges will enforce the United State’s international obligations when they conflict with important state interests. The Hague Convention on the Civil Aspects of International Child Abduction, codified in US law as the International Child Abduction Remedies Act (ICARA), is the first major family law treaty ratified by the United States. Its provisions are regularly enforced by both federal and state courts. Notwithstanding the relationship of the treaty to important state interests like the integrity of family court systems, financial and social support for families and minors, and the substantive law of marriage and divorce, there is general convergence between federal and state judges on the applicability of the convention and certain exceptions authorized by the treaty. Several federal district courts, acknowledging these state and federal interests in efficacious adjudication of treaty claims, have abstained from hearing ICARA applications in favor of state proceedings. Federal appellate courts, however, have been overwhelmingly hostile to these abstention decisions, citing the role of federal courts in upholding the United State’s international commitments. The Article argues that federal appellate courts have largely ignored the jurisdictional plan designed by Congress in favor of an implied Article III power to enforce treaties, and recommends changes for both ICARA and additional family law treaties the United States is now preparing to join.","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126642055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transnational practitioners and litigants are bound to encounter at least one case that will require the recognition and enforcement of either a U.S. court judgment1 abroad, or a foreign court judgment in the United States.2 Upon encountering this situation, these parties may be interested to learn that while the United States has been a signatory of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards3 (“New York Convention”) since 1970, it is not currently party to any international treaty for
{"title":"The Law on Recognition and Enforcement of Foreign Judgments: Is It Broken and How Do We Fix It?","authors":"Yuliya Zeynalova","doi":"10.15779/Z382H27","DOIUrl":"https://doi.org/10.15779/Z382H27","url":null,"abstract":"Transnational practitioners and litigants are bound to encounter at least one case that will require the recognition and enforcement of either a U.S. court judgment1 abroad, or a foreign court judgment in the United States.2 Upon encountering this situation, these parties may be interested to learn that while the United States has been a signatory of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards3 (“New York Convention”) since 1970, it is not currently party to any international treaty for","PeriodicalId":325917,"journal":{"name":"Berkeley Journal of International Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121259912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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