Pub Date : 2021-04-11DOI: 10.2979/INDJGLOLEGSTU.28.1.0101
Ioannis Kampourakis
Abstract:This article purports to show how the postmodern tenets of particularity, reflexivity, decentralization, and pluralism map on to current legal forms and structures of market regulation. This is the case in the regulatory paradigm of shaping markets "from within," the aspiration of which is to embed public and social values in the operations of private corporate actors, while expanding private corporate actors' regulatory authority and scope of self-governance. As the state attempts to harness the regulatory potential of the social sphere to impose sanctions for corporate misconduct, the role of the law becomes to facilitate the permeability of private institutional structures to the pressures of the market and civil society—in short, law relies on and seeks to facilitate societal self-regulation. This mutation of the function of law reifies the asymmetries of social power in legal arrangements, while it eventually weakens the role of democratic politics as the principle of social ordering. At the same time, such new forms of market regulation do not challenge the structural inequalities encased in the original institutional setup of public and private legal infrastructure and thus fail to reconstitute market dynamics. The article questions the potential of the postmodern focus on particularity and pluralism to provide normative orientation for socially transformative projects against the backdrop of diffused private power, eventually attempting to trace new directions of critique at the intersection of law and political economy.
{"title":"The Postmodern Legal Ordering of the Economy","authors":"Ioannis Kampourakis","doi":"10.2979/INDJGLOLEGSTU.28.1.0101","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.28.1.0101","url":null,"abstract":"Abstract:This article purports to show how the postmodern tenets of particularity, reflexivity, decentralization, and pluralism map on to current legal forms and structures of market regulation. This is the case in the regulatory paradigm of shaping markets \"from within,\" the aspiration of which is to embed public and social values in the operations of private corporate actors, while expanding private corporate actors' regulatory authority and scope of self-governance. As the state attempts to harness the regulatory potential of the social sphere to impose sanctions for corporate misconduct, the role of the law becomes to facilitate the permeability of private institutional structures to the pressures of the market and civil society—in short, law relies on and seeks to facilitate societal self-regulation. This mutation of the function of law reifies the asymmetries of social power in legal arrangements, while it eventually weakens the role of democratic politics as the principle of social ordering. At the same time, such new forms of market regulation do not challenge the structural inequalities encased in the original institutional setup of public and private legal infrastructure and thus fail to reconstitute market dynamics. The article questions the potential of the postmodern focus on particularity and pluralism to provide normative orientation for socially transformative projects against the backdrop of diffused private power, eventually attempting to trace new directions of critique at the intersection of law and political economy.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"28 1","pages":"101 - 152"},"PeriodicalIF":0.0,"publicationDate":"2021-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47584362","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}
Pub Date : 2021-04-11DOI: 10.2979/INDJGLOLEGSTU.28.1.0377
Hughie Kellner
Abstract:Globalization has reduced barriers to trade, communication, and understanding, opening opportunities that extend far beyond national borders. However, in this bounty of opportunity lie obligations, and often those obligations tie a nation's hands when trying to deal with a problem that arises. One obligation nations face is upholding the United Nations' (UN) decision to prevent the illicit use of cannabis. Another is supporting and following the World Trade Organization's (WTO) near elimination of barriers for companies to bring patent and trademark protection with them into any country they do business with. In a modern globalized economy, if a nation fails to uphold the obligations of one agreement, the consequences spill over into the network of obligations upheld by other nations.The rising cannabis industry is a pristine example of this obligatory burden. Canada broke the UN Single Convention on Narcotic Drugs ("Single Convention"), establishing a recreational cannabis industry that rocketed into financial success. The countries that uphold the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), except Canada, now bear the burden of Canada's decision. That obligation has grown so great that other countries may find following Canada's financial success requires shirking the monopolistic rights the WTO mandates; otherwise, they risk becoming a playground for Canadian companies seeking to globalize.This note attempts to provide a solution to these conflicting obligations by proposing a temporary obligation realignment. By proposing a temporal exception to patent enforcement, the WTO TRIPS Agreement can be amended, as minimally as possible, to conform with the obligations cast upon the rest of the world when Canada sluffed its.
{"title":"Mitigating the Effects of Intellectual Property Colonialism on Budding Cannabis Markets","authors":"Hughie Kellner","doi":"10.2979/INDJGLOLEGSTU.28.1.0377","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.28.1.0377","url":null,"abstract":"Abstract:Globalization has reduced barriers to trade, communication, and understanding, opening opportunities that extend far beyond national borders. However, in this bounty of opportunity lie obligations, and often those obligations tie a nation's hands when trying to deal with a problem that arises. One obligation nations face is upholding the United Nations' (UN) decision to prevent the illicit use of cannabis. Another is supporting and following the World Trade Organization's (WTO) near elimination of barriers for companies to bring patent and trademark protection with them into any country they do business with. In a modern globalized economy, if a nation fails to uphold the obligations of one agreement, the consequences spill over into the network of obligations upheld by other nations.The rising cannabis industry is a pristine example of this obligatory burden. Canada broke the UN Single Convention on Narcotic Drugs (\"Single Convention\"), establishing a recreational cannabis industry that rocketed into financial success. The countries that uphold the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), except Canada, now bear the burden of Canada's decision. That obligation has grown so great that other countries may find following Canada's financial success requires shirking the monopolistic rights the WTO mandates; otherwise, they risk becoming a playground for Canadian companies seeking to globalize.This note attempts to provide a solution to these conflicting obligations by proposing a temporary obligation realignment. By proposing a temporal exception to patent enforcement, the WTO TRIPS Agreement can be amended, as minimally as possible, to conform with the obligations cast upon the rest of the world when Canada sluffed its.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"28 1","pages":"377 - 404"},"PeriodicalIF":0.0,"publicationDate":"2021-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42382440","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}
Pub Date : 2021-04-11DOI: 10.2979/INDJGLOLEGSTU.28.1.0231
Thekkel
Abstract:Indian corporate law now permits both inbound and outbound cross-border mergers. Since India broadly follows the incorporation theory, it is now possible that the country could be part of a market for incorporation/reincorporation consisting of countries following similar corporate laws. But India, like most other big countries, does not have the right incentives to develop itself as a serious player in such a market. Overall, with the current set of incentives and laws, India is unlikely to emerge as a reincorporation destination.While permitting cross-border mergers, the Indian law envisages that merger schemes may provide for issuing depository receipts to the merging companies' foreign shareholders to address their concerns. However, attempting to extend Indian securities law to the resultant foreign companies through depository receipts will be onerous, and it would amount to dilution of the incorporation theory that India follows. As a result, it will make a cross-border merger less attractive for the directors. Further, Indian foreign exchange laws put excessive restrictions on the merging companies so that the companies will find cross-border mergers neither desirable nor viable.Both the US and EU experiences would show that a jurisdiction's approach towards takeover defenses influences the promoters' decision on where to incorporate their companies. A jurisdiction that affords more options to defend hostile takeover tends to be the choice of company promoters. Although it does not matter to controlled companies seeking to reincorporate in another jurisdiction, it can be a serious consideration if the promoters do not have a controlling stake. Similarly, the availability of takeover defenses will influence mergers in which the stake of the controllers undergoes dilution. Because India is a country that does not offer any takeover defenses, in a cross-border merger, the dominant tendency of those promoters who do not have a controlling stake would be to avoid India as a destination jurisdiction.
{"title":"Cross-Border Mergers: Is India Ready? Lessons from the United States and European Union","authors":"Thekkel","doi":"10.2979/INDJGLOLEGSTU.28.1.0231","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.28.1.0231","url":null,"abstract":"Abstract:Indian corporate law now permits both inbound and outbound cross-border mergers. Since India broadly follows the incorporation theory, it is now possible that the country could be part of a market for incorporation/reincorporation consisting of countries following similar corporate laws. But India, like most other big countries, does not have the right incentives to develop itself as a serious player in such a market. Overall, with the current set of incentives and laws, India is unlikely to emerge as a reincorporation destination.While permitting cross-border mergers, the Indian law envisages that merger schemes may provide for issuing depository receipts to the merging companies' foreign shareholders to address their concerns. However, attempting to extend Indian securities law to the resultant foreign companies through depository receipts will be onerous, and it would amount to dilution of the incorporation theory that India follows. As a result, it will make a cross-border merger less attractive for the directors. Further, Indian foreign exchange laws put excessive restrictions on the merging companies so that the companies will find cross-border mergers neither desirable nor viable.Both the US and EU experiences would show that a jurisdiction's approach towards takeover defenses influences the promoters' decision on where to incorporate their companies. A jurisdiction that affords more options to defend hostile takeover tends to be the choice of company promoters. Although it does not matter to controlled companies seeking to reincorporate in another jurisdiction, it can be a serious consideration if the promoters do not have a controlling stake. Similarly, the availability of takeover defenses will influence mergers in which the stake of the controllers undergoes dilution. Because India is a country that does not offer any takeover defenses, in a cross-border merger, the dominant tendency of those promoters who do not have a controlling stake would be to avoid India as a destination jurisdiction.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"28 1","pages":"231 - 291"},"PeriodicalIF":0.0,"publicationDate":"2021-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45283274","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}
Pub Date : 2021-04-11DOI: 10.2979/INDJGLOLEGSTU.28.1.0349
Clara Gutwein
{"title":"Penises, Nipples, and Bums, Oh My!: An Examination of How Freedom of Expression Applies to Public Nudity","authors":"Clara Gutwein","doi":"10.2979/INDJGLOLEGSTU.28.1.0349","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.28.1.0349","url":null,"abstract":"","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"28 1","pages":"349 - 376"},"PeriodicalIF":0.0,"publicationDate":"2021-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42342294","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}
Pub Date : 2021-04-11DOI: 10.2979/INDJGLOLEGSTU.28.1.0001
Victoria Barnes, E. Whewell
Abstract:This article adds to the biographic "turn" in legal studies. While there is a large body of scholarship examining judges in the United States and the United Kingdom, comparatively little is written on their legal counterparts in the common law world. What can judicial biographies offer for comparative law? Do these studies generate useful information about the movement of law? What can be gained by a better awareness of the lives of those at the top of the colonial legal profession? This article shows that within the common law world, judges, like those in the United States and the United Kingdom, were central figures in the administration of justice and in the colonial socio-political elite. Biographical studies are even more important in understanding the way law moved through the British Empire because the backgrounds of these figures shaped their ability to deal with new social groups and diverse societies, and to create pluralistic solutions to legal problems. As colonial judges had to be geographically mobile to move through the British Empire, they possessed transnational careers and accumulated experiences from different common law based legal systems. Through their role as colonial adjudicators, judges influenced the world around them, in part, due to their experiences and socialization. We argue that judicial biographies provide a new way to see the way law moved across colonial and imperial jurisdictions.
{"title":"Judicial Biography in the British Empire","authors":"Victoria Barnes, E. Whewell","doi":"10.2979/INDJGLOLEGSTU.28.1.0001","DOIUrl":"https://doi.org/10.2979/INDJGLOLEGSTU.28.1.0001","url":null,"abstract":"Abstract:This article adds to the biographic \"turn\" in legal studies. While there is a large body of scholarship examining judges in the United States and the United Kingdom, comparatively little is written on their legal counterparts in the common law world. What can judicial biographies offer for comparative law? Do these studies generate useful information about the movement of law? What can be gained by a better awareness of the lives of those at the top of the colonial legal profession? This article shows that within the common law world, judges, like those in the United States and the United Kingdom, were central figures in the administration of justice and in the colonial socio-political elite. Biographical studies are even more important in understanding the way law moved through the British Empire because the backgrounds of these figures shaped their ability to deal with new social groups and diverse societies, and to create pluralistic solutions to legal problems. As colonial judges had to be geographically mobile to move through the British Empire, they possessed transnational careers and accumulated experiences from different common law based legal systems. Through their role as colonial adjudicators, judges influenced the world around them, in part, due to their experiences and socialization. We argue that judicial biographies provide a new way to see the way law moved across colonial and imperial jurisdictions.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"28 1","pages":"1 - 27"},"PeriodicalIF":0.0,"publicationDate":"2021-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48642599","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}
Abstract:Based on the analysis of the online profiles of 205 BRI Talent Bank lawyers as accredited by China’s national bar association, this article generates important empirical knowledge about the approaches and processes that a nation-state may use in directing the internationalization of legal professionals. In addition to designing the general roadmap and offering broad incentives, the state has demonstrated a much more hands-on approach. By collecting the so-called “state-adjacent” lawyers and commissioning them to take some concrete first steps stipulated in the roadmap, the Chinese state effectively envisions them as role models for other lawyers to follow to ensure that its policy goals regarding the BRI are achieved in the Chinese legal profession. Such vision, however, is not very well-realized which is particularly evidenced by the zero-accession rate of Talent Bank law firms into the state-led BRI Lawyers Association initiative. These findings reaffirm that Chinese lawyers are calculative and pragmatic entrepreneurs who know how to strike the balance between winning legitimacy from the state and pursuing their own internationalization trajectories based on their own needs and competence. Perhaps contrary to the expectations of the state, such an image does not seem to change much even regarding a group of lawyers that have close ties with and/or hold official approvals from the state.
{"title":"State Leadership vs. Lawyers’ Entrepreneurship: The Globalization Trajectories of Chinese Legal Professionals Under the Belt & Road Initiative","authors":"Jing Li","doi":"10.2139/ssrn.3753501","DOIUrl":"https://doi.org/10.2139/ssrn.3753501","url":null,"abstract":"Abstract:Based on the analysis of the online profiles of 205 BRI Talent Bank lawyers as accredited by China’s national bar association, this article generates important empirical knowledge about the approaches and processes that a nation-state may use in directing the internationalization of legal professionals. In addition to designing the general roadmap and offering broad incentives, the state has demonstrated a much more hands-on approach. By collecting the so-called “state-adjacent” lawyers and commissioning them to take some concrete first steps stipulated in the roadmap, the Chinese state effectively envisions them as role models for other lawyers to follow to ensure that its policy goals regarding the BRI are achieved in the Chinese legal profession. Such vision, however, is not very well-realized which is particularly evidenced by the zero-accession rate of Talent Bank law firms into the state-led BRI Lawyers Association initiative. These findings reaffirm that Chinese lawyers are calculative and pragmatic entrepreneurs who know how to strike the balance between winning legitimacy from the state and pursuing their own internationalization trajectories based on their own needs and competence. Perhaps contrary to the expectations of the state, such an image does not seem to change much even regarding a group of lawyers that have close ties with and/or hold official approvals from the state.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"29 1","pages":"130 - 85"},"PeriodicalIF":0.0,"publicationDate":"2020-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49242126","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}
Pub Date : 2020-06-25DOI: 10.2979/indjglolegstu.27.1.0035
Amnon Lev
Equality before the law is an axiom of public law, perhaps the most fundamental public law axiom of all. Our commitment to this equality is deepened by the knowledge that it does not map perfectly onto social reality. Because people are not equal in rank and privilege, precisely because they are not afforded the same opportunities, or rather the same opportunity to take advantage of opportunity, we must provide equal access to justice for those that lack a voice in society: the poor, the marginalized, the “deviants.” Seen in that perspective, access to justice is an unconditional good. In this paper I shall attempt to nuance that belief by showing that, in addition to making us equal before the law, public law systems generate precarity. Public law systems do so by distributing access to justice in ways that make certain groups in society easy prey for those more powerful than themselves. The most obvious implications of the argument concern the constitutional sphere. But its most momentous implications may show themselves beyond that sphere. As the idea of the rule of law spreads around the world, driven by governance reforms and by the efforts of human rights advocates, the mechanisms of inand exclusion that underpin the operation of public law spread with it, reproducing on a global scale the social dynamics that generate inequality within the polities that law orders. As we shall see, public law may be one of the links that tie the relative deprivation we encounter in the West to the absolute deprivation suffered by millions in other parts of the world.1 If we want to determine how the machine of public law works in generating precarity, we need first to understand how the machine is wired. That is no easy task. The machine was not built from one
{"title":"Public Law, Precarity, and Access to Justice","authors":"Amnon Lev","doi":"10.2979/indjglolegstu.27.1.0035","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.1.0035","url":null,"abstract":"Equality before the law is an axiom of public law, perhaps the most fundamental public law axiom of all. Our commitment to this equality is deepened by the knowledge that it does not map perfectly onto social reality. Because people are not equal in rank and privilege, precisely because they are not afforded the same opportunities, or rather the same opportunity to take advantage of opportunity, we must provide equal access to justice for those that lack a voice in society: the poor, the marginalized, the “deviants.” Seen in that perspective, access to justice is an unconditional good. In this paper I shall attempt to nuance that belief by showing that, in addition to making us equal before the law, public law systems generate precarity. Public law systems do so by distributing access to justice in ways that make certain groups in society easy prey for those more powerful than themselves. The most obvious implications of the argument concern the constitutional sphere. But its most momentous implications may show themselves beyond that sphere. As the idea of the rule of law spreads around the world, driven by governance reforms and by the efforts of human rights advocates, the mechanisms of inand exclusion that underpin the operation of public law spread with it, reproducing on a global scale the social dynamics that generate inequality within the polities that law orders. As we shall see, public law may be one of the links that tie the relative deprivation we encounter in the West to the absolute deprivation suffered by millions in other parts of the world.1 If we want to determine how the machine of public law works in generating precarity, we need first to understand how the machine is wired. That is no easy task. The machine was not built from one","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"35 - 57"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41821179","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}
Pub Date : 2020-06-25DOI: 10.2979/indjglolegstu.27.2.0303
P. Paiement, Sophie Melchers
Abstract:Multinational enterprises increasingly use Codes of Conduct to govern the conditions of labor and production among their suppliers' operations around the globe. These Codes of Conduct, produced unilaterally by companies as well as by multistakeholder bodies, often include references to public international law instruments. This article takes a closer look at thirty-eight Codes of Conduct from the global apparel industry and uses social network analysis to identify the patterns in these Codes and how they refer to international legal instruments. Although some international legal instruments stipulate rules that can be directly transposed into the private context of supply chains, this study instead finds that the global apparel industry's Codes of Conduct are more likely to refer to instruments that only stipulate rules that pertain to public authorities. The findings call into question the legitimizing role that international law plays as it is transposed into transnational private governance.
{"title":"Finding International Law in Private Governance: How Codes of Conduct in the Apparel Industry Refer to International Instruments","authors":"P. Paiement, Sophie Melchers","doi":"10.2979/indjglolegstu.27.2.0303","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0303","url":null,"abstract":"Abstract:Multinational enterprises increasingly use Codes of Conduct to govern the conditions of labor and production among their suppliers' operations around the globe. These Codes of Conduct, produced unilaterally by companies as well as by multistakeholder bodies, often include references to public international law instruments. This article takes a closer look at thirty-eight Codes of Conduct from the global apparel industry and uses social network analysis to identify the patterns in these Codes and how they refer to international legal instruments. Although some international legal instruments stipulate rules that can be directly transposed into the private context of supply chains, this study instead finds that the global apparel industry's Codes of Conduct are more likely to refer to instruments that only stipulate rules that pertain to public authorities. The findings call into question the legitimizing role that international law plays as it is transposed into transnational private governance.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"303 - 345"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46873891","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}
Pub Date : 2020-06-25DOI: 10.2979/indjglolegstu.27.2.0129
T. Maluwa, A. Katz
Abstract:As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1998 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government, arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend to treat asylum seekers presumptively as economic migrants rather than bona fide refugees entitled to proper scrutiny under the criteria set out in the refugee conventions. This approach has resulted in gaps between legal protection and practical protection of refugees in South Africa and has on several occasions been criticized and rejected by courts, including the Constitutional Court of South Africa.
{"title":"Who is a Refugee?: Twenty-Five years of Domestic Implementation and Judicial Interpretation of the 1969 OAU and 1951 UN Refugee Conventions in Post-Apartheid South Africa","authors":"T. Maluwa, A. Katz","doi":"10.2979/indjglolegstu.27.2.0129","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0129","url":null,"abstract":"Abstract:As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1998 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government, arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend to treat asylum seekers presumptively as economic migrants rather than bona fide refugees entitled to proper scrutiny under the criteria set out in the refugee conventions. This approach has resulted in gaps between legal protection and practical protection of refugees in South Africa and has on several occasions been criticized and rejected by courts, including the Constitutional Court of South Africa.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"129 - 205"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43744266","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}
Pub Date : 2020-06-25DOI: 10.2979/indjglolegstu.27.2.0409
Colleen Naumovich
Medical tourism, as defined by scholar I. Glenn Cohen, is “the travel of residents of one country to another country for treatment.”1 Transplant tourism, a type of medical tourism, is traveling abroad to purchase an organ for transplant.2 Although organ sale is currently illegal in every country except Iran, many countries—such as India, the Philippines, Pakistan, Bangladesh, and Egypt—have thriving black markets for these goods.3 Organ transplants are often the only effective means of treating end state organ failure,4 and the demand for transplants is especially high in developed and middle-income countries.5 Shortages of available donors and organs, however, have caused an increased demand with a limited supply.6 The Global Observatory on Donation and Transplantation estimates that in 2013,
{"title":"Addressing Transplant Tourism Problems and Proposed Solutions: Regulation Instead of Prohibition","authors":"Colleen Naumovich","doi":"10.2979/indjglolegstu.27.2.0409","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0409","url":null,"abstract":"Medical tourism, as defined by scholar I. Glenn Cohen, is “the travel of residents of one country to another country for treatment.”1 Transplant tourism, a type of medical tourism, is traveling abroad to purchase an organ for transplant.2 Although organ sale is currently illegal in every country except Iran, many countries—such as India, the Philippines, Pakistan, Bangladesh, and Egypt—have thriving black markets for these goods.3 Organ transplants are often the only effective means of treating end state organ failure,4 and the demand for transplants is especially high in developed and middle-income countries.5 Shortages of available donors and organs, however, have caused an increased demand with a limited supply.6 The Global Observatory on Donation and Transplantation estimates that in 2013,","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"409 - 429"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44587490","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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