Pub Date : 2020-06-25DOI: 10.2979/indjglolegstu.27.2.0207
Y. Dautaj
Abstract:In 1945, the United States Congress enacted the International Organizations Immunities Act (IOIA). Section 288a(b) of the act grants international organizations "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments." The ensuing issue has been whether "the same immunity" means the immunity enjoyed in 1945, or whether it has evolved together with the body of law on sovereign immunity.In Jam v. Int'l Finance Corp, 586 U.S. (2019), the U.S. Supreme Court was finally asked to decide this issue, resolving a split in the federal circuits. The Court held that the immunity enjoyed by international organizations is that immunity which is enjoyed by foreign governments pursuant to the Foreign Sovereign Immunities Act of 1976 (FSIA).This article reaches two conclusions: first, a static interpretation more accurately reflects the context, purpose, consequences, and history of the IOIA. Second, if the reference to the same immunity is taken to mean a reference to the body of law on sovereign immunity, it is nonetheless a reference to the general rule of absolute immunity, which is now codified as a presumptive (or default) rule in § 1604 of the FSIA.
{"title":"Immunity from Suit for International Organizations: The Judiciary's New Que of Separating Lawsuit Sheep from Lawsuit Goats","authors":"Y. Dautaj","doi":"10.2979/indjglolegstu.27.2.0207","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0207","url":null,"abstract":"Abstract:In 1945, the United States Congress enacted the International Organizations Immunities Act (IOIA). Section 288a(b) of the act grants international organizations \"the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.\" The ensuing issue has been whether \"the same immunity\" means the immunity enjoyed in 1945, or whether it has evolved together with the body of law on sovereign immunity.In Jam v. Int'l Finance Corp, 586 U.S. (2019), the U.S. Supreme Court was finally asked to decide this issue, resolving a split in the federal circuits. The Court held that the immunity enjoyed by international organizations is that immunity which is enjoyed by foreign governments pursuant to the Foreign Sovereign Immunities Act of 1976 (FSIA).This article reaches two conclusions: first, a static interpretation more accurately reflects the context, purpose, consequences, and history of the IOIA. Second, if the reference to the same immunity is taken to mean a reference to the body of law on sovereign immunity, it is nonetheless a reference to the general rule of absolute immunity, which is now codified as a presumptive (or default) rule in § 1604 of the FSIA.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"207 - 268"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48711768","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.27.2.0347
E. Astrup
For centuries, tourists have visited lands near and far in search of experiences unavailable in their home countries.1 From golfing the best courses in the world, to yoga retreats in remote locations, many tourist activities provide experiential opportunities along with health and wellness benefits. Currently, an increasing number of individuals are opting to cross international borders to receive medical treatments, often at reduced costs.2 While many scholars use the term health tourism to encompass all health and wellness travel purposes,3 this note uses the term medical tourism to distinguish tourism for the specific purpose of medical treatments or procedures. Medical tourism is
{"title":"Passport to Plastics: Cosmetic Surgery Tourism, Medical Malpractice, and the Automatic Establishment of Personal Jurisdiction by Way of the Joint Commission International","authors":"E. Astrup","doi":"10.2979/indjglolegstu.27.2.0347","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0347","url":null,"abstract":"For centuries, tourists have visited lands near and far in search of experiences unavailable in their home countries.1 From golfing the best courses in the world, to yoga retreats in remote locations, many tourist activities provide experiential opportunities along with health and wellness benefits. Currently, an increasing number of individuals are opting to cross international borders to receive medical treatments, often at reduced costs.2 While many scholars use the term health tourism to encompass all health and wellness travel purposes,3 this note uses the term medical tourism to distinguish tourism for the specific purpose of medical treatments or procedures. Medical tourism is","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"347 - 369"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41729912","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.27.2.0371
M. Bellinger
When the United Nations (UN) was formed, one of its most important goals was to render war obsolete. The UN Charter states as a goal the hope to “save succeeding generations from the scourge of war.”1 When President Franklin D. Roosevelt first described his vision for a post-World War II international organization, he envisioned an organization that would promote and facilitate “international cooperation . . . to consider and deal with the problem of world relations.”2 He also wanted a council that would “concern itself with peaceful settlement of international disputes.”3 The UN Charter itself took the then-unprecedented step of outlawing war, stating that “all Members shall settle their international disputes by peaceful means,” and that “all Members shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state.”4 However, the UN Charter does not address the important potential exception of humanitarian intervention. This lack of clarity has led to a robust debate that continues to this day—can a state legitimately use
{"title":"The Dangers of Humanitarian Intervention and the Responsibility to Protect Doctrine, and a Partial Solution","authors":"M. Bellinger","doi":"10.2979/indjglolegstu.27.2.0371","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0371","url":null,"abstract":"When the United Nations (UN) was formed, one of its most important goals was to render war obsolete. The UN Charter states as a goal the hope to “save succeeding generations from the scourge of war.”1 When President Franklin D. Roosevelt first described his vision for a post-World War II international organization, he envisioned an organization that would promote and facilitate “international cooperation . . . to consider and deal with the problem of world relations.”2 He also wanted a council that would “concern itself with peaceful settlement of international disputes.”3 The UN Charter itself took the then-unprecedented step of outlawing war, stating that “all Members shall settle their international disputes by peaceful means,” and that “all Members shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state.”4 However, the UN Charter does not address the important potential exception of humanitarian intervention. This lack of clarity has led to a robust debate that continues to this day—can a state legitimately use","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"371 - 390"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48850403","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.27.1.0189
Ana Bejarano Ricaurte
Abstract:Empirical data in Colombia demonstrates that pro bono work by lawyers is both urgently needed by scarce-resourced communities and limitedly offered by the legal community. The restrictions of the legal market, especially with regards to its offer of legal services for the underprivileged, has direct consequences in the levels of poverty and inequality in Colombia. Thus, this paper hopes to contribute an answer the question: how can pro bono work help broaden, equalize, and ensure access to justice in Colombia? Part I includes an explanation of the statistics obtained from the survey of PBF law firm pro bono coordinators and interns and relevant data from the National Survey of Unmet Legal Needs. Part II comprises a discussion of the four main challenges identified through the empirical analysis. First, triage obstacles arise when assigning a case to one of the available legal aid outlets, and pro bono plays into these dynamics. Second, there is a significant gap between the first-order legal needs of the low-income population, and the type and amount of services offered through pro bono arrangements with law firms. Third, as a legal transplant, pro bono work faces infrastructure challenges. Finally, the fourth challenge stems from how improper practices can arise structurally around the figure of the pro bono intern in law firms. Part III explores the possibilities presented by pro bono programs in light of the current challenges assessed in the previous sections. It identifies actors in the legal community who could contribute to positive change, as well as recommendations for new legislation, changes to law school curricula, institutional improvements, and prevention of the misuse of certain pro bono mechanisms. Part IV presents the conclusions drawn from the specific findings of this article.
{"title":"Pro Bono Work in Colombia: How Can It Help Broaden, Equalize, and Ensure Access to Justice","authors":"Ana Bejarano Ricaurte","doi":"10.2979/indjglolegstu.27.1.0189","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.1.0189","url":null,"abstract":"Abstract:Empirical data in Colombia demonstrates that pro bono work by lawyers is both urgently needed by scarce-resourced communities and limitedly offered by the legal community. The restrictions of the legal market, especially with regards to its offer of legal services for the underprivileged, has direct consequences in the levels of poverty and inequality in Colombia. Thus, this paper hopes to contribute an answer the question: how can pro bono work help broaden, equalize, and ensure access to justice in Colombia? Part I includes an explanation of the statistics obtained from the survey of PBF law firm pro bono coordinators and interns and relevant data from the National Survey of Unmet Legal Needs. Part II comprises a discussion of the four main challenges identified through the empirical analysis. First, triage obstacles arise when assigning a case to one of the available legal aid outlets, and pro bono plays into these dynamics. Second, there is a significant gap between the first-order legal needs of the low-income population, and the type and amount of services offered through pro bono arrangements with law firms. Third, as a legal transplant, pro bono work faces infrastructure challenges. Finally, the fourth challenge stems from how improper practices can arise structurally around the figure of the pro bono intern in law firms. Part III explores the possibilities presented by pro bono programs in light of the current challenges assessed in the previous sections. It identifies actors in the legal community who could contribute to positive change, as well as recommendations for new legislation, changes to law school curricula, institutional improvements, and prevention of the misuse of certain pro bono mechanisms. Part IV presents the conclusions drawn from the specific findings of this article.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"189 - 229"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45052665","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.27.2.0001
M. Kirby
Abstract:In this article, the author draws on long engagement with multilateralism, both in domestic jurisdiction and international institutions. He describes the growth of post-War United Nations activities and the increasing impact of international law, including on universal human rights. He records international initiatives on global problems like HIV/AIDS and in individual countries, such as Cambodia and North Korea. He then describes recent examples of "pushback" against multilateralism, especially on the part of the United States, the United Kingdom, some European countries, and Australia. He concludes with illustrations and reasons why the global community should remain optimistic about multilateralism, despite certain recent setbacks. He suggests that multilateralism is a product of the application of natural human appreciation, self-interest, modern technology, and the empathy of human consciousness that tends to emphasize and favor the commonalities in human existence.
{"title":"Multilateralism, Pushback, and Prospects for Global Engagement?","authors":"M. Kirby","doi":"10.2979/indjglolegstu.27.2.0001","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0001","url":null,"abstract":"Abstract:In this article, the author draws on long engagement with multilateralism, both in domestic jurisdiction and international institutions. He describes the growth of post-War United Nations activities and the increasing impact of international law, including on universal human rights. He records international initiatives on global problems like HIV/AIDS and in individual countries, such as Cambodia and North Korea. He then describes recent examples of \"pushback\" against multilateralism, especially on the part of the United States, the United Kingdom, some European countries, and Australia. He concludes with illustrations and reasons why the global community should remain optimistic about multilateralism, despite certain recent setbacks. He suggests that multilateralism is a product of the application of natural human appreciation, self-interest, modern technology, and the empathy of human consciousness that tends to emphasize and favor the commonalities in human existence.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"1 - 32"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45155256","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.27.2.0391
Medina Dzubur
History provides a lens to interpret events shaping modern society. It encapsulates perspectives from varying ethnic, religious, and gender classes. These perspectives provide key analyses regarding the intentions and movements of important actors and groups as well as providing lessons for the “advancement of peace and prosperity” in society.1 Even though historians and scholars have compiled mass amounts of information related to the timeline of war, the modern world continues to be plagued by this phenomenon. War conflicts continue to displace millions of individuals each year, forcing them out of their homes and away from their families. For this reason alone, it is important to analyze history to articulate a comprehensive understanding of why displacement events continue to occur in the modern day,2 and how the law can mitigate the consequences of mass immigration. The end of the Cold War3 led the world to believe that many “displaced persons would soon be able to return home and . . . rebuild their lives.”4 However, a declaration of independence from Yugoslavia
{"title":"Temporary Protection Status: A Yugoslavian Precedent","authors":"Medina Dzubur","doi":"10.2979/indjglolegstu.27.2.0391","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0391","url":null,"abstract":"History provides a lens to interpret events shaping modern society. It encapsulates perspectives from varying ethnic, religious, and gender classes. These perspectives provide key analyses regarding the intentions and movements of important actors and groups as well as providing lessons for the “advancement of peace and prosperity” in society.1 Even though historians and scholars have compiled mass amounts of information related to the timeline of war, the modern world continues to be plagued by this phenomenon. War conflicts continue to displace millions of individuals each year, forcing them out of their homes and away from their families. For this reason alone, it is important to analyze history to articulate a comprehensive understanding of why displacement events continue to occur in the modern day,2 and how the law can mitigate the consequences of mass immigration. The end of the Cold War3 led the world to believe that many “displaced persons would soon be able to return home and . . . rebuild their lives.”4 However, a declaration of independence from Yugoslavia","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"391 - 408"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42985680","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.27.1.0249
Marzia Barbera, V. Protopapa
As stated in the introduction to this special issue, the right to access to justice is critical in a liberal state: it allows individuals to defend their interests in court and to achieve full inclusion in the political community. Nonetheless, epistemological, class, and market inequalities have historically hindered its realization. Worldwide, poor and marginalized individuals and groups do not have access to the tools they need to effectively access the judicial system. Modern liberal democracies have developed two main approaches to ensure better access to justice. The first approach focuses on providing legal services to those unable to afford a lawyer, and is identified as the “legal aid solution.”1 The second approach goes beyond the need for legal services of specific individuals, and aims to address the problem of legal representation of group and collective interests; this is identified as the “representation for diffuse interests solution.”2 Despite significant variations, the solutions that, according to each approach, have been
{"title":"Access to Justice and Legal Clinics: Developing a Reflective Lawyering Space Some Insights from the Italian Experience","authors":"Marzia Barbera, V. Protopapa","doi":"10.2979/indjglolegstu.27.1.0249","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.1.0249","url":null,"abstract":"As stated in the introduction to this special issue, the right to access to justice is critical in a liberal state: it allows individuals to defend their interests in court and to achieve full inclusion in the political community. Nonetheless, epistemological, class, and market inequalities have historically hindered its realization. Worldwide, poor and marginalized individuals and groups do not have access to the tools they need to effectively access the judicial system. Modern liberal democracies have developed two main approaches to ensure better access to justice. The first approach focuses on providing legal services to those unable to afford a lawyer, and is identified as the “legal aid solution.”1 The second approach goes beyond the need for legal services of specific individuals, and aims to address the problem of legal representation of group and collective interests; this is identified as the “representation for diffuse interests solution.”2 Despite significant variations, the solutions that, according to each approach, have been","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"249 - 271"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48904189","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.27.2.0431
Rachael Taylor
Abstract:In the fall of 2018, the European Court of Human Rights (ECtHR) issued a decision upholding the criminal conviction of an Austrian national (E.S.) in violation of Austria's Criminal Code against the disparagement of religious doctrines. Her initial conviction in the Austrian court was based on statements she made about the Prophet Muhammad while teaching a series of seminars entitled "Basic Information on Islam." In upholding her conviction, the ECtHR found that there had been no violation of the Austrian's right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights (Convention), and therefore Austria's conviction was valid and did not impermissibly infringe on her right to freedom of expression. This case adds yet another dimension to the polarizing debate regarding freedom of expression and the permissible limitations that may be placed upon this freedom. In this article, I argue that this case can be viewed as a turning point in the free expression debate, and perhaps indicates an awareness that such restrictions on speech may be necessary in order to maintain public safety and order.
{"title":"When Freedom of Speech Comes at a Cost: A Case Study of E.S. v. Austria","authors":"Rachael Taylor","doi":"10.2979/indjglolegstu.27.2.0431","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.2.0431","url":null,"abstract":"Abstract:In the fall of 2018, the European Court of Human Rights (ECtHR) issued a decision upholding the criminal conviction of an Austrian national (E.S.) in violation of Austria's Criminal Code against the disparagement of religious doctrines. Her initial conviction in the Austrian court was based on statements she made about the Prophet Muhammad while teaching a series of seminars entitled \"Basic Information on Islam.\" In upholding her conviction, the ECtHR found that there had been no violation of the Austrian's right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights (Convention), and therefore Austria's conviction was valid and did not impermissibly infringe on her right to freedom of expression. This case adds yet another dimension to the polarizing debate regarding freedom of expression and the permissible limitations that may be placed upon this freedom. In this article, I argue that this case can be viewed as a turning point in the free expression debate, and perhaps indicates an awareness that such restrictions on speech may be necessary in order to maintain public safety and order.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"431 - 450"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46556778","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.27.1.0131
Daniel Bonilla Maldonado
The right to access to justice is one of the pillars of modern liberal democracies. On the one hand, it allows citizens to solve their conflicts by appealing to courts and to the administration.1 On the other, as argued in the theoretical papers gathered in Part I, it allows citizens to choose and realize their life projects and to be fully included in the political community. Yet, all modern liberal democracies suffer an access to justice deficit to varying degrees. As argued in the introduction of this special issue, class, epistemological and market inequalities create notable obstacles to the materialization of the right to access to justice. Modern liberal democracies have developed four institutions— public defenders’ offices, court-appointed counsel, legal clinics, and pro bono work—to realize the State’s and lawyers’ obligations to securing the right to access to justice for all. This article is focused on only one of these institutions: pro bono legal work. This article pursues two intertwined aims: first, it describes and analyzes the conceptual architecture that supports pro bono work;2 second, using these theoretical tools, it describes and analyzes the pro bono discourse and practices developed in Argentina, Colombia, and Chile.
{"title":"The Mandarins of the Law: Pro Bono Legal Work from a Comparative Perspective","authors":"Daniel Bonilla Maldonado","doi":"10.2979/indjglolegstu.27.1.0131","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.1.0131","url":null,"abstract":"The right to access to justice is one of the pillars of modern liberal democracies. On the one hand, it allows citizens to solve their conflicts by appealing to courts and to the administration.1 On the other, as argued in the theoretical papers gathered in Part I, it allows citizens to choose and realize their life projects and to be fully included in the political community. Yet, all modern liberal democracies suffer an access to justice deficit to varying degrees. As argued in the introduction of this special issue, class, epistemological and market inequalities create notable obstacles to the materialization of the right to access to justice. Modern liberal democracies have developed four institutions— public defenders’ offices, court-appointed counsel, legal clinics, and pro bono work—to realize the State’s and lawyers’ obligations to securing the right to access to justice for all. This article is focused on only one of these institutions: pro bono legal work. This article pursues two intertwined aims: first, it describes and analyzes the conceptual architecture that supports pro bono work;2 second, using these theoretical tools, it describes and analyzes the pro bono discourse and practices developed in Argentina, Colombia, and Chile.","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"131 - 188"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47358226","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.27.1.0289
Manuel Iturralde
This is the story of Omar, a man convicted of murder and sentenced to seventeen years in prison. Despite appearances, this is also the story of a criminal justice system that fails to effectively guarantee the fundamental rights of the defendant. Omar’s case is not unique, but a telling example of the systematic failure of the Colombian criminal justice, which is not fit for the purpose of protecting the constitutional rights to access to justice and to defense. This is even more worrisome, when considering that those whom the system fails are, in most cases, members of the most disadvantaged social groups. A middleor upperclass defendant stands a better chance of justice because they have the economic and social resources to secure the legal counsel of highly skilled and motivated private lawyers, which most people being prosecuted and put in prison cannot afford. Through the account of Omar’s case, this article will discuss the legal fiction of the right to access to justice and to defense in the Colombian criminal justice system, pinpointing its features and especially its systematic shortcomings, despite legal guarantees and recent legal reforms. This article will also try to make sense of why this is the case and how it is not a peculiarity of the Colombian criminal justice, but rather a worrying trend that affects different liberal democracies from the global north and south. These liberal democracies have embraced a highly punitive and exclusive political economy of punishment, which disproportionately affects members of the lower classes. As discussed in the introduction of this special issue, there is a clear and direct connection between global poverty and inequality on the one
{"title":"The Legal Fiction of the Right to Defense in the Colombian Criminal Justice System","authors":"Manuel Iturralde","doi":"10.2979/indjglolegstu.27.1.0289","DOIUrl":"https://doi.org/10.2979/indjglolegstu.27.1.0289","url":null,"abstract":"This is the story of Omar, a man convicted of murder and sentenced to seventeen years in prison. Despite appearances, this is also the story of a criminal justice system that fails to effectively guarantee the fundamental rights of the defendant. Omar’s case is not unique, but a telling example of the systematic failure of the Colombian criminal justice, which is not fit for the purpose of protecting the constitutional rights to access to justice and to defense. This is even more worrisome, when considering that those whom the system fails are, in most cases, members of the most disadvantaged social groups. A middleor upperclass defendant stands a better chance of justice because they have the economic and social resources to secure the legal counsel of highly skilled and motivated private lawyers, which most people being prosecuted and put in prison cannot afford. Through the account of Omar’s case, this article will discuss the legal fiction of the right to access to justice and to defense in the Colombian criminal justice system, pinpointing its features and especially its systematic shortcomings, despite legal guarantees and recent legal reforms. This article will also try to make sense of why this is the case and how it is not a peculiarity of the Colombian criminal justice, but rather a worrying trend that affects different liberal democracies from the global north and south. These liberal democracies have embraced a highly punitive and exclusive political economy of punishment, which disproportionately affects members of the lower classes. As discussed in the introduction of this special issue, there is a clear and direct connection between global poverty and inequality on the one","PeriodicalId":39188,"journal":{"name":"Indiana Journal of Global Legal Studies","volume":"27 1","pages":"289 - 327"},"PeriodicalIF":0.0,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41703539","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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