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comparativejurist

UNESCO’s Ricardo de Guimarães Pinto keynote speech at William & Mary Law School’s Cultural Heritage Symposium

UNESCO’s Ricardo de Guimarães Pinto keynote speech at William & Mary Law School’s Cultural Heritage Symposium

By Ricardo de Guimarães Pinto.

“On behalf of UNESCO, the United Nations Educational, Scientific, and Cultural Organization, it is really a great honor for me to be with you today at William & Mary Law School. As we all know, William & Mary was the first law school in the United States and was the brainchild of President Thomas Jefferson. Given your rich history, I particularly appreciate your commitment to UNESCO’s cultural work: to protect the heritage of humanity so that each of us – regardless of age, gender, nationality or income – can enjoy, benefit and learn from the legacy of the past.” […]
A Three-year-old Cannot Represent Herself in Court: The Need to Appoint Counsel to Children in Removal Proceedings

A Three-year-old Cannot Represent Herself in Court: The Need to Appoint Counsel to Children in Removal Proceedings

 By Jennifer Quezada Castillo.

Immigration proceedings are far from being simple and easily understood procedures. The court in Castro-O’Ryan v. INS recognized the complexity of our immigration laws by holding that “‘immigration laws [are] second only to the Internal Revenue Code in complexity.’” If courts have recognized the intricacy of our immigration laws, it’s difficult to comprehend why we would require a child to make sense of this complex system without the assistance of an expert in the field. We shouldn’t. However, our laws do not reflect this simple and logical answer. […]
Populism and Constitutionalism in East-Central Europe

Populism and Constitutionalism in East-Central Europe

By Gábor Halmai.

The recent deviations from the shared values of constitutionalism towards a kind of “populist, illiberal constitutionalism” in East-Central Europe raise the theoretical questions: are populism and illiberalism what the leaders of these backsliding states proud of, reconcilable with constitutionalism? I shall concentrate on a particular version of populism, which is nationalist and illiberal, and mainly present in Hungary and Poland, and in other countries of the region. Most are also members of the European Union, a valued community based on liberal democratic constitutionalism.  The arguments set forth below about East-Central European populist constitutionalism in this paper do not necessarily apply to other parts of Europe (Greece and Spain), Latin-America (Bolivia), or the US, where populism has a different character, and its relationship to constitutionalism is distinct from the Hungarian or the Polish variant. […]
Catalonia’s Independence: Much Worse than Hard Brexit

Catalonia’s Independence: Much Worse than Hard Brexit

By Jose M. de Areilza.

Any decision to leave the European Union carries enormous costs, as witnessed during the current difficult Brexit negotiations. In the United Kingdom, more than a year after the referendum, EU skeptics within both the Conservative and Labor parties have lost the battle against those in favor of maintaining the closest possible ties with the European Union. In time, I believe that many British citizens will demand a second referendum on EU membership out of a desire to avoid exit, right up to the final moments of negotiations next March. […]
Not All Wounds Heal with Time: Why the Gambia Needs Transitional Justice

Not All Wounds Heal with Time: Why the Gambia Needs Transitional Justice

By Shaina Salman.

It happened quickly. Yahya Jammeh, The Gambia’s twenty-two-year de facto dictator, boarded a plane to Equatorial-Guinea accompanied by Alpha Condé, Guinea’s president, and most of his fleet of luxury cars. It was almost as if Jammeh’s departure suddenly ripped a band-aid from The Gambia exposing its deep wound to the world- a wound many accuse Jammeh himself of inflicting. Many now think it is time to move on. With Jammeh gone and Adama Barrow having been democratically elected President of The Gambia, many think it is now time to forget about the past and forge a new path.  Unfortunately, as we have learned from countries that have dealt with conflict, dictatorships, and civil war, time alone does not heal all wounds. Sometimes, wounds need to be treated, disinfected, and nursed back to health and the same can be said for societies that have been marred by regimes of terror. These societies need to deal with the sources of its pain, understand past transgressions in order to avoid further damage in the future. The Gambia needs transitional justice – it needs mechanisms that deal with all the open questions left to be answered -it needs to do so on its own and it needs to do so by establishing equitable processes that allow people to find peace in the truth and to repair the years of damage as best as possible. […]
The Challenge of Litigation Costs and Damage Assessment Fees in Environmental Public Interest Litigation in China

The Challenge of Litigation Costs and Damage Assessment Fees in Environmental Public Interest Litigation in China

By Yu Zhuang.

From January 2015 when the new Environmental Protection Law (EPL) took effect to the end of 2016, courts in China have accepted 112 environmental public interest litigation (EPIL) cases filed by non-governmental organizations (NGOs). But, as of November 2016, only six NGOs have brought EPIL cases, down from eleven in 2015. In light of China’s mounting environmental crisis and the fact that over 700 NGOs are eligible to file EPIL cases under the EPL, the number of EPIL cases filed and the NGOs filing these cases are surprisingly low. One reason is the high upfront costs and risks borne by NGOs, which includes litigation costs paid to courts and damage assessment fees. These costs and fees constitute a formidable barrier to environmental NGOs because many of them operate on constrained budgets. As a result, very few NGOs can afford to pursue legal action. […]
Green is the New Orange: Solving the Problem of Citrus Greening for H-2A Guest Workers

Green is the New Orange: Solving the Problem of Citrus Greening for H-2A Guest Workers

By Sami L. Alsawaf.

The United States agriculture economy relies heavily on foreign workers—in 2011, there were 55,000 workers on H-2A visas. Guest workers in the U.S. are not immune to the injustices seen by migrant workers across the world. Employers of foreign workers may withhold wages or force workers to live in poor conditions. Due to these abuses, the H-2 visa program has been compared to legal slavery. […]
Circumventing International Law: The EU’s Responsibility for Rights of Migrants Returned to Libya Under Operation Sophia

Circumventing International Law: The EU’s Responsibility for Rights of Migrants Returned to Libya Under Operation Sophia

By Victoria Jensen.

From January to October 2016, nearly 160,000 refugees crossed the Mediterranean to Italy. In response to the smuggling and trafficking across the Mediterranean, the European Union created Operation Sophia. However, Operation Sophia has resulted in migrant and refugee boats being intercepted by the Libyan Coast Guard and being returned to Libya. Through the Operation Sophia training program, the EU has effectively delegated European border control to the Libyan Coast Guard. This practice allows the EU to evade both their duty of non-refoulement and duty to rescue distressed persons at sea. The EU has trained Libyans to conduct actions which the EU could not legally accomplish itself under international law, and is therefore violating international human rights law by aiding and assisting Libya’s wrongful actions. […]
Freedom of Movement: the Right to Leave Permanently and the Right to Leave Temporarily

Freedom of Movement: the Right to Leave Permanently and the Right to Leave Temporarily

By Lauren Gillespie.

Man is a migrant species. With modern technology, emigration has lost its permanency, and people ebb and flow through borders. And today states struggle to control the movement of humanity across borders while respecting the right to freedom of movement. In this article, I argue that the international law community split freedom of movement into two distinct rights: namely, the right to leave permanently and the right to leave temporarily. […]
Will China Recognize Same-Sex Marriage? Take a Look at China’s One-Child Policy

Will China Recognize Same-Sex Marriage? Take a Look at China’s One-Child Policy

By Howell Ma.

The legalization of gay marriage is being argued in China right now. It is has been discussed in the society for years, especially after the United States (“U.S.”) Supreme Court Obergefell ruling came out in 2015. Constantly, there are discussions regarding why it is so difficult for the People’s Republic of China (“PRC”) to recognize same-sex marriage while ancient China had relatively more tolerant policies towards same-sex relationships. This article argues the greatest challenge is not the constitutional grounds, but rather social hurdles: traditional Confucian culture, the government’s ignorance of the existence of lesbian, gay, bisexual and transgender (“LGBT”) people in China, and the general mass social views of homosexuality and same-sex marriage in China. […]