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Volume I Issue 3 (July 2014)

Volume I Issue 3 ( July 2014)


Abstract. This article focuses on the various national laws, international declarations and treaties, and professional codes have shifted in the past century to push for the returns of the remains of indigenous persons excavated in the nineteenth to early twentieth centuries. This article aims to shift the discussion away from creating new laws to discussing how the museum professional duties have changed. The article begins with two case studies of the repatriation of South African remains from Europe as a way to illustrate the issues that exist at each step of the remains journey from their collection, their holding in foreign institutions, and their return to native land. The article then uses the history of collecting indigenous remains to display the previous and current legal issues that have been problematic for officials today. Next, the article surveys the older laws that protected burial sites to the current proliferation of laws regarding human remains in museums. The obstacles faced by both host institutions and indigenous groups are presented to highlight the abilities for law to further the goals to repatriate remains but still fall short. This survey breaks down the challenges faced by countries with museums holding remains, those with museums holding remains and having large indigenous groups, and developing countries with large indigenous groups to show how these countries must approach this subject differently due to the social and economic conditions faced by these circumstances. Finally, soft law including human rights declarations and professional ethics codes, which have had a larger impact on the return of remains, are analyzed. The moral and ethical duties have brought this issue to the forefront and continue to push museums and institutions to find ways to return remains to ancestral groups or hold them in a respectful manner. 

Keywords: Human Rights, Cultural Heritage, Collective Rights, Post Colonialism, Indigenous People's Rights, Cultural Rights.

2. The Door Ajar: The Life of the Alien Tort Statute before and after Kiobel v. Royal Dutch Petroleum by Matthew K. Toyama of Santa Clara University School of Law, at 689-732.
Abstract. Since the April 2013 Supreme Court decision of Kiobel v. Royal Dutch Petroleum, the future of international human rights litigation in U.S. federal courts flounders in a quagmire of complex precedent and wants a light in the darkness. This article seeks to find the foundation of the relationship of the law of nations to at least one sovereign state, the United States, then investigates the life of a major liaison in this regard, the Alien Tort Statute (ATS), and explores the viability of the ATS as a channel for international human rights litigation moving forward. Consistent judicial opinion, contextual and textual evidence of congressional intent and the Constitution itself support that the raison d’etre of the ATS has been to uphold the law of nations consistently in cases of violations of accepted international norms of human conduct which are properly brought to United States forums for adjudication; the Supreme Court’s most recent conception of the statute notwithstanding, the vitality of this bedrock component of American judicial fabric will remain. 
    This article makes three main arguments: one, that despite an intended and requisite place for our federal judiciary in reinforcing international law, the Kiobel Court incorrectly applied the presumption against extraterritoriality to the ATS which is a purely jurisdictional statute and building upon its precedent, misunderstands the nature of the jurisdiction involved and the proper substantive rule of decision for ATS cases; two, future causes of action that will continue to be successful under the ATS will at least be those that continue to adhere to the contours of Filartiga v. Pena-Irala, where connection to the U.S. deriving from substantial personal jurisdiction over a defendant, for example in the ways of U.S. citizenship and permanent or longtime residency, will suffice to overcome the presumption; lastly, within this framework, international law lends support for the contention unaddressed by the Kiobel II court that jurisdiction over corporations for civil liability validly exists as well. 

Keywords: Alien Tort Statute, Presumption Against Extraterritoriality, Adjudicative Jurisdiction, Customary International Law, U.S. Federal Common Law, International Civil Corporate Liability.


AbstractIn the era of globalization, the concept of multiculturalism is gaining significance in many countries around the globe. With the recent demographical changes, South Korea, too, is starting to engage in the debate on multiculturalism. Despite an increasing number of foreigners residing in Korea, its traditional concept of danilminjok, roughly translated as one-ethnicity, is presenting unique challenges to the protection of human rights of ethnic and cultural minorities. 
    This article examines different legal strategies employed by South Korea when dealing with four minority groups, namely, migrant workers, hwagyo (Chinese-Korean), North Korean refugees, and interracial children. Recent legal developments that deal with human rights of migrant workers display a strong segregation strategy which is especially evident in the recent Constitutional Court decisions on the prohibition on a transfer of workplaces for migrant workers. Human rights of hwagyo are dealt with a more complicated strategy which can be best described as a mixture of segregation and marginalization. This ambivalent strategy is exemplified by the asymmetry of benefits and obligations that hwagyo face in Korean society. Laws dealing with human rights of North Korean refugees have shifted from a mixture of integration and assimilation strategies to an assimilation strategy. The case study of family law exceptions for North Korean refugees indicates a clear assimilation strategy recently employed by the South Korean judiciaries. Lastly, human rights of interracial children are dealt with assimilation policies which are especially evident in the case study of the abolition of military duty exemption. 
    This article attempts to answer the question on what caused this divergent legal treatment of these four ethnic and cultural minority groups. It finds the answer in Anderson’s concept of imagined community. It argues that because these four groups have a different place in the imagined Korean national identity due to factors like historical experience and blood lineage, these four groups’ human rights are treated differently. This article concludes with implications for human rights organizations and legislatures in South Korea on how to improve human rights protections of minority groups through recognizing this inconsistency. 

Keywords: Aliens' Rights, Citizenship, Human Rights, Immigration, Law and Society, Minorities Rights, Racial Discrimination, Multiculturalism.  

4. The Burma Crisis: Civilian Targets without Recourse by Justin Bell of Lincoln Memorial University – Duncan School of Law, at 768–807;

AbstractBurma could be considered the “Mecca” for human rights violations. Located in southeast Asia, Burma is a country ruled by a military government that has refused to relinquish power to a publicly-elected democratic Parliament. There have been recent strides toward establishing a democracy; however, the democratic movement is progressing at a stagnant pace. Meanwhile, many Burmese citizens continue to face horrific human rights violations, including torture and death, while the world stands idly by and watches as these events unfold. This article provides a concise description of the horrific events that have unfolded throughout Burma’s history and identifies what progression the country has recently made. However, this article reveals that such progress is predominately “smoke in mirrors” and the fight to establish a democracy in Burma must target the primary barrier to resolving this conflict in order to maintain international peace and security. 

Keywords: Burma, Myanmar, Human Rights Violations in Burma, International Human Rights Violations, Crimes Against Humanity, War Crimes.

5. Fixing Financial Fair Play: How to Make European Soccer’s Salary Cap Stick by Samuel T. Kilb of Benjamin N. Cardozo School of Law, at 808–842;

Abstract. The Union of European Football Associations (UEFA) has implemented the Financial Fair Play rules designed to stem runaway spending that has become endemic to the modern game. The introduction of Financial Fair Play is a response to the problem raised in an unregulated market of top-league sports clubs: wealthier clubs, which can afford to spend more, will outbid the others for the best players, causing some less-endowed clubs to overstretch their means in an attempt to attract top-level players, sometimes to the point of sliding into receivership, thereby reducing competition and legitimacy within the league. The result, in due course, is a stark differentiation in the quality of the teams fielded for play, with the same club, or handful of elite clubs, invariably winning the championship. That would lead to reduced ticket sales and hence revenues, and perhaps the disappearance of some clubs. This concentration (reduction of the number of competing clubs—as would tend to happen in any mature industry in general) would exacerbate the problem and tend to lead to the demise of the league as a whole. 
    However, even before the rules went into effect last year, many clubs began looking for ways to circumvent the break-even provision in order to stay competitive. Manchester City and Paris Saint-Germain, two clubs backed by extraordinarily wealthy ownership groups, offer examples of the type of accounting tricks and related-party transactions that could be used to circumvent the rules. Legal challenge to the rules, which could very well be successful, may mean enforcement will be hedged and that no club will face the ultimate punishment—exclusion from the UEFA Champion’s League and the lucrative payouts that come with it. And different tax rules and club ownership structures in different countries will mean inconsistencies that could further undermine the rules. These challenges to the legitimacy of Financial Fair Play threaten the legitimacy of the system as a whole, which could cause it to face widespread rebellion and scorn, causing it to lose in the court of public opinion faster than a case could get through European courts. This article looks into the question of how to set rules that maintain a reasonable number of viable clubs, allowing for fierce competition amongst these, yet preventing grave asymmetries or disappearances of clubs. In particular, it looks at how the Europeans are trying to cope, and compares this in several spots with similar attempts in North America. Ultimately, this article gets into detailed institutional consideration of what does not seem to work and what might work, and recommends that rules such as these be adopted at the level of the national football associations of each country rather than at the European level. 

Keywords:  Sports Law, Anti-competition, Free Trade, Free Movement, Salary Cap, Financial Fair Play. 

6. Cultural Rights: The Possible Impact of Private Military and Security Companies by Ana F. Vrdoljak of University of Technology Sydney, at 843–877;

Abstract. Culture and its protection has been present in the earliest codifications of the laws of war and international humanitarian law, both in its physical manifestations as cultural heritage and its practice and enjoyment as cultural rights. However, the engagement of private military and security companies (PMSCs) in recent conflicts has again raised the vexed issue of the role of “culture” and heritage professionals in armed conflicts and belligerent occupation. This debate has in turn exposed the limitations of existing international humanitarian law and human rights instruments.
    To complement the PRIV-WAR project’s current and projected work, this paper is divided into four parts. First, there is an examination of the current debate amongst heritage professionals, particularly archaeologists and anthropologists, about their professional engagement with PMSCs in recent conflicts and belligerent occupation. Second, there is an overview of existing international humanitarian law and human rights provisions covering cultural rights and cultural heritage during armed conflict and occupation. Third, the response of professional bodies and associations of heritage professionals through their codes of ethics and public pronouncements to these emerging challenges is detailed. Finally, in the light of this, the existing lacunae in international law are exposed and challenges for the protection of cultural rights and cultural heritage specifically are outlined.

Keywords: Cultural Rights, Cultural Heritage, International Humanitarian Law, Anthropology, Archaeology, Museum Studies, Private Military and Security Companies.

Book Review

7. The Evolutionary Path of the Law by Enrique Guerra-Pujol of  University of Central Florida. at 878–890.
(Review of Ullica Segerstråle, Nature’s Oracle: The Life and Work of W. D. Hamilton, Oxford University Press, 2013)

AbstractWhat lessons can legal scholars learn from the life and work of W. D. "Bill" Hamilton, a lifelong student of nature? From my small corner of the legal Academia, three aspects of Bill Hamilton’s work in evolutionary biology stand out in particular: (i) Hamilton’s simple and beautiful model of social behavior in terms of costs and benefits; (ii) his fruitful collaboration with the political theorist Robert Axelrod and their unexpected yet elegant solution of the Prisoner’s Dilemma, an important game or puzzle that had defied solution until Hamilton and Axelrod came along; and (iii) Hamilton’s conception of science generally -- and in particular his view of the process of scientific justification -- as a form of trial advocacy. In this review of Ullica Segerstråle’s recently-published biography of Bill Hamilton, the author briefly recounts and reviews each one of these important contributions.

Keywords: Behavioralism, Law and Economics, Legal Theory, Evolutionary Biology, W.D. Hamilton, Prisoner's Dilemma.