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Volume IV Issue 1 (January 2017)

Editorial Material 

Foreword by Pranoto Iskandar

Articles

1. A Clash of Civilizations: An Overview on Child Brides and How the Syrian Refugee Crisis is Forcing Europe to Follow its Laws or Follow Another’s by Jessica Smith of St. Thomas University School of Law, at 3–39;

Everyday, all around the world millions of women and children are suffering from the effects child marriage. A child marriage occurs when a female child is forced to marry an adult male. These marriages are typically the result of poverty, religion, and cultural norms. One of the areas with the most prevalent amount of child brides is the countries throughout the Middle East including Syria. As a result of the current refugee crisis occurring in Syria, where millions of Syrian citizens are fleeing their homes, of which many are fleeing into the countries of Europe willing to accept them. Many of the refugees coming into Europe are already involved in a child marriage. Leaving the countries of Europe to make a difficult decision, should they violate their own laws and accept the marriages to keep these “families” together? Or should they enforce their laws and separate the adult men from their adolescent wives? The decision for Europe touches on many areas that today seem to be to politically correct to discuss without being spun into political pander. Issues such as assimilation, nationality, religion, international and local laws, and cultural norms for both Europeans and Syrians. These issues are causing political tensions and societal tension among European citizens and the refugees residing in their country. This paper addresses the reasons child marriages occur, the U.N. resolutions that aim at protecting women and children but are failing miserably, in addition to the failure of many countries to put into place protections for female children, the major detrimental effect child marriage has on young women both emotionally and physically, and the cultural and religious conflict between the refugees and European citizens.

Keywords: Women’s Human Rights, Refugee Law, Gender Equality, Child’s Rights, Comparative Health Law, The Human Right to Education. 

2. Criminal Responsibility in Brazilian Transitional Justice: A Constitutional Interpretative Process under the Paradigm of International Human Rights Law by Emilio Peluso Neder Meyer of The Federal University of Minas Gerais, Brazil, at 41–71;

This article aims to show how Brazilian institutions are coming to the conclusion that the crimes perpetrated by state agents during the Brazilian dictatorship of 1964–1985 are crimes against humanity. This conclusion is now being reflected in few judicial rulings but, paradoxically, in several institutional opinions (delivered by prosecutors, truth and reparatory commissions). The article provides an approach to the historical context of Brazilian dictatorship and the transitional justice measures that came after that exception period. An overview of how criminal responsibility for crimes perpetrated by Brazilian public agents was put aside during several decades will have a climax in the Brazilian Federal Supreme Court (Brazilian Supremo Tribunal Federal) holding of 2010. On the flip side, the condemnation of Brazil by the IACtHR in the Gomes Lund Case will be followed by the incorporation of the notion of crimes against humanity. In conclusion, it will be possible to ascertain that Brazilian institutions started to conform to the normative demands of international human rights law concerning criminal individual responsibility, even if judicial authorities obstinately resisting it.

Keywords: Transititional Justice, Human Rights, Democracy-building, Constitutional Law, Authoritarianism, Amnesty Law.

3. Legal Analogy as an Alternative to the Deductive Mode of Legal Reasoning, by Maciej Koszowski of Jan Długosz University in Częstochowa, the Faculty of Philology and History, Poland, at73-87;

This article demonstrates the inadequacy of legal deduction as a method that guarantees the certainty and predictability of law and its outcomes in concrete instances. Inter alia, it brings our attention to the far smaller role that the deductive pattern of inference plays in legal thought than one may suppose, since this pattern rather only a schematic illustration of the decisions that were previously made by recourse to the mental operations of a non-logical nature. In return, as an alternative, legal analogy by which it is understood a mode of thinking which enables the reasoners to take into account a mass of different factors that are traditionally deemed to be relevant for legal thought and decision-making is proffered.

Keywords: Jurisprudence, Formalism, Positivism, Analogical Reasoning, Legal Argumentation, Legal Inference.

Commentary
4. Towards a Universal Construction of Transgender Rights: Harmonizing Doctrinal and Dialogic Strategies in Indian Jurisprudence by Spence Jones of The Human Rights Law Network’s Humjinsi Initiative, at 91-121;

This paper intends to critically examine the juridical process by which members of the transgender community in India became the subjects of rights. This process reached its apotheosis in the passing of a landmark judgment, NALSA v. Union of India, by the Supreme Court of India that granted legal recognition to transgender citizens and affirmed their fundamental right to constitutional protections, guarantees, and entitlements. This jurisprudence, I argue here, relies upon a dialogic nexus between human rights and development advanced by the Court, one which allows for the deployment of an innovative doctrinal approach that interprets the civil and political rights envisaged in Part III of the Constitution of India harmoniously with the social and economic rights in Part IV. The Court’s approach, it is further argued, is centered on the usage of international and comparative law as mechanisms for informing constitutional interpretation, as well as facilitating and enabling constitutional choice. In doing so, the Court harmonizes universal human rights standards with a deep national commitment to an inclusive society. This paper, therefore, uses this jurisprudence as a case study to problematize extant conceptual models for understanding how human rights law may be used as an instrument for development. 

Keywords: Human Rights to Equality, LGBT’s Human Rights, International Law, Constitutional Law, Queer Theory, Comparative Law.

Current Development
5. The Invisible Wall: Why U.S. Refugee Policy Operates as an Illegal Restraint on the Asylum Rights of Syrians by Colin E. Tansits of Syracuse University College of Law, at 125-55;

The international refugee crisis requires the world’s attention. Millions of people are stateless and suffering, and there is an alarming risk of losing an entire generation. The crisis came to a tipping point after the Syrian conflict began in 2011. Now millions of Syrian children are no longer in school and thousands have been separated from their parents. In response to this humanitarian event the U.S. has done little more than provide funding to organizations addressing the situation. That funding, however, can only go so far and millions still remain displaced as of today. Moreover, U.S. funding that is bereft of actual U.S. oversight only increases the risk that those donations will fall into the hands of dangerous extremists and terrorists groups. Despite its per se adherence to international law, U.S. refugee policy as enforced has caused a de facto violation of that same body of law. Stringent restraints such as admittance of only trivial numbers of Syrians representing less than one percent of total refugee admissions per year, effectuates a policy that is discriminatory in effect with less than one percent of total admissions being of Syrian descent. Furthermore, notwithstanding his per se adherence to domestic law, President Barack Obama has failed to utilize sections of the U.S. Code that allow for increases in refugee admittance during times of emergency. Using scare tactics as their weapon, politicians have ramped up protectionist measures akin to those seen in WWII and questioned in the controversial case Korematsu v. United States. However, there is no evidence to support the conclusion that large amounts of terrorists are sneaking into the country disguised as refugees. Although in the past year the U.S. has moved forward in bringing in more refugees, recent legislative proposals aim to postpone and prevent Syrians from entering the country. While addressing the refugee crisis must balance both national security concerns and humanitarian needs, fear mongering should not overshadow the dire situation that these innocent victims face. The best solution to deal with the burgeoning threat to this large group of helpless individuals is an interagency taskforce charged with developing a policy to balance national security concerns with humanitarian needs. Without a taskforce to balance these factors, the result may be disastrous.

Keywords: Refugee Laws, Immigration Law, Humanitarian Crisis, Law Reform, Humanitarian Law.

Feature
6. The Rise and Fall of Eunomia by Frédéric Mégret of McGill University Faculty of Law & Alexandra Harrington of The State University of New York at Albany, at 159-88.