Showing papers in "Berkeley Journal of International Law in 2014"

The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?

Abstract: In this Article, we explore a plausible legal framework within which to ground a support model of legal capacity and fully replace regimes of substituted decision-making. We ground our argument in the lived experience of people labeled with a disability. We focus particularly on individuals with cognitive disabilities, as they are generally more likely to have their decision-making ability called into question, and consequently, to have their legal capacity denied. However, we claim that such a system of support will ultimately benefit all individuals, not just persons with disabilities. The Article further examines reform efforts underway and the contributions of legislative change and judicial activism. Since the entry into force of the CRPD, many countries have begun to reform their laws on legal capacity, as described below in Section III. While significant challenges remain to ensure the full replacement of substitute decision-making regimes, international developments described in Sections III and IV, are clearly trending towards the recognition of support to exercise legal capacity.

The Euro-crisis and the courts : Judicial review and the political process in comparative perspective

Abstract: The Euro-crisis and the legal responses to it have profoundly changed the constitutional architecture of the Economic and Monetary Union (EMU) leading to the introduction of tighter budgetary rules, new mechanisms of financial stabilization and a comprehensive framework of economic adjustment for states in fiscal troubles. Yet, during the last years, the legal measures enacted by the European Union (EU) and the member states to respond to the crisis have increasingly fell prey to the scrutiny of courts, both at the national and supranational level. This paper provides a first comprehensive analysis of decisions by high courts in Estonia, France, Germany, Ireland, Portugal and the EU with the aim to discuss the role of the judiciary in fiscal affairs. The paper identifies a trend of increasing judicial involvement in EMU and explains it in light of the intergovernmental approach followed to respond to the Euro-crisis. As the paper argues, the choice of an intergovernmental management of the crisis, with frequent resort to international agreements outside the framework of EU law, has paradoxically produced greater judicialization than what would have occurred had the member states acted within the EU legal order. As the paper suggests, though, constitutional arguments related to expertise, voice and rights still plead in favor of letting the political branches take the lead in fiscal affairs. Hence, the paper concludes by indicating that future reforms of the EMU should be carried out through EU legislation – which is more legitimate in democratic terms (because of the political guarantees that surround law-making in the EU) and more secure in judicial terms (because of the more limited space for judicial overreach). Yet, the paper also underlines how the EU political process needs urgently to be reformed in order to improve its legitimacy and democracy.

Religiosity and Same-Sex Marriage in the United States and Europe

Abstract: In the United States and Europe there has been a remarkable change in the legal recognition of same-sex relationships over the past two decades. Twenty years ago, no nation recognized same-sex marriage. Today in the United States, thirteen states and the District of Columbia permit same-sex couples to marry, while another six provide varying legal recognition of same-sex relationships, such as partnerships and civil unions. In Europe, nine nations permit same-sex marriage, and an additional thirteen nations provide varying levels of recognition to same-sex couples.Support for same-sex marriage has been linked to age, political party, and education. In this paper, we examine the relationship between religiosity (defined as belief in God and importance of religion in a person’s life) and support for same-sex marriage. We caution that correlation is not causation, but find that in the United States and Western Europe, there is a strong correlation, while in Eastern Europe there is not.In the United States, the correlation is remarkably strong. The most religious states (the highest quartile of States in religiosity) all have constitutional bans of same-sex marriage. Of the twelve states in the lowest religiosity quartile, eight permit same-sex marriage, while three more provide some legal recognition of same-sex relationships. In Western Europe, the correlation is not quite as strong, but some of the exceptions can probably be explained by temporary mismatches between popular support and political leadership. In Eastern Europe, however, the correlation is weak, with low religiosity often combined with low support for same-sex marriage. We suspect that this is a result of the legacy of communism, and its suppression of religion.

Enforcement Cooperation in Combating Illegal and Unauthorized Fishing: An Assessment of Contemporary Practice

Abstract: The emergence of the exclusive economic zone (EEZ) in the 1970s placed potentially vast areas under national jurisdiction. From relatively modest territorial seas close to the coast as the only basis of fisheries jurisdiction for States, suddenly the international community embraced a new form of jurisdiction over resources that extended to fisheries up to 200 nautical miles from land. This extension brought over one third of the world’s oceans under national jurisdiction, or more importantly, approximately ninety percent of the world’s wild fish catch. While the possibility of bringing the resources of these areas under national control was of tremendous value to many developing States, the difficulties of enforcement over such areas were not so readily considered. Some States, notably the States of the South Pacific, but by no means restricted to them, simply lacked the capacity to police their waters and protect their resources from the depredation of others. A vast area subject to national jurisdiction would potentially require substantial assets at sea and in the air in order to effectively patrol, police, and enforce the new jurisdiction vested in States. For oil and gas exploitation, deployment of few if any coast guard or naval assets in the EEZ was not a huge difficulty, as exploitation of the seabed is a slow and expensive business. For fisheries, which can be far more cheaply exploited, and in a more transitory fashion, a lack of enforcement capacity represented a potentially serious impediment.

Should ICSID Go Gangnam Style in Light of Non-Traditional Foreign Investments Including Those Spurred on by Social Media? Applying an Industry-Specific Lens to the Salini Test to Determine Article 25 Jurisdiction

Abstract: The judicially created Salini test, commonly used to define investment under Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), has received both support and opposition during the decade since its creation. This article argues that new kinds of economic activities may be less likely to qualify as investments under a strict application of the Salini test and that an industry-specific analysis to determine Article 25 jurisdiction is more appropriate. While the industrial side to foreign investment remains relevant in the information age, the power of social media allows for investments focused on intangible values that may not pass a strict application of the Salini test. Korean entertainment companies investing abroad serve as examples of new kinds of activities that meet ICSID’s development goals but nonetheless may be denied access to ICSID unless new ways to apply the Salini test are found.

Same-Sex Marriage: Building an Argument before the European Court of Human Rights in Light of the U.S. Experience

Abstract: This article adopts a critical but constructive look at the case law of the European Court of Human Rights regarding same-sex marriage, in light of the recent US case law on the issue.