Showing papers in "Berkeley Journal of International Law in 2017"

International Law and Stability in Cyberspace

Abstract: Thank you to Saira for that kind introduction, and thank you to the Miller Institute, the Human Rights Center, and the Berkeley Center for Law and Technology for inviting me to give this talk. I am honored to be back at Boalt Hall. I’ve had the chance to spend a few days in Berkeley meeting with students and feeling nostalgic. I also spent some time at the beginning of my trip at the Stanford campus, where I was an undergraduate. Please do not hold that against me as you listen to my remarks! From my short time back, it is clear that this city and this law school remain as vibrant and socially engaged today as they were when I was a student here nearly 20 years ago.

To Be a Woman in the World of Sport: Global Regulation of the Gender Binary in Elite Athletics

Abstract: Indian sprinter Dutee Chand made headlines and history when she successfully challenged the validity of an international rule of athletics that disqualified her from competition because of the “masculine” level of naturally occurring testosterone in her body. The decision of the Court of Arbitration for Sport in Chand’s favor demonstrates that the International Association of Athletics Federations, despite being the duly authorized regulator of international athletics competition, does not operate unconstrained in policing the boundaries of sex and gender, particularly when it does so in a discriminatory manner. Rather, a number of accountability principles and mechanisms of so-called “global administrative law” must be satisfied to justify any rule for dividing elite athletes into binary sex categories. This paper considers the particular administrative law requirements that, pursuant to the landmark decision in Chand’s case, must characterize the development, implementation, and review of international sporting rules, particularly those that discriminate on the basis of sex or gender. In doing so, it illustrates that global administrative law has an important role to play in protecting and promoting gender equality in sport.

Women and the Making of the Tunisian Constitution

Abstract: This article attempts to glean from field interviews and secondary sources some of the sociopolitical complexities that underlay women’s engagement in Tunisia’s 2011-14 constitution-making process. Elucidating such complexities can provide further insight into how women’s engagement impacted the substance and enforceability of the constitution’s final text. We argue that, in spite of longstanding roadblocks to implement and enforce constitutional guarantees, the greater involvement of Tunisian women in the constitution drafting process did make a difference in the final gender provisions of Tunisia’s constitution. Although not all recommendations were adopted, Tunisian women were able to use an autochthonous process to edify the country and set the foundation for greater rights consciousness. This article also seeks to define the degree and nature of external influence on national efforts to advance women’s rights and on the drafting of Tunisia’s gender provisions. Although our research suggests that international forces had less of an impact on the Tunisian constitution-making process than we had assumed initially, we also found that many Tunisian women still saw themselves as part of a transnational women’s movement in which they were able to engage with a broad network of international women’s groups and transnational stakeholders. Our conclusion, thus, is that the Tunisian constitutional project, at least in regards to its gender provisions, can be regarded as intermestic in the sense that it drew directly or indirectly from both local and transnational sources. This shows that even when drafters are able to create constitutions that fit local contexts, they are still deeply influenced by international human rights provisions and relevant structural frameworks. Finally, this article summarizes some of the early efforts to translate constitutional guarantees into enforceable legislation. While we have deemed Tunisia’s drafting process as a success in participatory constitution-making, the country has a considerable way to go to ensure that “equal opportunities for men and women” as guaranteed in its new constitution become a reality for Tunisians in their daily modes of existence.

Recognizing Women’s Rights at Work: Health and Women Workers in Global Supply Chains

Abstract: In 2002, shortly after Paul Hunt was named as the first UN Special Rapporteur on the right to health, he presented his vision for promoting the right to health as a fundamental human right, clarifying the content of this right and identifying good practices at the community, national, and international levels. His vision remains true today for women’s health at the workplace in global supply chains. In an era where women and families must often migrate to find work, leaving behind their homes and support networks, the workplace can be a site where they can access resources and information to actualize their right to health. But in global supply chains, the workplace becomes a place that frequently puts up barriers to their right to health, if not direct violations. For women workers in these labor markets the violations to their right to health remain unrecognized due to the narrow focus on occupational safety and health violations by advocates, corporations, and others. Moreover, gender inequality and gendered biases within global supply chains and the legal frameworks meant to protect these workers exclude women’s experiences and ignore how the workplace impacts the personal lives of women workers.

Genocide Left Unchecked: Assessing the ICC’s Difficulties Detaining Omar al-Bashir

Abstract: INTRODUCTION ...................................................................................................150 I. BACKGROUND ON THE SITUATION IN DARFUR ................................................153 A. History of Conflict .........................................................................153 B. International Intervention .............................................................154 1. The ICC and the UNSC ...........................................................154 2. The Decision to Issue Arrest Warrants ...................................156 a. War Crimes ......................................................................157 b. Crimes Against Humanity ................................................158 c. Genocide ..........................................................................159 II. ANALYSIS ......................................................................................................162 A. The Significance of Bashir’s Prosecution on the Development of Genocide in the ICC ..................................................................162 B. Obstacles to ICC Enforcement ......................................................165 CONCLUSION ......................................................................................................168