Current Issue

  • Volume 33,
  • Number 1 -
  • Fall 2022

Articles

Paternalism in International Human Rights Law
Lucas Lixinski & Noam Peleg
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This article argues that international human rights law (IHRL) at a system-wide level produces paternalistic effects that undermine the work it is meant to do for rightsholders. Analyzing the work of four key United Nations human rights treaty bodies, we show how institutional arrangements exclude rightsholders from having a say on their own interests in what IHRL should mean for them, and we are instead left with a body of norms, guidelines, and institutions with self-serving dynamics that reinforce the position of IHRL institutions and only secondarily benefit rightsholders.

Law Over Legalism: International Court Legitimacy in Lautsi v. Italy
Sebastián Guidi
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2009 brought an existential crisis to the European Court of Human Rights (ECtHR). In November, it unanimously ordered Italy to remove crucifixes from public schools. Backlash was unprecedented. The government promptly announced it would not comply. Politicians and social actors all across the political spectrum harshly criticized the decision and bashed the Court. Ten European countries joined Italy in referring the case to the Grand Chamber of the Court, which reversed the decision in 2011. The storm abated. Lautsi v. Italy likely received the most public attention of any ECtHR judgment. Much of the Court’s subsequent case-law was decided with an eye on avoiding another Lautsi.

This Article analyzes the social and political reactions to the Lautsi judgment in Italy in order to answer urgent questions in international law: how do the decisions of international courts obtain legitimacy, and why are they facing increasing trouble in doing so?

Lautsi and its aftermath suggest that international courts' decisions are not legitimated merely through the soundness of their legal reasoning, but also by their ability to be perceived as consistent with national identity. Political debate will strive to situate a controversial decision as aligned with national values and mores. A successful international judicial decision is one that helps a community to find its better self.

Notes

New Perspectives on Iran: The Path to Progressive Family Law Before the Islamic Revolution
Neeki Memarzadeh
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A progressive Iranian women's rights movement has slipped through the cracks of mainstream scholarship. In the 1960s, Iranian women rallied for progressive family law reforms; their efforts culminated in the Family Protection Law of 1967. This note provides an alternative view of the women's rights movement in the Middle East and highlights how a social movement gave rise to comprehensive and progressive family law reform. Over the last century, Iran has been under authoritarian rule, first in the form of a monarchy and now in a theocracy. In spite of this, Iranian women have been steadfast in the fight for freedom. In 2022, Iranian women of all ages, faiths, and socioeconomic backgrounds have led an unprecedented uprising against their government. For the first time since 1979, there is hope for democracy in Iran. This note shines a light on the road to restoring women's rights in Iran.

Federal Recognition of Native American Tribes in the United States and the International Right to Self-Determination: Why Congress Should Exercise Its Constitutional Authority to Federally Recognize the Lumbee Tribe
James Ennis Street
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Native American tribal nations covet state and federal tribal recognition. The Lumbee Tribe is one of those tribes. Though North Carolina has granted the Lumbee Tribe State recognition, the Lumbee Tribe's 134-year-long quest for Federal recognition has not been successful. Neither of the two types of Federal Recognition – Administrative and Congressional – have permitted the Lumbee Tribe to benefit alongside the other federally-recognized Tribes from increased respect, sovereignty, and resources. Instead, the Lumbee Tribe has been spun around by the regulatory recognition rigmarole.

In this article, I first explore arguments for and against federal recognition of the Lumbee Tribe. Next, I investigate the long-standing debate between Congressional and Administrative recognition. Finally, against this backdrop, I propose two solutions. First, Congress could independently recognize the Lumbee Tribe. Or second, Congress or the BIA could modify the federal recognition process to ensure that Native American tribes, like the Lumbee Tribe, have a fair and just opportunity to petition for and receive recognition.