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Integrating Legal Approaches to Migration

Kasey McCall-Smith

in Diversity and Integration in Private International Law

For some years now, the international community has recognised the need to recalibrate migration discourse and clarify the distinct, positive and necessary features of migration. To manage the ... More

For some years now, the international community has recognised the need to recalibrate migration discourse and clarify the distinct, positive and necessary features of migration. To manage the complexities of global migration and not waste effort ‘reinventing the wheel’, it is crucial to build on existing law and policy frameworks in all efforts to address today’s global frenzy over migration, particularly the 2030 Agenda for Sustainable Development and its 17 sustainable development goals. The challenge in connecting global migration with other processes, promoting linkages and avoiding overlap is one that must be deftly navigated. This chapter examines the Global Compact for Safe, Orderly and Regular Migration as an avenue for maximising the efficiency of current regulatory frameworks, identifying gaps, promoting synergies, and utilising the connective capabilities of public and private international law to foster further integration in a highly diverse panoply of governance frameworks.Less

The Bracero Program and the Nationalization of South Texas Labor Relations

John Weber

in From South Texas To the Nation: The Exploitation of Mexican Labor in the Twentieth Century

This chapter argues that the Bracero Program, begun as an international agreement between the US and Mexico to fill agricultural labor shortages during World War II, served as a way for agricultural ... More

This chapter argues that the Bracero Program, begun as an international agreement between the US and Mexico to fill agricultural labor shortages during World War II, served as a way for agricultural interests in the rest of the nation to recreate the labor supply conditions enjoyed by the growers of South Texas. As a result, the Bracero Program mobilized large numbers of foreign workers, stripped of their basic rights of choice and mobility, for use all over the country. The Bracero Program ended in 1964, but its importance and effects have lasted much longer. This chapter also deals with the overwhelming importance of Texas as both a model and an obstacle to the smooth running of the system throughout its existence. From its inauguration in 1942 as a temporary wartime emergency measure until its quiet demise in 1964, the Bracero Program took the spirit of the deeply unequal labor relations of South Texas and spread them to the rest of the nation as a supposedly rational, necessary response to the exigencies of the agricultural labor market.Less

SME Participation in Government Procurement Markets: Legal and Policy Considerations under the WTO Agreement on Government Procurement and the UNCITRAL Model Law on Public Procurement

Caroline Nicholas and Anna Caroline Müller

in Small and Medium-Sized Enterprises in International Economic Law

This chapter considers policy measures to increase the participation of SMEs in government procurement and their potential economic and social policy benefits. It considers the scale and importance ... More

This chapter considers policy measures to increase the participation of SMEs in government procurement and their potential economic and social policy benefits. It considers the scale and importance of government procurement, and barriers to SME access to these markets. While some SME support policies are often considered to run counter to fundamental goals of government procurement (notably preference policies that may reduce competition and transparency), the chapter explains that many SME policies in fact support efficient and effective government procurement. It explores the synergies between such SME policies and measures designed to ensure cross-border access to government procurement markets. It considers relevant provisions in the WTO Agreement on Government Procurement and the UNCITRAL Model Law on Public Procurement, and concludes that their recent revisions to promote transparency and effectiveness in the pursuit of these policies are welcome, but that further work to ensure their effective application in practice is needed.Less

The First Edinburgh Chair in Law: Grotius and the Scottish Enlightenment

John W Cairns

in Enlightenment, Legal Education, and Critique: Selected Essays on the History of Scots Law, Volume 2

This chapter examines the development of teaching from the chair of Public Law and the Law of Nature and Nations at the University of Edinburgh during the Scottish Enlightenment, with particular ... More

This chapter examines the development of teaching from the chair of Public Law and the Law of Nature and Nations at the University of Edinburgh during the Scottish Enlightenment, with particular emphasis on the intellectual content of the classes and the politics of professorial appointments. For the first half-century, law teaching from the chair was intermittent. However, this does not mean that the holder was incapable or unlearned. When the holder of the chair did teach, the class was based on Hugo Grotius' De iure belli ac pacis libri tres. The chapter first provides an overview of legal education in Scottish universities before profiling the law professors who were appointed to the new chair between 1707 and 1831, including Charles Areskine, William Kirkpatrick, George Abercromby, Robert Bruce, James Balfour, Allan Maconochie, and Robert Hamilton. Robert Bruce was the last holder of the chair to teach Grotius' natural law.Less

Making More Space: Reforms from 1990 to 2010

Karla W. Simon

in Civil Society in China: The Legal Framework from Ancient Times to the "New Reform Era"

This chapter analyzes the “new” set of regulations, beginning with the 1998 regulations on social organizations and the noncommercial institutions (min ban fei qiye danwei), and then moving to the ... More

This chapter analyzes the “new” set of regulations, beginning with the 1998 regulations on social organizations and the noncommercial institutions (min ban fei qiye danwei), and then moving to the 2004 foundation regulations. One of the critical questions is the extent to which the 1989 events in Tian'anmen Square hardened the attitude of the government against social organizations. Another significant event that caused many officials in the security apparatus to harden their attitude toward civil society was the surrounding of Zhongnanhai (where the high party officials live and work) by Falun Gong practitioners in 1999. This was, however, generally a period of “reform and opening up” for mainstream civil society itself, as open discussion with foreigners about the design of the regulatory framework for civil society organizations (CSOs) in China was encouraged. The chapter also considers the laws adopted during this era of legal change—the Public Welfare Donations Law and the Trust Law, which governs charitable trusts.Less

Toward a Framework for Sovereign Debt Restructuring: What can Public International Law Contribute?

Robert Howse

in Too Little, Too Late: The Quest to Resolve Sovereign Debt Crises

Chapter 14: analyzes some of the possible elements of an international law approach to a multilateral framework for sovereign debt restructuring. The chapter draws extensively from the deliberations ... More

Chapter 14: analyzes some of the possible elements of an international law approach to a multilateral framework for sovereign debt restructuring. The chapter draws extensively from the deliberations and publications of the UNCTAD Working Group. He proposes the creation of a “counter-framework” using soft-law instruments of a kind generated by various UN processes and institutions, including the International Law Commission (ILC), UNCITRAL, and UNCTAD. The “counter-framework” would offer different norms, fora, legal mechanisms, expertise and analyses to those that dominate the existing informal framework (IMF, Paris Club, US Treasury, financial industry associations, private law firms, creditors’ groups, etc.). It would offer alternatives for borrower-lender relationships and the restructuring of debt, alternatives which if the analysis of this chapter (and the other chapters of this book) is correct, would benefit both sovereign debtors and creditors. This proposal might be of particular interest to states that could be sources of new finance and do not want to keep with the existing informal framework (like perhaps China).Less

Theory and Practice in the Natural Law of Christian Thomasius

Ian Hunter

in Philosophy, Rights and Natural Law: Essays in Honour of Knud Haakonssen

Christian Thomasius’s natural law works are usually interpreted as providing a philosophical theory for his positive public law treatises on church and constitutional law. This chapter argues to the ... More

Christian Thomasius’s natural law works are usually interpreted as providing a philosophical theory for his positive public law treatises on church and constitutional law. This chapter argues to the contrary that Thomasius’s public law writings are founded not in his natural law but in positive imperial public law as this was received in the state of Brandenburg-Prussia. In this context, the central role of his natural law was as a program for the pedagogical formation of law students.Less

Disastrous Grand Strategy: US Humanitarian Assistance and Global Natural Catastrophe

Julia F. Irwin

in Rethinking American Grand Strategy

This chapter traces the evolution of the US government’s international disaster assistance policy, beginning at the dawn of the nineteenth century and culminating with the landmark enactment of ... More

This chapter traces the evolution of the US government’s international disaster assistance policy, beginning at the dawn of the nineteenth century and culminating with the landmark enactment of Public Law (P.L.) 94–161, the International Development and Food Assistance Act of 1975. Avowing the United States’ readiness to provide humanitarian relief in the wake of foreign catastrophes, it empowered the president (or his appointed delegates) to furnish relief and short-term rehabilitation assistance to any country affected by “natural or manmade disasters.” With this act, US international disaster assistance was officially codified as an instrument of US foreign policy. The chapter then analyzes the state's gradually expanding role in the humanitarian sphere in light of the shifting architecture of nineteenth- and twentieth-century US grand strategy. If a grand strategy framework can help make sense of US international disaster assistance, studying the history of catastrophes and disaster relief—and the history of humanitarian aid, more broadly—also stands to say something new about US grand strategy itself.Less

Administrative Procedure and Judicial Review in Lithuania: Agnė Andrijauskaitė

Agnė Andrijauskaitė

in Judicial Review of Administration in Europe

This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of ... More

This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of Lithuania's 'unflinching' desire to join the European Union and was meant to strengthen the protection of individual rights and administrative accountability. Two cornerstone acts in this regard, the Law on Public Administration and the Law on Administrative Proceedings (APA), were adopted in 1999. Administrative courts were also established in the same year. Article 3 (1) APA spells out the general rule that administrative courts settle disputes arising in the domain of the public administration. All the acts and measures excluded from the competence of administrative courts are listed in Article 18 APA, which establishes the so-called negative competence of administrative courts. Meanwhile, Article 91 (1) (3) APA provides that the impugned administrative decision may be quashed if 'essential procedural rules intended to ensure objective and reasonable adoption of an administrative decision were breached'.Less

The Globalization of Cotton

D. Clayton Brown

in King Cotton in Modern America: A Cultural, Political, and Economic History since 1945

This chapter discusses issues relating to the globalization of the cotton industry. Topics covered include the passage of the Agricultural Trade Development Act, or Public Law 480 (PL 480) in 1954, ... More

This chapter discusses issues relating to the globalization of the cotton industry. Topics covered include the passage of the Agricultural Trade Development Act, or Public Law 480 (PL 480) in 1954, which provided for the export sale of surplus commodities for foreign currencies rather than dollars; the National Cotton Council’s establishment of the Cotton Council International (CCI) in 1956, tasked with making contractual agreements with the USDA-FAS and foreign governments for marketing development; establishment of the International Institute for Cotton (IIC); shifts in world cotton trade; trading blocs; cotton and the WTO; and the implementation of NAFTA and CAFTA.Less

New cooperative horizons (1955–61)

Heike Wieters

in The NGO Care and Food Aid from America 1945-80: Showered With Kindness'?

Chapter 4 traces CARE’s development during a period of recurring organizational crisis and economic instability. It analyses how CARE’s management and board of directors dealt with organizational ... More

Chapter 4 traces CARE’s development during a period of recurring organizational crisis and economic instability. It analyses how CARE’s management and board of directors dealt with organizational overextension and the need to find both a new humanitarian mission and more sustainable business model. CARE began to apply for government-donated food surplus resulting from structural agricultural overproduction in the United States. By delivering agricultural abundance such as milk powder, butter oil and other food staples to people in the developing countries, CARE successfully occupied a humanitarian market niche and established itself as a (neither entirely private nor entirely public) provider of food aid.Less

Spain: National Correspondents: Dr Juan Ferré and Prof Ángel Mª Ballesteros

in Rescue of Business in Europe: A European Law Institute Instrument

There are a set of rules set forth in the Insolvency Act (‘Ley 22/2003, of 9 July, Concursal’ or ‘LC’) which purpose is to avoid that debtors file for formal insolvency proceedings. These rules aim ... More

There are a set of rules set forth in the Insolvency Act (‘Ley 22/2003, of 9 July, Concursal’ or ‘LC’) which purpose is to avoid that debtors file for formal insolvency proceedings. These rules aim to: (i) establish safe harbours for Refinancing Agreements (‘Acuerdos de refinanciación’); (ii) stay enforcement actions in the pre-insolvency stage; and (iii) allow cramming down secured and unsecured creditors in the pre-insolvency phase. Further there are some tax rules aimed to facilitate out-of-court and in-court workouts. However, there is no state agency, judge, court or tribunal that offers assistance in the negotiation of an out-of-court workout. Less

The Current Structure of Special Education in Our Schools

Alice M. Hammel and Ryan M. Hourigan

in Teaching Music to Students with Special Needs: A Label-Free Approach

Legal wrangling, court decisions, and the timeline of a bill as it becomes law are not always met with public scrutiny or interest. However, there are many seminal moments that have shaped ... More

Legal wrangling, court decisions, and the timeline of a bill as it becomes law are not always met with public scrutiny or interest. However, there are many seminal moments that have shaped policies, legislation, and litigation in the areas of civil rights and the education of students with special needs. The keystone legislation examined in this chapter has continued to define us as a country and shape our public policy. Influenced by the civil rights movement, parents and advocates of students with special needs learned that true progress for their causes is steeped in the court houses and lawmaking bodies of our states, districts, and in Washington, DC. It is through legislation and litigation that change becomes reality. It was through this paradigm shift that the lives of students with special needs and their families improved. In addition, advocates learned that it is also possible to improve the quality of life for all students. It is through inclusion and an increasingly widened lens when viewing differences and diversity that all students (those with and without special needs) in our schools have the opportunity to learn and grow with those who are different. The path for all, then, is expanded and enriched for the experiences shared through an inclusive and diverse environment. While Linda Brown, and all other students who are African-American are now eligible to attend their neighborhood schools, students with special needs are often bused far from their neighborhoods to be educated with other students because the school system has decided to segregate them according to ability and disability. If Linda had autism today, she might have to ride a bus for an hour and a half (each way) to school every day when her local elementary school is no farther from her home than the Sumner School was in 1951. We clearly still have a long way to go in delineating the rights of all citizens to equal access under the law. The Brown v. Board of Education (1954) case was very important to the cause of those seeking to have students with special needs included in the public schools. Less

Public Health Policy

Marcus Klamert

in Specialized Administrative Law of the European Union: A Sectoral Review

The field of EU health law is difficult to define. One strand began with negative integration under the freedom to receive health-care services, as developed by the European Court of Justice in the ... More

The field of EU health law is difficult to define. One strand began with negative integration under the freedom to receive health-care services, as developed by the European Court of Justice in the 1990s. This case law on patient mobility has recently been codified and expanded in the Cross-Border Health Care (CBHC) Directive 2011/24/EU. Union health law concerns also the mobility of health-care professionals, by establishing a regime on the mutual recognition of their qualifications. Another strand of European health law has always displayed positive integration for certain specific products. The first Tobacco Products Directive was adopted in 1989, the first pharmaceuticals directive as early as the year 1965. Less

Public Law 480

Barry Riley

in The Political History of American Food Aid: An Uneasy Benevolence

By 1954, U.S. government-owned food stocks were expanding rapidly, the result of a broad failure in domestic agricultural policy. Not only had it been extremely costly for taxpayers to pay farmers ... More

By 1954, U.S. government-owned food stocks were expanding rapidly, the result of a broad failure in domestic agricultural policy. Not only had it been extremely costly for taxpayers to pay farmers for these unneeded commodities, but the surpluses threatened to destabilize agricultural markets. Congress determined that the subsidized sales of these commodities to overseas customers was a good way to reduce the size of domestic surpluses and passed legislation to sell them for local currencies, which would be reinvested in the recipient countries to spur growth, or to barter them for raw materials the United States needed. At the last minute, a grant program was added to the legislation providing food relief to undernourished people in the world’s poorer countries. President Eisenhower signed the bill in July 1954. This was the beginning of America’s modern international food aid programs.Less

Renunciation

Eileen H. Tamura

in In Defense of Justice: Joseph Kurihara and the Japanese American Struggle for Equality

This chapter recounts how President Franklin Roosevelt signed Public Law (PL) 405 on July 1, 1944, which amended the Nationality Act of 1940 to allow U.S. citizens living in the United States to ... More

This chapter recounts how President Franklin Roosevelt signed Public Law (PL) 405 on July 1, 1944, which amended the Nationality Act of 1940 to allow U.S. citizens living in the United States to renounce their citizenship during wartime. Although not stated explicitly, the law was aimed at dissident Nisei. As Manzanar Project Director Ralph Merritt remarked of the statute, “This is the first time in the history of a civilized nation that a government has permitted a citizen, during a state of war, to renounce his citizenship.” Officials had several motives for favoring such a law. Some sought to have renunciants exchanged for U.S. citizens detained in Japan. Indeed, the chairman of the House Immigration and Naturalization Committee, Samuel Dickstein, suggested that the law's provisions be publicized in the camps, to be followed by notices “calling for volunteers to go to Japan in trade for Americans.”Less

Making Waves: Schooling and Disability, Sexual Orientation, Religion, and Economic Class

Martha Minow

in In Brown's Wake: Legacies of America's Educational Landmark

The historic treatment of students with disabilities in many ways resembles racial segregation in schools. Brown’s influence in this field is clear but complicated. Also complicated are debates ... More

The historic treatment of students with disabilities in many ways resembles racial segregation in schools. Brown’s influence in this field is clear but complicated. Also complicated are debates over equal treatment of students who identify as gay, lesbian, bisexual, or transgendered. Religious students—and religious schools—elicit further variations on the educational equality debate with consequences for social integration and intergroup relations. Compulsory education laws in the United States for many years exempted students with mental and physical disabilities, and many school systems excluded such students or assigned them to separate institutions well into the 1970s. Before Brown, court challenges to this treatment of students with disabilities failed either on the assumption that the child’s impairments made schooling inappropriate or that the presence of the child with disabilities would harm the best interests of other children and the school. Even schools set up for students with disabilities could exclude a student by asserting that the child’s limitations would prevent educational progress. During the 1920s, communities established separate schools for students who were blind, deaf, or severely retarded, and many schools established separate classrooms for students who were considered to be slow learners. Misclassifications assigning students to separate classrooms or schools was not uncommon, and especially affected students who were immigrants or members of minority groups. This process of segregating persons with disabilities often relegated such persons to squalid residential institutions and imposed forced sterilization, justified in terms set by the eugenics movement. Those children with disabilities who did receive services did so largely in classrooms or schools removed from their peers. Parent advocacy organizations and civil rights activists challenged these practices, often with explicit references to Brown v. Board of Education. Parents and educators pressed for both more funding and experiments placing students with disabilities in regular educational settings. Integration, also called “mainstreaming” and “inclusion,” became a central goal through litigation, legislation, and advocacy for individual students, but for some children, advocates also pursued specialized instruction in separate settings. Intertwined with failures in the treatment of students with disabilities was the problem of racially discriminatory treatment. Less