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University of Bologna Law Review
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Open Access journal
ISSN (Online) 2531-6133
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The Right to Dignity of the Surrogate Mother
- Authors: Nensi Sinanaj
  Pages: 261 - 286
  Abstract: This article explores a different perspective on the right to dignity of the surrogate mother in commercial surrogacy arrangements under international human rights norms and philosophical principles. Here, I examine the concept of human dignity under the lenses of contemporary legal theory reflecting on the right to self-determination of the surrogate mother. This dignity-based approach serves for analysing how International Human Rights Law enables women to enter commercial surrogacy agreements on the basis of their contractual freedom, their reproductive rights, on the prohibition of non-discrimination and their labour rights. Under the lenses of economics and law, I examine how this practice carries the potential to empower the economic emancipation of women and their access to the labour market. Dignity as rights-constraining will reflect on the other side of surrogacy. I investigate the exploitative character of this practice and how it could present human rights abuses for the surrogate mother. Specifically, I focus my analysis on how surrogacy contracts could violate the bodily autonomy of the surrogate and potentially maintain gender inequality and reinforce gender stereotypes. After recognizing certain concerning aspects of individual surrogacy arrangements, I question whether outlawing surrogacy is the right response to this practice.
  PubDate: 2022-01-24
  DOI: 10.6092/issn.2531-6133/14253
  Issue No: Vol. 6, No. 2 (2022)
The Banality of Evil ('): The Strange(ly Quiet) Careers of Korematsu and
Hirabayashi in the Federal Circuit Courts, 1943‐2016
- Authors: Scott Hamilton Dewey
  Pages: 287 - 366
  Abstract: Korematsu v. United States (1944) and Hirabayashi v. United States (1943), the most famous Supreme Court cases associated with the tragic internment of Japanese Americans during World War II, now “live in infamy”, along with the likes of Plessy v. Ferguson and Scott v. Sandford, among the worst constitutional law train-wrecks of American legal history. Ironically, American courts and judges also used the two towering internment cases for their resounding language supporting racial equality and non-discrimination. In either guise, the cases came to cast a long shadow over America’s legal landscape. Thus, it may be somewhat surprising to discover that these two cases long led rather mundane and limited precedential lives in the federal circuit courts, serving repeatedly as precedents in ordinary cases concerning everyday applications of criminal procedure doctrines and displaying little of the brightly hopeful or darkly ominous power for which they would later be known. Whatever greater potential the two cases held, a careful tracking of all uses of the cases in court opinions shows that federal circuit courts mostly did not explore that potential until after it was “safe” to do so. In particular, although the Japanese Internment was fundamentally a legal and constitutional problem, federal courts proved to be largely unable to confront that problem meaningfully until after some sort of political “solution” was offered by Congress through formal apology and reparations to internment survivors in 1988. Only later did federal circuit judges use the two cases more aggressively, with Korematsu suddenly serving as a dire warning of the dangers of judicial reticence in resisting constitutional overreaching by the legislative or executive branches, while Hirabayashi was brandished to support strict, color-blind racial equality—long after civil rights progress was already waning.
  PubDate: 2022-02-22
  DOI: 10.6092/issn.2531-6133/14434
  Issue No: Vol. 6, No. 2 (2022)
Import Bans on Products from Forced Labor in the Trump Era
- Authors: Aleydis Nissen
  Pages: 367 - 382
  Abstract: On 30 September 2019, the United States prohibited the imports of five products suspected of being made with forced labor from companies all over the world. This article contextualizes these Withhold Release Orders from the perspective of international law and politics. While the Trump Administration’s blunt and protectionist trade policy has been widely criticized, this article argues that it might also have created an opening to rethink the multilateral trade regime that prioritizes free trade over the abolishment of forced labor.
  PubDate: 2022-02-28
  DOI: 10.6092/issn.2531-6133/14495
  Issue No: Vol. 6, No. 2 (2022)
Securitizing Notes of Small Businesses and Needy Workers
- Authors: Tamar Frankel
  Pages: 159 - 162
  PubDate: 2021-11-10
  DOI: 10.6092/issn.2531-6133/13812
  Issue No: Vol. 6, No. 2 (2021)
A New International Crime of Ecocide'
- Authors: Valeria Luz Puleo
  Pages: 163 - 170
  PubDate: 2021-12-01
  DOI: 10.6092/issn.2531-6133/13921
  Issue No: Vol. 6, No. 2 (2021)
Law in a Time of Corona: Global Pandemic, Supply Chain Disruption and
Portents for “Operationally‐Linked (but) Legally Separate” Contracts
- Authors: Deji Olatoye
  Pages: 171 - 238
  Abstract: The novel coronavirus (Covid-19) pandemic has resulted in the disruption of activities in major centres of global production, with adverse portents for contractual obligations across global supply chains. The global pervasiveness and dynamic propagation of the risks arising from contractual failures provides an opportunity to reconsider the nature and impact of mechanisms for excusing failure to perform contractual obligations under adverse circumstances (Excuse).
  Such mechanisms include those found in the general law (for example, frustration in common law and analogous doctrines in civil law traditions) and contractual clauses (for example, Force Majeure and hardship clauses). Establishing extant rights and obligations under current contracts may provide only limited illumination on how parties will address these failures. Principles in economics of contract (e.g. incomplete contract and transaction cost theories) and the commercial reality of global supply chains both suggest that parties tend to lean towards contract- and relationship-saving adjustments, rather than strict enforcement of rights. Therefore, this article analyses the doctrinal and contractual regimes of Excuse with a view to assessing their respective scopes for transaction and relationship saving. It also highlights the peculiar nature of supply chain relationships wherein exchange partners enter into a sequence of dyadic relationships aimed at delivering a good or service to the end user. The tension between that operational logic and the legal principle of privity of contract makes these relationships – undergirded as they are by what we call “operationally-linked (but) legally separate” (O.L.L.S.) contracts – peculiarly vulnerable to mismatches in their Excuse regimes. Mismatches occur where failure to perform a determinant contract is more easily or much earlier excusable than in a dependent contract within the same chain operation. This may, in turn, exacerbate risks of supply chain disruptions in a pandemic scenario. The article designs a framework by which the doctrine-contract complex in the regimes may be used to test the dynamic scenarios of a global pandemic for the purpose of scanning for such mismatches. This framework will be useful in both post-event circumstances, as parties embark on relationship-saving negotiations, and in designing ex ante risk management measures. Through the understanding of the peculiarity of supply chain relationships and the O.L.L.S. contracts, this article also proposes to open up new directions in which the insights therefrom might be useful. An example suggested and prefatorily explored in this article is in the “governance beyond privity” conundrum in the context of supply chain disruption. Another is its potential contribution to the emerging multifactorial approach to determining frustration of contract in some common law courts.
  PubDate: 2021-12-20
  DOI: 10.6092/issn.2531-6133/14076
  Issue No: Vol. 6, No. 2 (2021)
The Conflict of International Agreements in Air Law: A Reasonable Plea for
Conventional Uniform Rules
- Authors: Mohammed El Hadi El Maknouzi, Iyad Mohammad Jadalhaq
  Pages: 239 - 260
  Abstract: This note surveys the roots of a phenomenon called “conflict of international agreements”, which forms a distinctive source of legal uncertainty in trans-border disputes, with a particularly high incidence in the field of air law. The authors suggest that the conflict of international agreements should be understood as an added layer of legal complexity in trans-border air law disputes, beyond the customary questions around applicable law and jurisdictional competence that are commonplace in private international law. The first part of this study maps the main factors that have led to the emergence of this peculiar conflict in the domain of air law. Among them are the following: the fact that national air law legislations have typically been developed by catching up with prior international regulatory initiatives (to the point of inserting, in national provisions, named references to specific treaties); the development of international air law through different generations of treaties with non-overlapping memberships; the possibility for different degrees of membership within the same treaty, and the succession of states. All these factors contribute to the possibility that a judge, tasked with a trans-border air law dispute, might first need to determine the international agreement under which the dispute falls, to settle preliminary questions of applicable law or jurisdiction. Or that he or she might end up—after following the trail of foreign legislation when settling a conflict of laws—having to apply treaties that might not be compatible with the international obligations of his or her jurisdiction of belonging. The second part of this study then looks at a sample of existing strategies for resolving such uncertainty, by looking at the Vienna Convention on the Law of Treaties, the jurisprudence of the French Conseil d’État, and doctrinal commentary. As a result, the study finds that the horizontality of international law and the difficulty posed by non-overlapping treaty memberships (so that different rules apply to different sets of states) is, at present, insurmountable. This leaves the possibility open, for instance, that a competent court might have to choose between (i) deferring to private international law norms that might lead to the application of incompatible treaties binding in a foreign legal system, and (ii) applying the different treaties ratified by the state of the competent court. This is what case-by-case decision-making at the point of adjudication might entail, in the absence of a renewed impetus for harmonisation. It is on this basis that the authors conclude with a reasoned plea for new initiatives aiming at greater uniformity in international air law.
  PubDate: 2021-12-27
  DOI: 10.6092/issn.2531-6133/14144
  Issue No: Vol. 6, No. 2 (2021)

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