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Of Great Fears and Greater Hopes: The GPH-MILF Framework Agreement on the Bangsamoro

By: Celeste Marie R. Cruz[*]

Pro­logue

Peace and eco­nom­ic devel­op­ment have long remained elu­sive to the con­flict-torn region of Mus­lim Min­danao in the Philip­pines. Since the late 1960s, the Con­flict in Min­danao, led by a seces­sion­ist inde­pen­dence move­ment of the Islam­ic minor­i­ty in a pre­dom­i­nant­ly Catholic coun­try,[1] has led to an enor­mous loss of life and suf­fer­ing, claim­ing an esti­mat­ed 120,000 lives and dis­plac­ing more than 2 mil­lion peo­ple.[2] The ongo­ing peace process between the Gov­ern­ment of the Repub­lic of the Philip­pines (GPH), under Pres­i­dent Benig­no Aquino III, and the Moro Islam­ic Lib­er­a­tion Front (MILF) reached a sig­nif­i­cant mile­stone with the sign­ing of the Frame­work Agree­ment on the Bangsamoro[3] (Frame­work) last Octo­ber 15, 2012. The Frame­work seeks to estab­lish a “fed­er­al” type of sub-state in the said region[4] that is cur­rent­ly under the juris­dic­tion of the Autonomous Region in Mus­lim Min­dano (ARMM).

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The prohibition of surrogate motherhood in France

The French pro­hi­bi­tion of sur­ro­gate moth­er­hood, rest­ing on moral and eth­i­cal con­sid­er­a­tions, rais­es com­plex issues of pri­vate inter­na­tion­al law.

Sur­ro­gate moth­er­hood has been pro­hib­it­ed in France since 1991, under a deci­sion by the Cour de cas­sa­tion (France’s high­est court), (Cass. Ass. plén., 31/05/1991). This pro­hi­bi­tion was con­firmed in the bioethics law of 1994, and is cod­i­fied in arti­cle 16–7 of French Civ­il Code (“Civ­il Code”). Arti­cle 16–9 of the Civ­il Code makes this a pro­hi­bi­tion of pub­lic order (In France, pro­hi­bi­tions of ordre pub­lic or pub­lic order are manda­to­ry rules cre­at­ed uni­lat­er­al­ly by the state to pro­tect fun­da­men­tal val­ues of the soci­ety, and from which par­ties have no free­dom to dero­gate. A for­eign law applic­a­ble under a con­flict of laws analy­sis would be evict­ed if con­trary to a manda­to­ry rule). A sur­ro­ga­cy con­tract is null and void, and vio­la­tions are pun­ished by civ­il and crim­i­nal sanc­tions (civ­il sanc­tions are described in arti­cles 311–25, 325 and 332–1 of the Civ­il Code and crim­i­nal sanc­tions at arti­cles 227–12 §3 and 227–13 of the Penal Code).

The pro­hi­bi­tion is jus­ti­fied by dif­fer­ent moral and eth­i­cal con­cerns: to pre­vent chil­dren from becom­ing com­modi­ties trad­ed as mer­chan­dise between infer­tile cou­ples and sur­ro­gate moth­ers; to pro­tect the inter­est of chil­dren who are psy­cho­log­i­cal­ly at risk in such trans­ac­tion; and to pre­vent the exploita­tion of sur­ro­gate moth­ers who must relin­quish parental rights to the child after giv­ing birth. Sur­ro­gate moth­ers are usu­al­ly from low­er eco­nom­ic stra­ta and are eco­nom­i­cal­ly exploit­ed in this trans­ac­tion. Sta­tis­ti­cal­ly there is an inher­ent social divi­sion in this prac­tice. This is evinced by the fact that most sur­ro­ga­cy con­tracts require com­pen­sa­tion because very few women would bear some­one else’s child for free. This social divi­sion is not new – sur­ro­gate moth­ers were slaves in the days of the Bible and Ancient Rome.

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The Amendment of Spain’s Arbitration Act: A Promising But Unfinished Agenda

By Guiller­mo Bayas Fer­nán­dez
Attor­ney-at-law in Spain
Fun­dación Rafael del Pino schol­ar
NYU LL.M. Can­di­date, Class of 2011

Abstract

Last Sep­tem­ber, the Span­ish Gov­ern­ment sent to the Par­lia­ment a bill (the Bill) to reform the cur­rent Span­ish Arbi­tra­tion Act (Ley 60/2003, de 23 de diciem­bre, de Arbi­tra­je), which is now being dis­cussed in Con­gress. The Bill improves dif­fer­ent aspects of the exist­ing reg­u­la­tion, main­ly those con­cern­ing the action to set aside the award, arbi­tra­tors’ lia­bil­i­ty, arbi­tra­tion of cor­po­rate dis­putes and the effect of insol­ven­cy pro­ceed­ings on arbi­tra­tion agree­ments. How­ev­er, the pos­si­ble sup­pres­sion of dis­sent­ing opin­ions prej­u­dices arbi­tra­tion and the reg­u­la­tion on chal­lenge of judi­cial juris­dic­tion favors friv­o­lous attempts to avoid abid­ing by arbi­tra­tion agree­ments. respec­tive  Addi­tion­al­ly, the pro­posed assign­ment of func­tions among judi­cial bod­ies in arbi­tra­tion issues lacks coher­ence and does not cre­ate a long-demand­ed uni­fi­ca­tion appeal on arbi­tra­tion mat­ters. While this arti­cle wel­comes some of the intend­ed mod­i­fi­ca­tions, it rais­es con­cerns that Spain might be los­ing a unique oppor­tu­ni­ty to adopt a mod­ern reg­u­la­tion that would advance its chances of becom­ing a prime inter­na­tion­al arbi­tra­tion seat.

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Prisoners’ voting rights: a success story for the enforceability of the ECHR?

By Emi­ly MacKen­zie, NYU School of Law, (LL.M Can­di­date, 2011)

The last week has seen a tense dis­course in polit­i­cal and legal cir­cles in the UK cen­ter­ing on pris­on­ers’ vot­ing rights. This dis­cus­sion in some sense rep­re­sents the cul­mi­na­tion of five years of debate about the enforce­abil­i­ty of judg­ments made by the Euro­pean Court of Human Rights (ECtHR). In March 2004 the ECtHR held unan­i­mous­ly in Hirst v UK that the UK’s blan­ket ban on pris­on­ers vot­ing vio­lat­ed Arti­cle 3 Pro­to­col 1 of the Euro­pean Con­ven­tion on Human Rights (ECHR). Despite the rejec­tion of the UK’s appeal to the Grand Cham­ber, and the oblig­a­tion under Arti­cle 46 ECHR to enforce Stras­bourg judg­ments, the gov­ern­ment has to date failed to enact legal reform to imple­ment this deci­sion. Whilst there has been an ongo­ing con­sul­ta­tion, it is not over­ly cyn­i­cal to describe the process as mere­ly ‘going through the motions.’ The unex­plained delays, refusal to enter­tain the option of allow­ing all pris­on­ers to vote, and the government’s con­sis­tent expres­sion of its dis­agree­ment with the rul­ing all attest to this con­clu­sion.

Repeat­ed crit­i­cisms by the Coun­cil of Europe came to a head when the gov­ern­ment failed to act on any of the pro­pos­als in time to allow pris­on­ers to vote in the June 2010 elec­tion.  Last week, how­ev­er, UK news­pa­pers report­ed that the new coali­tion gov­ern­ment is final­ly going to imple­ment the judg­ment. (See cov­er­age by The Guardian here.)  The exact pro­gram and timescale of reform remain unclear, but it seems to be gen­er­al­ly accept­ed that a change is in the off­ing. The gov­ern­men­tal atti­tude remains, how­ev­er, that such reform is some­thing imposed on the UK by Europe, that it is not some­thing that the gov­ern­ment wants, and that they will apply it as restric­tive­ly as pos­si­ble. In light of this con­tin­ued ret­i­cence, one may ask: why after five years of stalling is the gov­ern­ment final­ly giv­ing in?

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The International Relations Value of Criminal Tribunals

By Gra­ham Dumas, (J.D. Can­di­date 2011)

Much has been made in recent(ish) lit­er­a­ture about the defects of crim­i­nal tri­bunals in post-con­flict soci­eties. Mul­ti­ple authors over the past decade have right­ly not­ed that such fora have dubi­ous pos­i­tive effects on the tran­si­tion­al jus­tice process when viewed inter­nal­ly: tri­bunals fail to deter war crim­i­nals either because the chances of pros­e­cu­tion are very low, or because offend­ers act with­in the con­text of over­whelm­ing social stress, often believ­ing they are work­ing for the greater good of soci­ety; as a mea­sure of ret­ribu­tive jus­tice, tri­bunals fail because the vast major­i­ty of per­pe­tra­tors go unpun­ished; tri­als may upset the del­i­cate bal­ance of peace and con­cil­i­a­tion, which in the end is the bedrock of ongo­ing sta­bil­i­ty in post-con­flict soci­eties. The list is long, and the points are large­ly valid.

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