The European Court of Human Rights Goes to School: The “Headscarf Cases” (Leyla Sahin v. Turkey and Dahlab v. Switzerland) as Unjustified Restrictions of Religious Practice

Abstract: As guarantor of individual liberties in the Council of Europe’s 47 member states, the European Court of Human Rights (ECtHR) is tasked with balancing the competing rights of citizens against citizens and states against citizens. In a group of controversial continent-spanning cases dealing with the right of female Muslim students and teachers to wear Islamic headscarves in public schools–known collectively as the “headscarf cases” and called by one scholar “almost a touchstone for the reflection on the presence of Islam in the public space”–the Court has found itself adjudicating between the sometimes contradictory values of state-sponsored secularism and religious freedom.

In this article, I argue that the ECtHR has failed miserably in the “headscarf cases” at fairly balancing these rights. I distill the reasoning used by the Court in Dahlab v. Switzerland and Leyla Sahin v. Turkey, the two most significant of these cases, into four major arguments: Argument from Religious Pressure, Argument from Political Symbolism, Argument from Gender Inequality, and Argument from Subjugation of Women. Using this novel argument categorization, I show that rather than protecting the rights of individuals to practice their religion freely with only the necessary restrictions, it has defended the actions of over-reaching national governments infringing on those rights under the banner of secularism. I also argue that these decisions hint that the Court does not understand the multifaceted meaning of the Islamic headscarf and has a generally negative view of Islam, both of which color its judicial decisions.

Author: Oren Fliegelman is a student at Princeton University, majoring in Politics.

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On The Regulation of Conflict Minerals

Abstract: Conflict minerals originate from the Democratic Republic of Congo (DRC) and surrounding countries and have partially financed armed groups for more than a decade. While they might be traded globally for a variety of purposes, frequently they are utilized as components of highly desired electronic products. In 2010, the United States became the first country in the West to legislate against conflict minerals when it passed Section 1502 of the Dodd-Frank Consumer Protection Act. This section, while not prohibiting the import of conflict minerals, requires companies doing business in the U.S. to disclose whether their products contain minerals from the DRC and surrounding region, and, if so, whether the trade of these minerals funded armed groups active in the area. Domestically, the law has faced legal challenges by members of the electronics industry negatively impacted by its operation.

Notably, the law has resulted in a de facto embargo on Congolese minerals, as companies have simply divested from the DRC in an attempt to avoid being branded as financers of war and to side-step the law’s regulatory impositions. In spite of this de facto embargo, there has been very little discussion in the United States about whether the law violates any World Trade Organization trade agreements. Nevertheless, this article notes arguments against the legal validity of American regulation of conflict minerals by considering challenges to the U.S.’ Country of Origin Labeling (COOL) provisions, which mandate disclosures about traded livestock, and the Kimberley Process Certification Scheme (KP), which seeks to eliminate the trade of conflict (blood) diamonds. In short, the legality of the U.S.’ regulation of conflict minerals is not a settled issue; instead, this question merits greater discussion than it has received.

Author: Michael Kinzer is a fourth-year at American University, majoring in International Studies.

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Economic and Legal Aspects of the Failing Firm Defense

Abstract.
This article outlines the application of the failing firm defense in cases of merger policy. The first section outlines the economic consequences of allowing a merger where one party to the merger is struggling financially. This is followed by a discussion of the failing firm defense from the perspective of U.S. and E.C. competition law, including key cases where it was invoked. The final section examines its use in the context of an economic downturn and whether it was influential in the outcome of the Musgrave-Superquinn case.

Author.
Graeme O’Meara graduated from Trinity College, the University of Dublin in 2012 with a Bachelor of Arts in Economics.

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The Concept of Private Property in European Legal History: the Aristotelian and Belgian Cases

Introduction.
The property law of Belgium has a long history. This article attempts to trace current Belgian property law back to Aristotle’s philosophy. The scope of the argument to be developed, however, is limited: rather than attempting to establish hard, direct links between the two, the focus is on conceptual similarities, which may be taken to suggest an indirect influence of Aristotle’s ideas on Belgian property law.

Five parts comprise this essay. In this introduction, a general background of Aristotle’s Greece is provided. Part 2 discusses Aristotle’s ideas on property, and part 3 presents the key concepts of modern Belgian property law. In part 4, Aristotle’s ideas are compared to Belgian property law concepts to identify similarities. Part 5 sets forth conclusions.

Author.
Darius Bergkamp is a fourth-year in the College, majoring in Economics. He thanks Dr. Marc Vercruysse (Katholieke Universiteit Leuven) and Adam Swingle (University of Chicago, class of 2015) for their advice and comments on an earlier version of this article.

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Reframing Abortion in Argentina: Evolving Discourse Surrounding Abortion’s Reintroduction into the Political Spotlight

Abstract.
A “silent revolution” unfolding among the Argentine constituency—a ma- jority of which now supports the legalization of abortion—has resulted in a disconnect between the modernization of morality and the reflection of this evolution in the Argentine political sphere, where abortion policy has tradi- tionally been “shelved” by politicians and absent from Congressional debates. In light of Argentina’s socially and politically active constituency, surveys that reflect support for the legalization of abortion, and recent strides to increase women’s representation within the political sphere, it is surprising that Argen- tina’s abortion policy has until recently remained relatively unaddressed. This paper will describe how the discourse surrounding abortion has evolved over the last century in Argentina, and consider what implications this evolution holds for the political visibility of abortion policy there. I will argue that the dominant discourse surrounding abortion has shifted from a morally charged absolutist framework to a technical one, and that this shift carries with it the potential to bridge the divide between public discussion and private practice, and to bring abortion policy further into the Argentine political spotlight. Examining the evolution of this discourse is important because it will gener- ate a better understanding of the conditions that catalyze the liberalization of restrictive policies toward women. A more complete understanding of these factors will allow policymakers to more effectively frame abortion-related dis- cussions and overcome the high political costs of supporting such contentious policies. An analysis of several primary sources, including the platforms of major Argentine political parties, international NGO reports, and popular discourse in newspaper articles, serves to illuminate such implications.

Author.
Emily Heaton graduated from the College in the spring of 2013 with a Bachelor of Arts in International Studies.

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Justice When Applied: Aquinas’ Justice and its Relationship with Jus Cogens

Introduction.
In the law, there is no concept more important than justice. For the purpose of this article, when I mention justice I do not intend to conjure its meaning abstractly and ambiguously. Rather, I intend to rely upon a determinate sense of the term: using reason to analyze facts in order to proscribe a virtuous remedy that will provide for the common good. For this is Thomas Aquinas’ conception of justice, which has provided the foundation for many of the conventions exercised in various legal systems today. In his works, Aquinas suggested that justice provides an outline for legal thinking and that from it we derive duty, right, and proportional equality. To demonstrate the importance of justice, in his works he used jus and lex interchangeably to mean law, suggesting he believed they were one in the same.

In the current era of almost purely positive law, arguably nothing is more akin to Aquinas’ sense of justice than the international legal principle of jus cogens. The peremptory norms inspired by this principle have the power to nullify treaties or domestic laws that are inconsistent with jus cogens norms and are explained, much like Aquinas’ principle of justice, through practical reasoning. While these concepts enjoy many similarities with one another, there are differences in the practical application of jus cogens in courts and the subject matters they cover.

In this article I intend to explain Aquinas’ theory of justice as interpreted by John Finnis, illustrate the principles behind jus cogens, and finally compare both principles. While jus cogens principles coincide with Aquinas’ conception of justice, issues of sovereign immunity, requirements of standing, and the manner in which states are recognized on the international stage prevent jus cogens from being applied in many instances. These hurdles therefore frequently preclude the enforcement of jus cogens norms, obstructing the justice they are designed to provide. By pointing out these discrepancies between the theoretical and practical capacities for jus cogens to maximize justice on a global scale, I seek to promote dialogue about how jus cogens can be revived and how the doctrine might be given the teeth it deserves.

Author.
Charles Rodriguez graduated from the College in the spring of 2011 with a Bachelor of Arts in English Language and Literature.

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