INTERNATIONAL AND COMPARATIVE LAW

RESEARCH AGENDA

a. Homicides: A comparative analysis in North America, Europe, and Latin America

Western Criminal Justice systems tend to penalize crimes against life with severe sanctions and to discriminate among intentional and non intentional culpable homicides. My research project examines the common and convergent features of the criminalization of homicides in common law and civil law criminal justice systems. I am looking at the convergence phenomenon of these two systems to extract –under a comparative methodology- their salient common features. The fundamental hypothesis of this project is that despite the differences between common law, particularly in the US and Canada, and civil law, especially in Latin America and Europe, the treatment of the essential features of crimes against life in both common law and civil law jurisdictions has been remarkably similar, due to their common Western philosophy, secular objectives, and similar criminal policy objectives.

This research program has already resulted in the publication of an article in the University of Miami International and Comparative Law Review.

b. Sexual offenses: Time for a new paradigm

In the past thirty years, the rape law reform movement has profoundly changed rape and other sexual abuse criminal offenses. However, these reforms have failed to produce a substantial change in the way the Criminal Justice systems treat victims of sexual assault, and it has failed to deter the commission of rape.

The purpose of this research program is to analyze the product of this reform movement in Canada, some US states –New York, Florida, and California- and selected Latin American jurisdictions. Both in North America and in Latin America these reforms are the product of a Crime Control agenda and pressure from feminist groups, which failed to produce significant an adequate response to rape and gender equality in sexual relations. The pivotal hypothesis of this research project is that despite the importance of these reforms, they do not adequately offer a solution to the prevention and treatment of sexual abuse, particularly male sexual abuse against women. The research project will conclude by offering some suggestions for a much needed new wave of sex assault reform agenda.

This research project is framed within Feminist Criminology and Feminist Jurisprudence’s views on the way Criminal Law deals with sex offenses.

c. Interplay between International and Domestic justice systems

In this research endeavor, I am looking at the relationship between International Law and domestic law with special reference to the Canadian and United States contexts with the view toward proposing a model for departing from the traditional pattern of application of international law in domestic courts. This analysis is rooted on the premise that the domestic courts’ inconsistent and often erroneous interpretation of international sources –as well as the court’s use of intrinsic and non participatory methods of interpretation- serve to accommodate national policy in detriment of obligations assumed at the international level, which the traditional model of application of international law in the domestic sphere tends to promote. This traditional model has been dominated by internal methods of interpretation of international sources which are only concerned with an intrinsic examination of the legal texts in light of a systematic order which is considered determinative. Under this conception, the role of the domestic courts is limited to ascertaining in dichotomic terms which normative set –national or international- should be applied to a specific case. When the court opts to employ an international source it often does so under a domestic and often hegemonic rationale –even if it purports to do otherwise. This has resulted in a widely varied case law and unjustly diverse consequences, even in areas where the law has been amply harmonized. An internal judicial review of the international legal norms by resorting only to the canons of construction generally recognized by the international community may only lead to the results which serve to favor national policy in detriment of international obligations. My aim is to propose an alternative paradigm for departing from the traditional model of application of international law in domestic courts. This analysis can later be extended to the reception of international law in other jurisdictions. This research program has already resulted in the publication of two articles. I am in the process of writing another one.