Cardozo School of Law: Dissertations

Permanent URI for this collectionhttps://hdl.handle.net/20.500.12202/8379

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  • ItemEmbargo
    Toward a rights-based model of economic sanctions
    (Cardozo School of Law, Yeshiva University, 2021) Rowhani, Seyed Mohsen; Kestenbaum, Jocelyn Getgen; Damrasch,  Lori Fisler; Flaherty, Martin S.; Yablon, Charles M.
    This Paper examines the rights-based boundaries of the United Nations (“UN”) sanctions as well as unilateral sanctions by classifying them as embargoes against States, major sectors and entities, and targeted sanctions against individuals and micro entities. For the UN embargoes, its Charter’s Preamble and Articles, the proportionality principle, and the preemptive norms of jus cogens are all investigated. It also analyzes some recorded rights-based challenges in the International Court of Justice (“ICJ”) and the European Court of Justice (“ECJ”) for the UN targeted sanctions, highlighting that the Security Council’s (“SC”) targeted sanctions require reconsideration and independent judicial review.¶ Sanctions imposed unilaterally or without the approval of SC must adhere to the rules specified in international law sources such as the UN Charter, as well as the boundaries of other rights-based treaties for their member States. These measures should also be consistent with CIL as established by opinio juris and State practices. By assessing embargoes against Russia and China, as well as the Magnitsky Act for targeted sanctions, the Paper analyzes how sender States justify their sanctions based on the CIL’s framework and erga omnes obligations.¶ Despite the fact that since the 1990s, embargoes have become less harmful in terms of collateral humanitarian effects to people who are not the subjective wrongdoers, yet they have been widely criticized for having some of the similar negative effects on human rights. In this regard, the Paper proposes a three-step rights-based model with a specific policy objective imposed by a sanctions coalition while taking into account all vulnerable rights during designation and implementation. These rights are highlighted to demonstrate how sanctions can proximately contribute to their violations. Finally, the Paper encourages international lawyers to consider a new shifting era, akin to the 1990s, in which a more realistic, rights-based economic sanctions model is devised and implemented.
  • ItemOpen Access
    The Unconscious of the Indian Constitution: Traumatic Histories and Repetitions
    (Cardozo School of Law, Yeshiva University, 2022-07) Suresh, Sabarish; Goodrich, Peter
    This thesis engages an examination of the violent disavowal of the Partition of India in the text of the Indian Constitution and subsequent judicial pronouncements. By closely examining the cartographic precursor to the making of the Constitution, the pictorial figures in the original ratified copy of the Constitution, and the archival histories of the provisions on language, federalism, and citizenship, this thesis argues that the Partition of India, the originary separation as it was, has been repressed and disavowed in traditional and contemporary constitutional law scholarship. By engaging a psychoanalytic methodology of reading history and historiography, this thesis excavates the displacements, distortions, and disavowals in the making of the constitution but also the repetitions, repressions, and retaliations in subsequent constitutional history. The thesis also asserts that many contemporary divisive legislations is a result of the repression of the originary trauma which needs to be engaged with and closely and carefully worked-through, in order to preclude further repetition and aspire for reconciliation. The thesis incorporates a panoply of genres and methods, ranging from psychoanalysis, cartographic history and the philosophy of visual art to doctrinal examination and psychoanalytic jurisprudence. As such, the thesis is a rigorous and sustained interdisciplinary study of a postcolonial foundational text and its discourse, by paying close attention, as the title suggests, to its traumatic histories and subsequent repetitions.