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Creighton International and Comparative Law Journal CREIGHTON INTERNATIONAL AND COMPARATIVE LAW JOURNAL Volume 1 Spring 2011 Founding Editors Jeffrey S. Anderson Mark A. Hoff Amanda M. McMichael Katherine H. Stevens Michael W. Forker Danielle R. Kerckhoff Brandon E. Mehl Moderators Professors Bruce E. Aronson, Michael J. Kelly, Raneta J. Mack, Stephen C. Sieberson, Sean Watts, and David P. Weber TABLE OF CONTENTS INTRODUCTION 3 The Importance of International and Comparative Law: Exploring Complex Issues in a Global Community Raneta Lawson Mack ARTICLES 5 No Innocents Here: Using Litigation to Fight against the Costs of Universal Service in France Dorit Rubinstein Reiss 30 A Contribution from the Spanish Constitutional Court to the European Construction Process: Requesting Preliminary Ruling Pedro Tenorio 55 Religion and the Alien Tort Statute Chad G. Marzen 60 Ownership of Underwater Cultural Heritage in the Area Liu Lina 81 A New Class of Persons: Intercountry Adoptees and Postcolonial Theories of Cultural Hybridity George Waddington NOTES 100 Politics, Leverage, And Beauty: Why The Courtroom Is Not The Best Option For Cultural Property Disputes Nicole Bohe 117 Captain of a Ship of Fools on a Cruel Sea: How European Leadership May Sink the Proposed Arms Trade Treaty Adam Arthur Biggs THE IMPORTANCE OF INTERNATIONAL AND COMPARATIVE LAW: EXPLORING COMPLEX ISSUES IN A GLOBAL COMMUNITY Raneta Lawson Mack * Amanda Knox sits in an Italian prison convicted of the sexual assault and murder of her British roommate, Meredith Kercher, in Perugia, Italy. 1 While the criminal charges may be familiar to audiences in the United States, the criminal justice processes that resulted in Knox's conviction are probably a mystery to the vast majority of American observers. Perhaps as expected, this lack of familiarity with the Italian system led many Americans to disparage the Italian process as unfair and biased against foreign defendants. Consequently, while Ms. Knox's guilt or innocence was the focus of the criminal trial in Italy, the Italian criminal justice system was indicted and put on trial in the United States. When considered in a global legal context, however, different processes do not necessarily connote inferior or unjust systems. Indeed, a rush to judgment about the fairness of the Italian process as compared to the United States' system overshadows and perhaps inhibits a deeper understanding of the unique components that shape the Italian criminal justice system. When examining legal systems in other countries, an appreciation of how those processes function is crucial to determining whether specific procedures and guidelines have been administered in a just fashion. This type of contextual assessment shifts the focus from a paradigm that asks whether Italian processes are equal to those in the United States to an in-depth functional analysis that seeks to determine whether Italy has followed its own processes to reach a just result. The ultimate question of Ms. Knox's guilt or innocence will be decided by the Italian criminal justice system. Whether the Italian criminal justice system has dispensed justice in this particular case will likely be debated for years to come in the international court of public opinion aided by the insights and critical analyses of scholars around the world. Enhancing the depth and breadth of knowledge about global legal standards is a key function of comparative legal analysis, particularly in the criminal justice context. The comparative process introduces us to that which is dissimilar, calls upon us to explore those differences, and then compels us to examine the impact of those distinctions. In some cases, comparative analysis forms the basis to advocate for legal reform in one system or another. But, more often, a deeper understanding of individual systems is an end in itself. In sum, the comparative process enhances our understanding of disparate systems while simultaneously raising awareness of our own systemic successes and failures. Comparative legal journals provide a forum to share this knowledge across a broad spectrum. As I write this, chaos reigns across the Middle East as anti-government protestors rally throughout the region for a "Day of Rage." In Egypt, a flashpoint for the waves of unrest, the government has responded, in part, by deploying elite counterterrorism forces and disrupting Internet service throughout the country. These mass uprisings highlight traditional international law issues such as democracy, human rights and national and individual self-determination. However, the overlay of social media as a vehicle for fomenting and organizing the current state * Professor of Law, Creighton University School of Law. I am honored to have the opportunity to contribute to the first volume of the Creighton University School of Law Comparative and International Law Journal. 1 Ms. Knox's case is currently on appeal. In December 2010, a judge granted Ms. Knox's petition for an independent review of the DNA evidence in the case. The Italian appellate process allows a review of the case on the merits much like a retrial in the United States. 4 NO INNOCENTS HERE Vol. 1 of unrest raises compelling contemporary international legal questions. For example, does a government that disconnects its citizens from a medium that can increase worldwide awareness of a country's domestic issues and galvanize support from around the world violate basic human and civil rights? Is there a fundamental right to Internet connectivity especially when it might be used to promote governmental reform? Can social media serve as an accurate litmus test for the extent and depth of the dissatisfaction of a people? Finally, how can (should?) the international community respond to such direct appeals? Without question, international law scholars will be dissecting and analyzing these and many other related issues for years to come. International law journals will undoubtedly provide an outlet for exploring these and many other pertinent questions surrounding Egypt's transformation. These two brief examples illustrate the profound potential and the corresponding benefit of expanding avenues for scholarly analysis and critique of comparative and international law. It is against this backdrop that Creighton University School of Law launches the Creighton International and Comparative Law Journal (CICLJ). This journal hopes to provide a forum for scholars to discuss the most relevant and timely international and comparative issues of the day. This journal is unique in the history of Creighton Law School because it is our second student- run journal, it was entirely inspired and initiated by a talented group of students, and it is an online journal. For Creighton Law School, the CICLJ will enhance our reputation in the global legal community and bring well-deserved recognition to our outstanding concentration program in International and Comparative Law. For our students, the CICLJ will provide yet another opportunity to hone critical writing, editing and analytical skills. For the scholarly community, because the journal will be published in an online format, the CICLJ will serve as a means to distribute scholarship to a vast audience in a timely fashion on a medium that is fast becoming the preferred method of publication. The students who invested the time and energy to bring this journal project to fruition deserve special recognition. They are (in alphabetical order): Jeffery Anderson, Michael Forker, Mark Hoff, Danielle Kerckhoff, Amanda McMichael, Brandon Mehl and Katherine Stevens. On behalf of the faculty at Creighton Law School, I commend you for your hard work in producing this first volume. We are pleased to add the CICLJ to the proud history of Creighton Law School. We look forward to this first edition of the CICLJ and anticipate many more volumes that explore the complexities of international and comparative law in our global community. NO INNOCENTS HERE: USING LITIGATION TO FIGHT AGAINST THE COSTS OF UNIVERSAL SERVICE IN FRANCE ∗ Dorit Rubinstein Reiss INTRODUCTION A major difference between United States and European practice and outlook is found in the relationship of regulation to competition. In the United States, opening a utility market to competition is described as “deregulation.” In Europe, however, opening market to competition is seen as requiring careful regulation after monopoly rights and duties are cancelled, to prevent abuses from powerful corporate actors and protect valuable interests. 1 When I carelessly referred to the liberalization of the telecommunications market as “deregulation,” a Swedish interviewee corrected me: “No. Before, we had an unregulated monopoly. Now, we have regulated competition.” 2 One reason for this difference in perspective can be attributed to a difference in starting points. The United States had traditionally provided utilities by means of licensed monopolies, which while heavily regulated were still privately held companies, while most countries in Europe provided utilities through nationalized industries administered directly by the state in some way. Thus, the U.S. already had a vast array of regulation in play, some of which was eliminated in order to permit competition. Another factor is that several countries in Europe distrust the market to deliver certain kinds of goods and thus see a need for careful regulation. Those involved in regulating the newly competitive sectors correctly recognize that the greatest danger to successful liberalization is the previous state monopoly (the “incumbent”),
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