California Western School of Law

Executive Board, International Law Journal

PROLOGUE: A NOTE FROM THE ExECUTIVE BOARD
The California Western International Law Journal is proud to present
its Spring 2000 edition-Latin America in the Twenty-First Century-which
focuses solely on issues confronting Latin America as the region enters the
twenty-first century.
The International Law Journal decided to dedicate this edition to issues
dealing exclusively with Latin America for various reasons. First, although
close in proximity to the United States, Latin America seldom receives the
attention that more distant regions, like Europe and Asia, receive. The In-
ternational Law Journal believes that this edition will lead to a greater un-
derstanding of the major issues facing Latin America and thus provide crea-
tive solutions to the regions problems.
Second, the large and growing Latin American population in the United
States continues to influence this country at all levels and areas of society.
Currently, in the United States, Latinos make up about one in every nine
residents. Furthermore, population projections from the United States Cen-
sus Bureau indicate that by the year 2005, Latinos will comprise thirteen
percent of the United States population, making them the largest minority
group.
Finally, the International Law Journal saw a need to present issues and
possible solutions facing Latin America from an "Americas" perspective.
Therefore, this edition contains articles not only from scholars in the United
States, but also from the viewpoint of Latin American practitioners and
scholars who have a different perspective on the major issues challenging
the region.
As you read the articles that follow, and reflect on the future of Latin
America, it is fitting to meditate on the vivid imagery of Pablo Neruda in his
poem "America, I Do Not Call Your Name Without Hope" (Amrica, No In-
voco Tu Nombre en Vano). Neruda's expressive contemplation of hope for
Latin America is a key to understanding and solving many of the issues fac-
ing the region today- because hope will inspire action, which in turn will
spur solutions for the many issues facing Latin America in the twenty-first
century.'
1. Pablo Neruda, America, 1 Do Not Call Your Name Without Hope, in TWENTIETH-CENTURY
LATIN AMERICAN POETRY 214-15 (Stephen Tapscott ed., Robert Bly trans.. 1996).
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 30
America, I do not call your name
without hope.
When I hold the sword against the
heart,
when I live with the faulty roof in the
soul,
when one of your new days
pierces me coming through the win-
dows,
I am and I stand in the light that pro-
duces me,
I live in the darkness which makes me
what I am,
I sleep and awake in your fundamen-
tal sunrise:
as mild as the grapes, and as terrible,
carrier of sugar and the whip,
soaked in the sperm of your species,
Nursed on the blood of your inheritance.
America, no invoco tu nombre en
vano.
Cuando sujeto al coraz6n la espada,
Cuando aguanto en el alma la
gotera,
Cundo por las ventanas
Un nuevo dia tuyo me penetra,
Soy y estoy en la luz que me produce,
Vivo en la sombra que me determina,
Duermo y despierto en tu esencial
aurora:
Dulce como las uvas, y el terrible,
Conductor del azaicar y el castigo,
Empapado en esperma de tu especie,
Amamantado en sangre de tu heren-
cia.
The International Law Journal would like to thank the following indi-
viduals for their generous assistance and support in this project: Professor
Jamie Cooper, Professor William J. Aceves, Professor John Noyes, Dean
Steven Smith, and Professor Janeen Kerper.
International Law Journal Executive Board
Abel Yanez, Executive Editor, International Law Journal 1999-2000, J.D. 2000, California
Western School of Law; B.A. Secondary Education, 1997, University of Nevada, Las Vegas.
Gabriela Brannan, Executive Lead Articles Editor, International Law Journal 1999-2000, J.D.
2000, California Western School of Law; B.A. Psychology, 1996, San Diego State University.
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English

Prologue: A Note from the Executive Board

Antokolskaia, Maria V.

The New Aspects of Russian Family Law

Stanić, Gordana Kovaček

The Significance of Biological Parentage in Yugoslav Family Law

Wedel, Steven J.

California Western Law Review 
Volume 37 Number 1 Article 2 
2000 
Symposium: Creative Problem Solving Conference -- Introduction 
Steven J. Wedel 
Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr 
Recommended Citation 
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Western Law Review: Vol. 37 : No. 1 , Article 2. 
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information, please contact alm@cwsl.edu. 
INTRODUCTION
As Executive Editor of the California Western Law Review, it is my
pleasure to provide a few words of introduction and explanation regarding
the Fall, 2000, volume.
First, the Review is proud to be able to continue the important discussion
involving subsidies and the Metropolitan Water District first begun in the
Spring, 2000, volume of the Review. At that time, we published an article
written by Steven Erie and Pascale Joassart-Marcelli that generated so much
controversy the San Diego County Water Authority (a member agency of the
Metropolitan Water District) felt compelled to respond. We now publish
that response, written by Mark Berkman and Jesse David. Additionally, we
have included Mr. Erie's comments regarding the Berkman and David re-
sponse.'
Second, it is with great pleasure that the Review presents a Symposium
section on the highly successful Califomia Western Law School-sponsored
conference entitled "The Lawyer as Creative Problem Solver," held in Feb-
ruary of 2000. The conference was held in San Diego over the course of
three days, with each day focusing on a particular aspect or goal of the mis-
sion of creating a new lawyer for the 21" Century. This mission calls for the
creation of a lawyer who is able to use his or her legal education as a means
of effectively resolving disputes, while at the same time remaining outside of
the standard legal process. This volume includes excerpts from each day of
the conference, sometimes highlighting a keynote speaker, and at other times
presenting a free-wheeling panel discussion by experts in the field of crea-
tive problem solving. Additionally, we have published three lead articles,
each dealing with a conference-related creative problem solving topic.
In the end, we hope that with this issue of the Review we have contrib-
uted to the meaningful discussion and debate highlighting not only the need
for a new type of lawyer but also, more specifically, to the question of how
exactly law schools and the legal profession can help define the new roles
that lawyers must play in the 21" Century. As to these new roles, I think
United States Attorney General Janet Reno said it best when in an address
here at California Western, she stated:
I think there are four roles. There's the role of the sword, the role of the
1. While the staff of the Law Review has done its best to ensure that these articles con-
form to scholarly standards (specifically, ensuring conformation to the Bluebook, a uniform
system of citation used by legal journals), some sources used or cited by the authors were un-
available for review. Accordingly, the authors have warranted the validity of their respective
research and the sources cited.
1
Wedel: Symposium: Creative Problem Solving Conference -- Introduction
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shield, and the role of the problem-solver. But, then there is the fourth
role, that of the peacemaker. And if you add the problem-solver and
peacemaking roles together, you come up with a tremendous force for
good. You can never be the problem-solver and the peacemaker unless
you are willing to try the case or are willing to hold that sword high to
rotect the rights we hold dear. But, the lawyer who knows how to stand
firm while reaching out a hand to solve a problem and to bring peace is
one of the great forces for good in this nation
Steven J. Wedel
2. United States Attorney General Janet Reno, Address at California Western School of
Law (May 1, 1998) (transcript available at the office of The California Western Law Review).
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Mark A. Broida
"Professor, Friend, and Colleague"'
September 14, 1956 - January 30, 2001
The California Western Law Review is pleased to dedicate this issue to
Professor Mark A. Broida. As a legal writing professor, Mark would have
been proud of the four well-written student articles that are contained within
this volume.
Memorial Service Brochure, March 20, 2001, California Western School of Law.
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Wedel: Symposium: Creative Problem Solving Conference -- Introduction
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Symposium: Creative Problem Solving Conference -- Introduction

Nagle, Luz Estella

The Cinderella of Government: Judicial Reform in Latin America

Aceves, William J.

EPILOGUE: CANTO PARA LATINOAMERICA
WILLIAM J. ACEVES"
Literature often presents the most intimate and accurate portrayals of
life and history. It captures the spirit and the soul of human existence-
features often lost in legal scholarship. As we contemplate the past of Latin
America, experience its present, and contemplate its future, we can look to
literature for a narrative of our journey.
The work of two Latin American Nobel laureates provides a compelling
portrait of this region during the twentieth century.1 While they often wrote
of love, and lost love, their work also explores the political world. In this
discourse, each writer is both subject and object-they chronicled the world
around them and were, in turn, captured by that world. Their observations,
however, came at a price. For the Chilean poet Pablo Neruda, it meant exile
abroad. For the Mexican writer Octavio Paz, it meant resignation from the
Mexican diplomatic service.
While each author wrote from a distinct vantage point, unique in time
and space, their work shares similar features. From the destruction of in-
digenous traditions to the repression of political discourse, each author found
that the goals of modernization and social order exacted a heavy toll on the
land and people of Latin America.
This brief literary respite provides a distinct lens through which to con-
template the past, present, and future of Latin America. To legal scholars,
such ventures can provide important historical and emotional context. In-
deed, its themes of power and inequality, of life and death, should be central
to those who purport to study the development and role of law and legal in-
stitutions in Latin America.
Throughout its history, Latin America has struggled with totalitarian re-
gimes, both foreign and domestic. This is, perhaps, the greatest legacy of the
Old World. In The Dictators, Pablo Neruda conveys, in stark terms, the vio-
Associate Professor of Law, California Western School of Law.
1. Five writers from Latin America have been awarded the Nobel Prize in Literature:
Gabriela Mistral, Miguel Angel Asturias, Pablo Neruda, Octavio Paz, and Gabriel Garcia
Marquez. Of course, this list does not exhaust the remarkable group of writers to emerge from
Latin America in the twentieth century. See generally TWENTIETH-CENTURY LATIN AMERICAN
POETRY (Stephen Tapscott ed., 1996); THE BoRzoI ANTHOLOGY OF LATIN AMERICAN
LITERATURE (Emir Rodriguez Monegal ed., 1977).
1
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442 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 30
lence and death perpetrated by these regimes! It is carnal imagery, as death
becomes alive for the reader.'
An odor stayed in the cane fields:
carrion, blood, and a nausea of har-
rowing petals.
Between coconut palms lay the
graves, a stilled strangulation, a fes-
tering surfeit of bones.
A finical satrap conversed with
wineglasses, collars, and piping.
In the palace, all flashed like a
clock-dial, precipitate laughter in
gloves, a moment spanning the pas-
sageways, meeting the newly killed
voices and the buried blue mouths.
Out of sight, lament was perpetual
and fell, like a plant and its pollen,
forcing a lightless increase in the
blinded, big leaves.
And bludgeon by bludgeon, on the
terrible waters, scale over scale in the
bog, the snout filled with silence and
slime and vendetta was born.
Ha quedado un olor entre los
cahaverales: una mezcla de sangre
y cuerpo, un penetrante pdtalo nau-
seabundo.
Entre los cocoteros las tumbas
estdn llenas de huesos demolidos,
de estertores callados.
El delicado sdtrapa conversa
con copas, cuellos y cordones de
oro.
El pequeho palacio brilla como
un reloj y las rdpidas risas enguan-
tadas atraviesan a veces los pasillos
y se retinen a las voces muertas y a
las bocas azules frescamente enter-
radas.
El llanto estd escondido como
una planta cuya semilla cae sin ce-
sar sobre el suelo y hace crecer sin
luz sus grandes hojas ciegas.
El odio se ha formado escama a
escama, golpe a golpe, en el agua
terrible del pantano, con un hocico
leno de ldgamo y silencio.
While writing from the Chilean experience, Neruda's imagery captures
scenes from throughout the continent. Argentina, Colombia, El Salvador,
Guatemala, Panama, Paraguay, or Peru-the killing fields scar the land like
stigmata. The only requiem for the disappeared is the silence, the deafening
silence, which marked their departure. In various forms, however, the finical
satrap remains-and the odor lingers, and the vendetta festers.
Similar themes are conveyed in the work of Octavio Paz. Indeed, politi-
cal repression was the dominant reality of Latin America in the twentieth
century. In Interruptions From the West (3) (Mexico City: The 1968 Olym-
piad), Paz expresses his anger following the brutal massacre of the student
movement at Tlatelolco in October 1968, shortly before the Olympic Games
were held in Mexico City.
4
2. See PABLO NERUDA: FIVE DECADES (A SELECTION) 89 (Ben Belitt ed. & trans., 1974).
3. See id. The translation process is itself a violent act. It is artificial and no translation
can ever do justice to the spirit and meaning of the original word. See id.
4. See THE COLLECTED POEMS OF OCTAVIO PAZ 225-26 (Eliot Weinberger ed. & trans.,
1991) [hereinafter PAZ]. Paz resigned his appointment as Mexican Ambassador to India fol-
lowing the massacre.
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CANTO PARA LATINOAMERICA
Lucidity
(perhaps it's worth
writing across the purity
of this page)
is not lucid:
it is fury
(yellow and black
mass of bile in Spanish)
spreading over the page.
Why?
Guilt is anger
turned against itself:
if
an entire nation is ashamed
it is a lion poised
to leap.
(The municipal
employees wash the blood
from the Plaza of the Sacrificed.)
Look now,
stained
before anything worth it
was said:
lucidity.
La limpidez
(quizd valga la pena
escribirlo sobre la limpieza
de esta hoja)
no es limpida:
es una rabia
(amarilla y negra
acumulaci6n de bilis en espahol)
extendida sobre la pdgina.
iPorqug?
La vergiienza es ira
vuelta contra uno mismo:
si
una naci6n entera se avergiienza
es le6n que se agazapa
para saltar.
(Los empleados
municipales lavan la sangre
en la Plaza de los Sacrificios.)
Mira ahora,
manchada
antes de haber dicho algo
que valga la pena,
la limpidez.
Blood stains. To Neruda and Paz, it is both noun and verb. It scars the
hands of the killer and the soul of his victim. And it leaves its indelible mark
on the earth. As Augusto Pinochet Ugarte recently discovered, time does not
heal all wounds.
In Latin America, a symbiotic relationship often existed between totali-
tarian regimes and multinational corporations. Indeed, neocolonial policies,
supported by nativist regimes, existed long after the formal vestiges of colo-
nialism receded from memory. Multinational corporations have become the
new colonialists, an extension of their imperial predecessors. In The United
Fruit Co., Pablo Neruda describes the power, corruption, and indifference of
one such entity.5
When the trumpets had sounded and
all was in readiness on the face of the
earth, Jehovah divided his universe:
Anaconda, Ford Motors, Coca-Cola
Inc., and similar entities:
the most succulent item of all, The
United Fruit Company Incorporated re-
served for itself- the heartland and
Cuando son6 la trompeta, estuvo
todo preparado en la tierra,
y Jehovd reparti6 el mundo
a Coca-Cola Inc., Anaconda,
Ford Motors, y otras entidades:
la Compaiia Frutera Inc.
se reserv6 lo mds jugoso,
la costa central de mi tierra,
5. See NERUDA, supra note 2, at 79. The infamous history of United Fruit Company is
long and well-known. See generally RICHARD H. IMMERMAN, THE CIA IN GUATEMALA: THE
FOREIGN POLICY OF INTERVENTION 68-82 (1982).
2000]
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coasts of my country, the delectable
waist of America. They rechristened
their properties:
the "Banana Republics "-and over the
languishing dead, the uneasy repose of
the heroes who harried that greatness,
their flags and their freedoms, they es-
tablished an opgra bouffe:
they ravished all enterprise, awarded
the laurels like Caesars, unleashed all
the covetous, and contrived the tyranni-
cal Reign of the Flies-Trujillo the fly,
and Tacho the fly, the flies called
Carias, Martinez, Ubico-all of them
flies, flies dank with the blood of their
marmalade vassalage, flies buzzing
drunkenly on the populous middens: the
fly-circus fly and the scholarly kind,
case-hardened in tyranny.
Then in the bloody domain of the flies
The United Fruit Company Incorporated
sailed off with a booty of coffee and
fruits brimming its cargo boats, gliding
like trays with the spoils of our drown-
ing dominions.
And all the while, somewhere in the
sugary hells of our seaports, smothered
by gases, an Indian fell in the morning:
a body spun off, an anonymous chattel,
some numeral tumbling, a branch with
its death running out of it in the vat of
the carrion, fruit laden and foul.
la dulce cintura de America.
Bautiz6 de nuevo sus tierras
como "Repablicas Bananas,"
y sobre los muertos dormidos,
sobre los haroes inquietos
quo conquistaron la grandeza,
la libertad y las banderas,
estableci6 la 6pera bufa:
enajen6 los albedrios,
regal6 coronas de C~sar,
desenvain6 la envidia, atrajo
la dictadura de las moscas,
moscas Trujillos, moscas Tachos,
moscas Carias, moscas Martinez,
moscas Ubico, moscas htimedas
de sangre humilde y mermelada,
moscas borrachas que zumban
sobre las tumbas populares,
moscas de circo, sabias moscas
entendidas en tirania.
Entre las moscas sanguinarias
la Frutera desembarca,
arrasando el cafg y lasfrutas,
en sus barcos que deslizaron
como bandejas el tesoro
de nuestras tierras sumergidas.
Mientras tanto, por los abismos
azucarados de los puertos,
caian indios sepultados
en el vapor de la mahiana:
un cuerpo rueda, una cosa
sin nombre, un namero caido,
un racimo defruta muerta
derramada en el pudridero.
In this new era of globalization and growing interdependence, of maqui-
ladoras, most-favored nations, and multinational corporations, these images
are neither dated nor obsolete. Throughout the continent, indigenous people
continue to struggle. If a peasant falls in the forests of Brazil, does anyone
hear the crash? The land itself is also victim to desecration. Rape and geno-
cide are acts of violence when committed against any species.
These poems convey a brief history of a continent-its problems, fears,
and aspirations. In some countries, these poems will provide the only re-
minder of a violent past, of a century where the oppression of peoples and
the repression of states was gradually overcome, but at a heavy cost. In other
countries, however, these problems maintain a contemporary relevance. For
these countries, the work of Octavio Paz in Interruptions From the West (2)
(Mexican Song) remains as a poignant interrogatory.6
6. See PAZ, supra note 4, at 223.
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CANTO PARA LATINOAMERICA
My grandfather, taking his coffee, would
talk to me about Judrez and Porfirio, the
Zouaves and the Silver Band. And the
tablecloth smelled of gunpowder.
My father, taking his drink, would talk
to me about Zapata and Villa, Soto y
Gama and the brothers Flores Mag6n.
And the tablecloth smelled of gunpow-
der.
I kept quiet.
Who was therefor me to talk about?
Mi abuelo, al tomar el caft,
me hablaba de Judrez y de Porfirio,
los zuavos y los plateados.
Y el mantel olia a p6lvora.
Mi padre, al tomar la copa,
me hablaba de Zapata y de Villa,
Soto y Gama y los Flores Mag6n.
Y el mantel olta a p6lvora.
Yo me quedo callado:
ide quign podria hablar?
2000]
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Epilogue: Canto Para Latinoamerica

Jakovac-Lozić, Dijana

Croatia\u27s New Family Act and its Implications on Marriage and Other Forms of Family Life

Farrugia, Ruth

Parental Responsibility and State Intervention

Duxbury, Alison

Saving Lives in the International Court of Justice: The Use of Provisional Measures to Protect Human Rights

International Law Journal, California Western

CALIFORNIA WESTERN
INTERNATIONAL LAW JOURNAL
VOLUME 31 FALL 2000 NUMBER 1
TABLE OF CONTENTS
Selected Articles and Essays from the Conference on the Present State
and Problems of Family Law in the Transformation Period of Post-
Communist States (27-29 June 1998, Prague, Czech Republic)
Relationships Between Family and Government
Lynn D . W ardle ............................................................................................... 1
The New Aspects of Russian Family Law
M aria V. Antokolskaia .............................................................................. 23
Rights of Custody and Access Under the Hague Child Abduction Conven-
tion-"A Questionable Result?"
M arilyn F reem an ....................................................................................... 39
Activities of the Council of Europe in the Field of Family Law
M arta R equena ......................................................................................... 53
Children's Rights in the Hungarian Judicial Practice
A ndrds K Oros ............................................................................................ 67
Changes in the Modem Era Lead to the Evolution of Hungarian Family Law
and Children's Rights
E m ilia W eiss .............................................................................................. 75
Croatia's New Family Act and Its Implications on Marriage and Other
Forms of Family Life
D ijana Jakovac-Lozi .............................................................................. 83
The Significance of Biological Parentage in Yugoslav Family Law
G ordana K ova~ek Stani6 ............................................................................. 101
Yugoslavia: The Medico-Legal Issue of Transsexuality
M arija D ragki6 ............................................................................................ 115
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Parental Responsibility and State Intervention
R uth F arrugia ............................................................................................. 127
ARTICLE
Saving Lives in the International Court of Justice: The Use of Provisional
Measures to Protect Human Rights
A lison D uxbury ............................................................................................ 14 1
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