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Open Access Publications from the University of California

UCLA Pacific Basin Law Journal

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PBLJ focuses on a diverse range of legal and policy issues as they affect the rapidly developing economies of the Pacific Rim. Throughout its history, the journal has featured articles written by leading scholars and practitioners on topics including human rights law, constitutional law, comparative law, criminal law, international trade law, business and corporate law, and intellectual property law.

Volume 29, Issue 2, 2012

Front Matter


Born to Run: Can an American Samoan Become President?

American Samoa holds the unique distinction of being the only American jurisdiction whose residents have been declared by Congress to be U.S. "nationals" at birth, and not U.S. "citizens." This article examines the question of whether an American born on U.S. soil as a "national" can become president within the meaning of the "natural born citizen" clause of Article II, Section I of the United States Constitution, or whether Congress can, by statute, deprive an American Samoan of presidential eligibility. The article explores the uphill battle an American Samoan candidate will face in light of Congress' broad Article IV power over U.S. territories and case law surrounding the Fourteenth Amendment's citizenship clause, and details legal avenues that may prove successful for presidential eligibility. The article argues that even if an American Samoan were technically ineligible under Article II, jurisdictional doctrines of political question and standing to challenge presidential elections, accompanied by possible Congressional reluctance to nullify an election, may prevent litigation from arising in the first place, and allow the ineligible candidate to prevail in obtaining the presidency.

Domestic Violence Lawmaking in Asia: Some Innovative Trends in Feminist Lawmaking

Domestic violence lawmaking intersects global human rights norms and domestic women's movements. Domestic violence is both a global and local phenomenon. The World Bank argues that domestic violence accounts for one in five lost years in women aged 15-44. The costs range from direct expenses such as medical care and social services to productivity and labor market costs to the psychological toll imposed by the intergenerational transmission of violence. The international women's movement and the international human rights conventions have confirmed that violence in the home is neither a private issue nor a cultural practice. Domestic violence was placed on the global agenda as a global epidemic largely due to an explosion of activism by women's rights activists. Bolstered by increasing pressure from international women's human rights advocates, domestic movements demanded the governments make domestic violence lawmaking central to good governance. The explosion of lawmaking around the world on domestic violence makes this clear by establishing state accountability for violence in the home. The positive responsibility of the state inherent in human rights treaties therefore required states to take positive measures to end domestic violence. The concept of state responsibility to include accountability for acts of private individuals is an integral part of the definition of domestic violence as a human rights violation. The concept of state responsibility has expanded to not only direct state action but also a state's systematic failure to act.

Despite the weak enforcement of these laws, the law making processes provide women's movements an opportunity to network globally. The transformation of international human rights and transnational idea sharing into domestic violence lawmaking has been defined as one of the most important social movements of our times. Although much more must be done to realize the promise of these laws, countries that are in the process of lawmaking have much to learn from these experiences. In the last decade, many countries in the Asian region have either passed or are in the process of passing national domestic violence laws. Despite the fact that the laws in force are yet to be transformed fully into practice these laws are important benchmarks and integrate some novel elements in domestic violence lawmaking. Although there is little homogeneity in the Asian region in the field of political, economic, social, or cultural development, these laws have the transformative potential to create new standards in an area where women victims of violence are often silenced because of a culture of impunity. The existence of a law provides space for women to claim their right to bodily integrity and security. Many elements of these laws in different parts of Asia are also instructive to other jurisdictions and can resonate between and across the Asian region.

ASEAN's Gradual Evolution: Challenges and Opportunities for Integrating Participatory Procedural Reforms for the Environment in an Evolving Rights-Based Framework

The Association of South East Asian Nations (ASEAN) is entering an interesting and important new phase in its evolution. Having survived the cold war and Asian financial crisis of 1997, the Association remains a uniquely successful, yet enigmatic organization comprised of ten major Southeast Asian countries. ASEAN nations have successfully obtained rapid levels of economic and human development in the face of the region's political difficulties, yet at the risk of causing significant environmental degradation. Now, ASEAN is implementing two new structures that have major implications for the state of civil society among its member nations-the ASEAN Charter and the ASEAN Intergovernmental Commission on Human Rights (AICHR). This Article examines ASEAN's overarching framework for environmental governance, its normative culture of decision-making, and how the Charter and AICHR could potentially offer significantly divergent paths for the Association in light of its environmental and human rights challenges. It particularly examines how the limitations of ASEAN's elite governing and decision-making norms constrain the possibilities for an expansive civil society under the Charter and AICHR in these areas, and the challenges of integrating environmental and human rights paradigms within this context. Finally, this Article outlines some procedural reforms that ASEAN should adopt that might address its developmental concerns from a participatory standpoint in light of the parameters that constrain the Association's normative realities.