Digital Commons Network^™

Sexual Violence In The Field Of Vision, Sharon Sliwinski

Sharon Sliwinski

Beyond Westphalia: Competitive Legalization In Emerging Transnational Regulatory Systems, Errol E. Meidinger

Errol Meidinger

Published as Chapter 7 in Law and Legalization in Transnational Relations, Christian Brütsch & Dirk Lehmkuhl, eds.

This paper analyzes several emerging transnational regulatory systems that engage, but are not centered on state legal systems. Driven primarily by civil society organizations, the new regulatory systems use conventional technical standard setting and certification techniques to establish market-leveraged, social and environmental regulatory programs. These programs resemble state regulatory programs in many important respects, and are increasingly legalized. Individual sectors generally have multiple regulatory programs that compete with, but also mimic and reinforce each other. While forestry is the most developed example, similar …

Professor Breaks Ground With Journal On Sexual Violence And Exploitation, Joseph Essig, Donna M. Hughes Dr.

Donna M. Hughes

Uri Professor Launches Online Journal About Sexual Exploitation, Violence, Slavery, Donna M. Hughes Dr.

Donna M. Hughes

Inventing Human Dignity, Sharon Sliwinski

Sharon Sliwinski

Review Of "Human Rights In Asia: A Comparative Legal Study Of Twelve Asian Jurisdictions, France And The Usa", Su-Mei Ooi

Su-Mei Ooi

This article reviews Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA by Randall Peerenboom, Carole J. Petersen, and Albert H.Y. Chen.

Reconciling Liberalism And Judaism? Human Rights In Israel, Raphael Cohen-Almagor

raphael cohen-almagor

This essay argues that mixing religion in politics is problematic. It becomes destructive when the religion is unyielding and coercive. Whenever religious powers are on the rise, the foundations of liberal democracy are shaken and its protective mechanisms are regressing. Indeed, in Israel egalitarianism is still in the making. Orthodox Judaism and liberal democracy are in conflict. The rise of one comes at the expense of the other in a situation where religion does not encompass the concept of freedom from religion. This essay further argues that Palestinians and Israelis are entitled to the same rights and liberties. Accommodations and …

Human Rights Appeals In International Politics: Amnesty International's Urgent Action Texts, Ann Marie Clark, Paul J. Bracke Ph.D., Amy Barton M.L.S.

Ann Marie Clark

With the cooperation of Amnesty International, the authors are collaborating to digitize the complete set of Amnesty International's Urgent Action bulletins from 1974-2007, to be available for public use. Our process combines library standards for digitization and electronic collections with additional researcher- and practitioner-driven metadata and coding categories. The result will be a searchable, full-text el-archive, with potential for expansion of the data into a numeric data set compatible with other international data sources.

Is ‘Human Rights’ The Right Approach For Protecting The Interests Of Forest-Dependent People?, Prakash Kashwan

Prakash Kashwan

Nature conservation is often promoted in the name of the greater good of humanity. However, in a large number of cases, nature conservation is associated with increased militarization of resource control (see the select bibliography below). International conservation organizations have responded to such concerns by developing proposals for what they refer to as ‘rights-based approaches to conservation’. Some of the biggest conservation organizations have also come together to form the Conservation Initiative on Human Rights (CIHR), which is a consortium of international conservation NGOs that seek to improve the practice of conservation by promoting integration of human rights in conservation …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram

David Ingram

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …

Information Effects And Human Rights Data: Is The Good News About Increased Human Rights Information Bad News For Human Rights Measures?, Ann Marie Clark, Kathryn Sikkink

Ann Marie Clark

Changes in quality and availability of information related to human rights violations raise questions about how best to use existing data to assess human rights change. Information effects are discernible both in primary sources of information and data coded by two prominent human rights datasets, the Political Terror Scale (PTS) and the Cingranelli-Richards Human Rights Data Set (CIRI). The authors discuss ways that human rights information has changed for the better, evaluate the scales and their primary text sources for countries in Latin America, and compare them with information drawn from regional truth commission data. Extra caution is advised when …

Human Rights Law And Military Aid Delivery: A Case Study Of The Leahy Law, Winifred Tate

Winifred L. Tate

Explicitly prohibiting US military counternarcotics assistance to foreign military units facing credible allegations of abuses, Leahy Law creation and implementation illuminates the epistemological challenges of knowledge production about violence in the policy process. First passed in 1997, the law emerged from strategic alliances between elite NGO advocates, grassroots activists and critically located Congressional aides in response to the perceived inability of Congress to act on human rights information. I explore the resulting transformation of aid delivery: rather than suspend aid when no “clean” units could be found, US officials convinced their Colombian allies to create new units consisting of vetted …

Natural Rights To Welfare, Siegfried Van Duffel

Siegfried Van Duffel

No abstract provided.

A Cosmopolitan Legal Order: Constitutional Pluralism And Rights Adjudication In Europe, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Bureaucracy And The U.S. Response To Mass Atrocity, Gregory Brazeal

Gregory Brazeal

The U.S. response to mass atrocity has followed a predictable pattern of disbelief, rationalization, evasion, and retrospective expressions of regret. The pattern is consistent enough that we should be skeptical of chalking up the United States’ failures solely to a shifting array of isolated historical contingencies, from post-Vietnam fatigue in the case of the Khmer Rouge to the Clinton administration’s recoil against humanitarian interventions after Somalia. It is implausible to suggest that the United States would have acted to mitigate or end mass atrocities but for the specific historical contingencies that happen to accompany each outbreak of violence. This essay …

Superfluousness, Human Rights And The State: Applying Arendt To Questions Of Femicide, Narco Violence And Illegal Immigration In A Globalized World, Emma Norman

Emma R. Norman

This paper shows how Hannah Arendt’s disturbing notion of superfluousness and her critique of human rights are highly applicable to the problems globalization has brought to the U.S.-Mexico border region and beyond, with worrying consequences. In theory, ‘inalienable’ human rights form a safety net to catch those whose governments fail to afford them political rights. But, as Arendt pointed out, such minimum rights only function if one’s state is willing and able to guarantee them. For her, stateless persons are deprived of both a territory and of occupying a ‘niche in the framework of the general law.’ They are thus …

What Does Kosovo Teach Us About Using Human Rights Law To Prosecute Corruption Offences?, Bryane Michael

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

If a patient must pay a bribe to obtain life-saving surgery, does the doctor’s solicitation of a bribe represent a violation of the victim’s human rights? This paper explores the ways in which anti-corruption practitioners can look to various provisions in human rights law in order to prevent or prosecute corruption-related offences. We use Kosovo as a case study because its constitution gives direct effect to the major international human rights conventions. We find -- using Kosovo as a case study -- that some types of corruption lead to separately prosecutable human rights offences. We also find that pre-existing violations …

“Aspectos Jurídicos Del Delito De Trata De Personas En Colombia: Aportes Desde El Derecho Internacional, Derecho Penal Y Las Organizaciones No Gubernamentales”, Andres Barreto, Beatriz Londoño, Antonio Varon, Andrea Mateus

Andres Barreto

La preocupación por el fenómeno de la trata de personas en el escenario internacional ha sido una constante para los Estados desde mediados del siglo XIX. En Colombia la legislación que condena el delito empezó su recorrido desde el Código Penal de 1980, en donde se castigaba con penas de prisión de 2 a 6 años a todo aquel que promoviere la entrada o salida del país de mujer o menor de edad para ejercer la prostitución. Sin embargo, la complejidad de las redes criminales de este crimen transnacional empezó a evidenciar que la trata no solo se cometía sobre …

On The Constitutionalisation Of The Convention: The European Court Of Human Rights As A Constitutional Court, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Public Health And The Rights Of States, András Miklós

Andras Miklos

When exercising their public health powers, states claim various rights against their subjects and aliens. The paper considers whether public health considerations can help justify some of these rights, and explores some constraints on the justificatory force of public health considerations. I outline two arguments about the moral grounds for states’ rights with regard to public health. The principle of fairness emphasizes that those who benefit from public health measures ought to contribute their fair share in upholding them. Alternatively, states’ rights might be justified by a natural duty of justice to uphold and not to obstruct institutions implementing public …

Version Française: On The Constitutionalisation Of The Convention: The European Court Of Human Rights As A Constitutional Court, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

The Aesthetics Of Human Rights, Sharon Sliwinski

Sharon Sliwinski

The Reception Of The Echr In National Legal Orders, Alec Stone Sweet, Helen Keller

Alec Stone Sweet

No abstract provided.

Assessng The Impact Of The Echr On National Legal Systems, Alec Stone Sweet, Helen Keller

Alec Stone Sweet

No abstract provided.

Human And Fundamental Rights And Duties In Portuguese Constitution. Some Reflections, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The Portuguese Constitution (1976) came after a period of 48 years of authoritarianism and a closed society, in which some happy few enjoyed great privileges while the great majority of people were charged with heavy duties So, by a very understandable "law of human nature", the constituent law givers could not reasonably impose constitutionally many obligations, in an autonomous way. As rights and duties are the twin sides of the same coin, the juridical formulation under the sign of rights also implies obligations, related to those same rights. This is kinder and more pleasant to do by a liberating Constitution...

Transitional Justice And Post-Conflict Israel/Palestine: Assessing The Applicability Of The Truth Commission Paradigm, Ariel Meyerstein

Ariel Meyerstein, JD, PhD

This thought experiment examines whether transitional justice has a place in the Israeli-Palestinian post-conflict and, at the same time, what attempting to fit the Israeli-Palestinian conflict into the transitional paradigm can teach us about the limits and possibilities of the transitional justice paradigm. In particular, the Israeli-Palestinian context presents challenging issues regarding the large beneficiary and collaborator classes in both societies. The article concludes by observing that history has proven truth commissions not to be panaceas, but that they offer a limited, inherent “procedural value” to post-conflict societies by instantiating new political dynamics between former political enemies.

The Childhood Of Human Rights: The Kodak On The Congo, Sharon Sliwinski

Sharon Sliwinski

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …