Law Commons^™

The Emerging Jurisprudence Of The African Human Rights Court And The Protection Of Human Rights In Africa, John M. Mbaku, Professor Of Economics

Vanderbilt Journal of Transnational Law

During most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, …

His Ship Has Sailed--Expelling Columbus From Cultural Heritage Law, Emily Behzadi

Vanderbilt Journal of Transnational Law

Latin America is a region rich with cultural heritage that existed for centuries before its antiquities were looted, trafficked, and sold on the international market. The language used to classify these objects of cultural heritage has been a tool of oppression and erasure. In reference to those objects of historical importance, auction houses, dealers, museums, and even looters themselves consistently use the term “Pre- Columbian.” “Pre-Columbian,” which means “before Columbus,” defines the historical period prior to the establishment of the Spanish culture in the national territories of Mexico, Central America, South America, and the Caribbean islands. In fact, this definition …

How Transnationally Effective Are The Uk Migration Policies In Relation To Missing Migrants? A Transnational Law Perspective, Luke N. Eda

Vanderbilt Journal of Transnational Law

All over the world, several thousands of migrants go missing when they attempt to flee from war, violence, persecution, repressive regimes, systematic human rights violations, etc. Thousands die each year in deadly shipwrecks in a desperate attempt to enter Europe and the United Kingdom. In these instances of deaths and loss, international human rights law imposes duties on states to account for people missing in transnational migration and to respect the rights of members of their families. Despite such provisions, states sometimes deny that they have obligations to deal with cases of migrants reported missing in transnational migration until migrants …

The Pivotal Role Of International Human Rights Law In Defeating Cybercrime: Amid A (Un-Backed) Global Treaty On Cybercrime, Professor Fatemah Albader

Vanderbilt Journal of Transnational Law

On May 26, 2021, the General Assembly of the United Nations adopted a resolution approving the drafting of a new global treaty on cybercrime, which commenced in February 2022. The proposed UN agreement on cybercrime regulation has garnered significant criticism among the international community, namely by state delegates, human rights advocates, and nongovernmental organizations. Fears stem from the belief that such a treaty would be used to legitimize abusive practices and undermine fundamental human rights. National cybercrime laws already unduly restrict human rights. However, at a time where the global community has moved toward a digital world, it becomes even …

Information Operations Under International Law, Tsvetelina Van Benthem, Talita Dias, Duncan B. Hollis

Vanderbilt Journal of Transnational Law

An information operation or activity (IO) can be defined as the deployment of digital resources for cognitive purposes to change or reinforce attitudes or behaviors of the targeted audience in ways that align with the authors' interests. While not a new phenomenon, these operations have become increasingly prominent and pervasive in today's digital age, a trend that the ongoing war in Ukraine and the use of the internet for terrorist purposes tragically demonstrate. Against this backdrop, this Article critically assesses the existing international legal framework applicable to IOs. It makes three overarching claims. First, IOs can cause real and tangible …

Challenging Some Baseline Assumptions About The Evolution Of International Commissions Of Inquiry, Michael A. Becker

Vanderbilt Journal of Transnational Law

Conventional accounts of the historical development of international commissions of inquiry reflect a progress narrative consisting of three propositions: (1) that recourse to inquiry bodies has increased dramatically in the post-Cold War era, (2) that inquiry bodies have evolved from mechanisms for "pure" fact- finding into quasi-judicial bodies that engage with international law, and (3) that the function of inquiry bodies has shifted from diplomatic dispute settlement to norm enforcement and accountability. Part I explains how this narrative simplifies and distorts the rich history of inquiry bodies in international affairs. Part II shows how the idea of a post-Cold War …

Criminal Justice Is Local: Why States Disregard Universal Jurisdiction For Human Rights Abuses, Jeremy A. Rabkin, Craig S. Lerner

Vanderbilt Journal of Transnational Law

A German court recently convicted a minor Syrian official of abuses committed in Syria's civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under "universal jurisdiction," allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged …

Data Transfers After Schrems Ii: The Eu-Us Disagreements Over Data Privacy And National Security, Monika Zalnieriute

Vanderbilt Journal of Transnational Law

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement, which facilitated data transfers between the European Union and the United States. Schrems II illuminates long-lasting international disagreements between the EU and the United States over data protection, national security, and the fundamental differences between the public and private approaches to the protection of human rights in the data-driven economy and modern state. This Article approaches the decision via an interdisciplinary lens of international law and international relations and situates it …

"Authoritarian International Law" In Action? Tribal Politics In The Human Rights Council, Yu-Jie Chen

Vanderbilt Journal of Transnational Law

The international human rights regime, a product of post- war liberalism, is increasingly falling under the shadow of authoritarian countries that try to influence the regime in favor of their illiberal agendas. This Article uses the United Nations Human Rights Council (HRC) as a prism to examine the changing dynamics among leading authoritarian and democratic actors as they contend to shape global human rights norms and institutions. This Article argues that China, the most resourceful authoritarian party-state, is engaging in what can be understood as tribal international politics, forming coalitions with authoritarian governments and developing countries that have different state …

Pornography-Based Sex Trafficking: A Palermo Protocol Fit For The Internet Age, Hope Watson

Vanderbilt Journal of Transnational Law

The United Nations Palermo Protocol provides an international framework for regulating human trafficking with aims of increasing perpetrator prosecution and victim rehabilitation. Signatory nations implement this resolution through domestic legislation. Discrepancies across these statutes result in dangerous jurisdictional gaps and chaotically varied law enforcement approaches. Though legal scholarship rarely addresses the topic, pornography-based sex trafficking provides a clear example of this trend. The unique digital features of the internet compound these challenges. This Note seeks to close procedural gaps and alleviate policing frustrations through a proprietary examination of the Protocol’s “exploitation” definition and suggests an amendment to the Protocol that …

Human Rights Realism, Natalie R. Davidson

Vanderbilt Journal of Transnational Law

In the aftermath of gross human rights abuses, when, if at all, should we forego legal accountability? Human rights scholars debated this question in the 1980s and 1990s, in what was referred to as the "peace versus justice" debate. The "justice" side won the day among human rights advocates, among whom the dominant position is that legal accountability is a necessary response to atrocity and cannot be limited by political considerations (a position this Article terms "human rights absolutism'). However, this question has resurfaced in the twenty-first century, in intense debates with interlocutors outside the field of human rights. Faced …

Why China Should Unsign The International Covenant On Civil And Political Rights, Margaret K. Lewis

Vanderbilt Journal of Transnational Law

In March 2019, the United Nations Human Rights Council finalized its periodic review of China's human rights record just as human rights in China were under intensified attack. As during prior reviews, China was criticized for its human rights practices. And, once again, China was urged to ratify the International Covenant on Civil and Political Rights (ICCPR), which China signed over twenty years ago. It is time to reevaluate this approach.

This Article argues that the international community should change tack and instead call on China to remove its signature from this foundational human rights treaty. While this would be …

Redefining Lgbtq And Abortion Rights In Latin America: A Transnational Toolkit, Alyssa Julian

Vanderbilt Journal of Transnational Law

Throughout Latin America, the Lesbian, Gay, Bisexual, Trans, and Queer (LGBTQ) and abortion rights movements have progressed at divergent strengths and speeds, with significant variation among countries. The region is home to some of the most restrictive and discriminatory laws when it comes to these contentious issues. This Note explores some of the reasons behind the variation in LGBTQ and abortion rights throughout the region.

This Note traces the economic and political history of Latin America to illustrate the climate in which these social movements are operating. Further, this Note offers a brief snapshot of recent global developments in LGBTQ …

China's Belt And Road Initiative Is Reshaping Human Rights Norms, Mikkaela Salamatin

Vanderbilt Journal of Transnational Law

Since its birth in 2015, the Belt and Road Initiative has garnered significant attention for its benefits and its detriments. Much of the current scholarship in this area is focused on particular pieces of the Belt and Road Initiative, with few in legal scholarship considering the impact of the relationship between China's growing soft power and its effect on international law and international institutions. Every state has the right to pursue power and influence, but this Note specifically examines how China's methods of obtaining this power and influence--specifically through the Belt and Road Initiative and related actions within United Nations' …

Do Human Rights Treaties Matter: The Case For The United Nations Convention On The Rights Of People With Disabilities, Arlene S. Kanter

Vanderbilt Journal of Transnational Law

In the United States, and throughout many other parts of the world, we are witnessing attacks on basic human rights. As poverty, inequality, and suffering are evident in so many parts of the world today, there are those who say that the entire human rights regime has failed. This author does not agree. While it is true that human rights treaties have not realized their full potential in every country that has ratified them, human rights treaties do "matter." This Article makes the case for human rights treaties by referring to the success of the Convention on the Rights of …

On Human Rights And Majority Politics, Samuel Moyn

Vanderbilt Journal of Transnational Law

This symposium piece is primarily a reading of Felix Frankfurter's dissent in West Virginia State Board of Education v. Barnette, attempting to draw some lessons from his theory of majoritarian rights for our own moment of crisis for the human rights movement. The situations then and now are only partly comparable, but Frankfurter's call for allowing democratic processes to self-correct even when elite shortcuts beckon--including when it comes to defining and protecting rights--provides food for thought.

Looking To The Future: The Scope, Value And Operationalization Of International Human Rights Law, Lorna Mcgregor

Vanderbilt Journal of Transnational Law

The international human rights system of which international human rights law (IHRL) is a part has been critiqued for being ineffective, too legal, insufficiently self-critical, and elitist, with some claiming that it self-generates some of the challenges it faces. This Article challenges this presentation of IHRL and in doing so, sets out three priorities for its future development. These are first, that it should continue to engage in critical analysis of how IHRL can effectively respond to the complex and multifactorial challenges it faces. Second, rather than refrain from developing due to critiques of over expansion, IHRL should prioritize the …

"Human Rights, Responsibilities, And Democracy," Comments On Tasioulas And Moyn Papers: "Symposium On The Future Of International Human Rights Law", Kathryn Sikkink

Vanderbilt Journal of Transnational Law

It is a pleasure and a challenge to comment on these two very different Articles, "Saving Human Rights from Human Rights Law," by John Tasioulas, and 'On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory," by Samuel Moyn. Both are rich, complex, and thought-provoking. To the degree they share any common dimension, it would be their skepticism toward human rights law, and in particular toward the judicialization of human rights law. But the skepticism comes from quite different directions and from their different disciplines. In the case of Tasioulas's paper, the skepticism derives from his belief that legal human …

In Defense Of Human Rights, Karima Bennoune

Vanderbilt Journal of Transnational Law

This Article argues that international human rights law, and the human rights movement more generally, need more defenders than critics in the current international political environment. Groups ranging from academics to governments have taken stances critical of human rights, and this Article seeks to defend the rights framework from some of these while also arguing for the importance of human rights in today's world. Noting that the field of human rights is not beyond criticism, this Article embraces some of those criticisms. However, it suggests that human rights law specialists need to spend at least as much time defending human …

The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben

Vanderbilt Journal of Transnational Law

Consumers are increasingly demanding that the goods and services they consume be produced in a way that meets their social expectations. By extension, they are exhibiting greater willingness to pay more at the cash register for products made in good working conditions, and they are willing to punish companies that do not satisfy these expectations. Driving these "citizen-consumers" is what this Article terms the "consumer imaginary," which is defined as the narratives that consumers tell themselves about the people that make their things--people whom consumers will likely never meet, and whose lived experiences are distant from their own. Policymakers have …

Transitional Justice In Housing Injustice: The Case Of Housing Rights Violations Within Settler Democracies, Manal Totry-Jubran

Vanderbilt Journal of Transnational Law

The right to housing is recognized by international human rights treaties as an integral part of the right to an adequate standard of living. Many states have ratified these treaties and incorporated protection of some aspects of housing rights into their constitutions and domestic legislation. Other states have not enacted any legislation in recognition of housing rights, but they provide judicial remedies for violations of rights. Despite that, domestic and international reports indicate that housing rights are constantly being violated in countries across the world at different levels.

This Article focuses on housing rights violations within "settler democracies." Such countries …

Whither And Whether With The Formative Aim Thesis, Gopal Sreenivasan

Vanderbilt Journal of Transnational Law

According to John Tasioulas, the formative aim of international human rights law is to give effect to moral human rights (insofar as it is appropriate for international law to do so, through the technique of assigning a uniform set of individual legal rights to all humans). In cases of pure human rights inflation, an international legal human right fails to give effect to any moral human right. Tasioulas regards international legal human rights that fit this criterion as morally unjustified. This Article scrutinises various bases on which the inference underlying his conclusion might be validated and argues that none of …

When Genealogy Matters: Intercountry Adoption, International Human Rights, And Global Neoliberalism, Barbara Stark

Vanderbilt Journal of Transnational Law

Genealogy isn't what it used to be. Once genealogy was the route to "legitimacy," whether literally--a "fillius nullius," a child of no one, was illegitimate, a bastard--or more fancifully--a tastefully mounted family crest could be obtained for virtually any surname, for a price. Or genealogy referred to the painstaking search for roots, the recovery of a personal history, the excavation of a trajectory that would give meaning to the present. But we are all legitimate now. And DNA testing provides more information than anyone can process, including, for some, the refutation of cherished ancestral myths, a good chance of developing …

Humanitarian Regulation Of Hostiles: The Decisive Element Of Context, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant …

Proportionality Under International Humanitarian Law: The "Reasonable Military Commander" Standard And Reverberating Effects, Ian Henderson, Kate Reece

Vanderbilt Journal of Transnational Law

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of international humanitarian law (IHL), key terms are not defined in relevant treaties nor do they benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality.

The Article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of …

The Evolution And Identification Of The Customary International Law Of Armed Conflict, Sir Michael Wood

Vanderbilt Journal of Transnational Law

Despite the many widely ratified treaties on the law of armed conflict (LOAC, also referred to as international humanitarian law (IHL)), customary international law remains of great importance in this branch of international law. So far as concerns international armed conflicts, customary international humanitarian law (CIHL) is of special importance in connection with states not party to Additional Protocol I of 1977. So far as concerns non-international armed conflicts, CIHL is of crucial importance for all states, since, for the most part, treaty provisions are rudimentary. The International Court of Justice has also had occasion to state that "a great …

Understanding Serious Bodily Or Mental Harm As An Act Of Genocide, Nema Milaninia

Vanderbilt Journal of Transnational Law

What is genocide? The typical answer immediately brings to mind incidents of large-scale killings like those in World War II, Rwanda, and Srebrenica. The same images, however, create an incomplete and potentially misleading picture of the crime. Genocide is a far broader concept than mass executions. The crime was deliberately designed to capture the variant and innumerable ways individuals or organizations might try to destroy racial, ethnic, religious, or national groups. And while certain acts, like rape and other acts of sexual violence, never formed part of the crime's initial understanding, these acts are now accepted as tools of destruction …

Gene Editing And The Rise Of Designer Babies, Tara R. Melillo

Vanderbilt Journal of Transnational Law

Nearly as long as human beings have existed on this earth, many people have sought out the ideal of perfecting their population: infanticide in Sparta during the Hellenistic era; compulsory sterilization in the 1920s in the United States; and the unimaginable atrocities of the Holocaust in the 1940s in Europe. The goal of alleged perfection leaves many hesitant to repeat the mistakes of our past. Today, a new frontier of science has emerged, gene editing using CRISPR-Cas9, reigniting ethical debate as to how far humans should go in manipulating the population. While many proponents herald this technology as a potential …

Hunt Or Be Hunted, Jeremiah Cioffi

Vanderbilt Journal of Transnational Law

Bulgaria is the geographic and political center of the European migrant crisis, which has the Bulgarian citizenry uneasy about its security. Bulgaria's societal disdain for Middle Eastern migrants stems from hundreds of years of subjugation and non-Muslim Bulgarians' second-class citizenship under the Ottoman Empire. Roving bands of civilian migrant hunters have begun taking the law into their own hands by capturing migrants and turning them over to the Bulgarian authorities for deportation. This Note discusses the illegality of such migrant hunting under Bulgarian domestic law. It then discusses how the impunity enjoyed by migrant hunters is an abdication of Bulgarian …

The Human Rights Obligations Of State-Owned Enterprises: Emerging Conceptual Structures And Principles In National And International Law And Policy, Larry C. Backer

Vanderbilt Journal of Transnational Law

The distinction between the obligations of public and private entities, and their relation to law, is well known in classical political and legal theory. States have a duty that is undertaken through law; enterprises have a responsibility that is embedded in their governance. These fundamental divisions form part of the current international efforts to institutionalize human rights-related norms on and through states and enterprises, and most notably through the U.N. Guiding Principles for Business and Human Rights. The problems of conforming to evolving norms becomes more difficult where states project their authority through commercial enterprises.