Law Commons^™

Transit States To Destination Nations: Mexican And Moroccan Asylum Policies, Stephanie Evans

Vanderbilt Journal of Transnational Law

Much of the literature surrounding immigration and asylum analyzes the policies adopted by highly developed nations like the United States and countries in the European Union. However, as these nations' policies become increasingly restrictive, more migrants are turning towards neighboring nations that are easier to access but that have less developed immigration and asylum systems. Mexico and Morocco are two such nations. Historically, each has been a transit state--a nation that migrants traveled through in order to reach other states. However, both Mexico and Morocco are becoming destination nations. Social science scholarship has analyzed and compared changes in Mexico's and …

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 …

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 …

Regulating Corruption In Intercountry Adoption, Jordan Bunn

Vanderbilt Journal of Transnational Law

The current regulatory system for intercountry adoption has failed parents, children, and governments. Impoverished parents and children have been exploited by crooked adoption agencies, orphanage directors, and bureaucrats looking to profit from well-meaning prospective parents who will pay significant fees in order to adopt. While the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption lays a good foundation for catching and eliminating this corruption, it has not been fully implemented in many developing countries that lack the necessary resources and infrastructure. Some critics want to give up on or significantly modify the Hague …

Saving Human Rights From Human Rights Law, John Tasioulas

Vanderbilt Journal of Transnational Law

This Article advances the thesis that international human rights law (IHRL) has strayed from its formative purpose. This purpose, as formulated by the Formative Aim Thesis (FAT), is to give expression and effect to an underlying morality of human rights, insofar as it is appropriate to do so, through the medium of individual legal rights ascribed to all human beings. This Article elaborates on two main ways in which IHRL has deviated from the FAT: (1) a tendency to ignore the vital distinction between human rights (which have associated obligations) and universal human interests or values more generally; and (2) …

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 …

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 …

Challenges In The Interpretation And Application Of The Principle Of Distinction During Ground Operations In Urban Areas, Colonel Noam Neuman

Vanderbilt Journal of Transnational Law

This Article focuses on the tension between the often-referred-to articulation of the principle of distinction, as reflected in Additional Protocol I, and four practices that have been continuously employed in ground operations by most if not all of the world's militaries: masking, firing warning shots, breaching structures, and maneuvering with heavy machinery. These practices may very well result in incidental harm to civilians or incidental damage to civilian objects, yet they are either directed at an object that is not necessarily a military objective or they are not directed at any object or person at all. In light of the …

Governing Xenophobia, E. Tendayi Achiume

Vanderbilt Journal of Transnational Law

The problem of xenophobia has gained remarkable notoriety of late, and reports from around the world paint a chilling picture of its virulence, especially where refugees and other involuntary migrants are concerned. How should one understand this global picture of xenophobic contestation and its fallout, and specifically, how should one understand international law's relationship to both?

The first contribution of this Article is to introduce an emerging global framework intended by states and other international actors to improve global cooperation to combat the problem of xenophobia. This global anti-xenophobia framework (the Framework) is rooted in international human rights law and …

Ebola Does Not Fall From The Sky: Structural Violence & International Responsibility, Matiangai Sirleaf

Vanderbilt Journal of Transnational Law

This Article challenges the conventional understanding that international crises are limited to instances of direct physical violence. Instead, it argues that the disproportionate distribution of infectious diseases like Ebola is a form of structural violence that warrants international intervention. In the field of global public health, structural violence is a concept used to describe health inequities and to draw attention to the differential risks for infection in the Global South, and among those already infected, for adverse consequences including death, injury, and illness. This Article clarifies how the concept of structural violence can be operationalized in law. It illustrates the …

Four Comments On The Application Of Proportionality Under The Law Of Armed Conflict, Lieutenant Colonel Roni Katzir

Vanderbilt Journal of Transnational Law

The existence of the principle of proportionality as a norm is undisputed, and military commanders in armed conflicts around the world apply it continuously. As the principle is formulated in general terms--prohibiting attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects, or a combination thereof, that would be excessive in relation to the military advantage anticipated--it is also clear that interpreting and applying the different elements of the principle is no simple task.

This Article shall consider four select issues regarding different elements of the principle of proportionality.

First …

Reframing The Proportionality Principle, Michael A. Newton

Vanderbilt Journal of Transnational Law

Proportionality functions as one of the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lex...silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This essay ends by …

What's Your Advice, Counsel? From Distinction To Detention, Financial Support To Ground Support, And Everything In Between, Journal Staff

Vanderbilt Journal of Transnational Law

An informal summary of the discussions that took place in the Workshop Session of the 2nd IDF International Conference on the Law of Armed Conflict, held April 25-27, 2017. In this session, conference participants were given practical scenarios on a range of issues for consideration. In adherence with the Chatham House Rule, the summary is presented without reference to the identity or affiliation of the participants.

Enemy-Controlled Battlespace": The Contemporary Meaning And Purpose Of Additional Protocol I'S Article 44(3) Exception, Kubo Macak, Michael N. Schmitt

Vanderbilt Journal of Transnational Law

The contemporary propensity for, and risk of, armed conflict taking place among the civilian population has cast a new light on several long-standing challenges to the application of international humanitarian law (IHL). One is the determination of combatant status and, more specifically, the question of when the requirement for the combatants to distinguish themselves from the civilian population may exceptionally be relaxed. In addressing this question, the Article re-examines Additional Protocol I's Article 44(3) and adopts an interpretation thereof that better comports with its object and purpose than those previously prevalent. After exposing the limitations of relying solely on drafting …

The Role Of Nonstate Entities In Developing And Promoting International Humanitarian Law, Dr. Knut Dormann

Vanderbilt Journal of Transnational Law

In recent years, both states and nonstate entities, the number of which has increased, have found ways to stimulate debate about how to interpret, apply, and clarify international humanitarian law (IHL). The development, interpretation, and clarification of IHL have largely occurred not so much through treaty making, but through other, non-legally binding avenues. There is a spectrum of such activity, ranging from state-driven processes aimed at producing non-legally binding outcomes, to hybrid processes involving states, independent experts, and various bodies. The International Committee of the Red Cross (ICRC) serves as a prominent actor in this regard, initiating ICRC-specific initiatives, expert …

Indiscriminate Attacks And The Past, Present, And Future Of The Rules/Standards And Objective/Subjective Debates In International Humanitarian Law, Stephen Townley

Vanderbilt Journal of Transnational Law

Civil society, the United Nations, and others are subjecting the conduct of hostilities to increasing scrutiny. But they often lack access to internal targeting data and therefore frequently render legal judgments based on the effects of attacks or assertions that particular weapons or methods of combat are inherently unlawful. This Article analyzes the historical development of key provisions of international humanitarian law (IHL) within the framework of two perennial legal debates--that between rules and standards and that between objective and subjective tests. It argues that while targeting provisions have generally reflected a balance between those two dyads, the jurisprudence of …

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 …

Politics By Other Means: The Battle Over The Classification Of Asymmetrical Conflicts, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift …

Protecting Cultural Heritage As A Means For International Peace, Security And Stability, Mark V. Vlasic, Helga Turku

Vanderbilt Journal of Transnational Law

Cultural aggression has become a strategy to obtain an advantage during war. In a deliberate and methodical pattern extremists have not only damaged and destroyed historical sites in Iraq and Syria, but they have also looted antiquities to raise money for their terrorist activities. In addition to degrading the victims' identities, such acts decrease the wealth of knowledge of the world as a whole. By examining various treaties and case law on cultural property, this Article highlights the importance of holding these perpetrators accountable. Furthermore, the protection of cultural property in war zones should be an element in the whole …

Female Genital Mutilation And Designer Vaginas In Britain: Crafting An Effective Legal And Policy Framework, Lisa R. Avalos

Vanderbilt Journal of Transnational Law

The prevalence of female genital mutilation (FGM) in Britain and Europe has grown in recent years as a result of international migration, and European institutions have grown increasingly concerned with eradicating the practice. According to the European Parliament, approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure, and more than 30,000 girls in Britain are thought to be at risk of future FGM. Although Britain strengthened its law against FGM in 2003, the number of girls at risk continues to grow, and there have been no convictions for …

Illegally Evading Attribution? Russia's Use Of Unmarked Troops In Crimea And International Humanitarian Law, Ines Gillich

Vanderbilt Journal of Transnational Law

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)?

This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was …

Undocumented Migrants And The Failures Of Universal Individualism, Jaya Ramji-Nogales

Vanderbilt Journal of Transnational Law

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that …

Multiple Nationality And Refugees, Jon Bauer

Vanderbilt Journal of Transnational Law

Persons with more than one nationality ("multiple nationals") who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention's approach. This Article challenges …

Getting Off The Mommy Track: An International Model Law Solution To The Global Maternity Discrimination Crisis, Caraline Rickard

Vanderbilt Journal of Transnational Law

Women's roles in workplaces around the globe have been growing steadily for the past half-century. Yet, in everything from pay to advancement, workplace gender discrimination persists, much of it based on women's unique role as child bearers. Of the countless domestic and international efforts to address maternity discrimination, none has been completely successful. Drawing from the history of maternity leave legislation and the examples of domestic and international regimes, this Note proposes a unique solution to an international problem: an international model law. The Global Maternity Protection Act model law proposed here provides global protection for a global problem and …

Legal Phantoms In Cyberspace: The Problematic Status Of Information As A Weapon And A Target Under International Humanitarian Law, Jack M. Beard

Vanderbilt Journal of Transnational Law

Reports of state-sponsored harmful cyber intrusions abound. The prevailing view among academics holds that if the effects or consequences of such intrusions are sufficiently damaging, international humanitarian law (IHL) should generally govern them--and recourse to armed force may also be justified against states responsible for these actions under the jus ad bellum. This Article argues, however, that there are serious problems and perils in relying on analogies with physical armed force to extend these legal regimes to most events in cyberspace. Armed conflict models applied to the use of information as a weapon and a target are instead likely to …

Separation Anxiety? Rethinking The Role Of Morality In International Human Rights Lawmaking, Vijay M. Padmanabhan

Vanderbilt Journal of Transnational Law

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation. Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article …

Demanding Accountability Where Accountability Is Due: A Functional Necessity Approach To Diplomatic Immunity Under The Vienna Convention, Nina M. Bergmar

Vanderbilt Journal of Transnational Law

This Note addresses the inability of domestic workers to seek redress for exploitation by diplomat employers. In examining the legal quagmire facing these workers, this Note highlights a departure by courts from the functional necessity theory underlying the Vienna Convention. Courts now rely wholly on the U.S. State Department's interpretation of the scope of diplomatic immunity, communicated through "Statements of Interest." The significant deference given to such statements has had dire consequences for exploited victims. Under a functional necessity approach, domestic workers are able to demand redress, as exploitation is a private act--i.e., not in furtherance of the diplomatic mission--undertaken …

Managing The "Republic Of Ngos": Accountability And Legitimation Problems Facing The Un Cluster System, J. Benton Heath

Vanderbilt Journal of Transnational Law

This Article critically assesses the crucial but troubled system for the coordination of international humanitarian assistance--the UN "cluster approach." Regardless of whether the cluster approach actually helps in disaster response, it exercises substantial power over affected populations by assigning competences and leadership roles. The built-in mechanisms for controlling this power are unworkable because they ultimately fail to resolve the tension between humanitarian organizations' autonomy and the need for coordination. This Article identifies the emergence of an alternative model of accountability, based on mutual monitoring and peer review. Drawing on theories of network governance and experimentalism, this Article teases out the …