Law Commons^™

Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?, Anthony J. Colangelo, Christopher R. Knight

Faculty Journal Articles and Book Chapters

This essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question — which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are …

Redd+: Climate Justice Or A New Face Of Manifest Destiny? Lessons Drawn From The Indigenous Struggle To Resist Colonization Of Ojibwe Forests In The Nineteenth And Twentieth Centuries, Philomena Kebec

William Mitchell Law Review

No abstract provided.

Trafficking In Law: Cause Lawyer, Bureaucratic State And Rights Of Human Trafficking Victims In Thailand, Frank W. Munger

Articles & Chapters

In this case study of a young, Thai “cause lawyer”, advocacy for human rights is considered in context. The most important elements of that context are the path of development of Thai political and legal institutions, globalisation of law, and the networks of relationships that penetrate the state. The case study shows that human rights advocacy by NGO lawyers can adapt creatively to unpromising conditions under which courts provide little access or oversight. At the same time, the case study raises profound questions about the ultimate independence of cause lawyers when the state must be made a partner in order …

A Standard Of Global Justice, Steven R. Ratner

Book Chapters

This chapter presents the standard of justice that is used in this book to appraise international law. That standard is based on two core principles, or what the book calls pillars—the promotion of international and intrastate peace, on the one hand, and respect for the basic human rights of all individuals, on the other. The justice of international norms is determined by the extent to which they lead to a state of affairs involving peace and human rights, with some room for deontological considerations in limited situations. The chapter defends the choice of these two pillars. It elaborates on the …

The Post-Postcolonial Woman Or Child, Diane Marie Amann

Scholarly Works

This essay is based on remarks given as Distinguished Discussant for the 16th annual Grotius Lecture at the 2014 Annual Meeting of the American Society of International Law/Biennial Conference of the International Law Association. The essay examines the international law status of women, on the one hand, and children, on the other, through the contemporary lens of the post-postcolonial world and the historical lens of Hugo Grotius and the colonialist era. In so doing, the essay responds to the principal Grotius Lecture, "Women and Children: The Cutting Edge of International Law," which was delivered by Radhika Coomarswamy, NYU Global Professor …

Frames And Consensus Formation In International Relations: The Case Of Trafficking In Persons, Volha Charnysh, Paulette Lloyd, Beth A. Simmons

All Faculty Scholarship

This article examines the process of consensus formation by the international community regarding how to confront the problem of trafficking in persons. We analyze the corpus of United Nations General Assembly Third Committee resolutions to show that: (1) consensus around the issue of how to confront trafficking in persons has increased over time; and (2) the formation of this consensus depends upon how the issue is framed. We test our argument by examining the characteristics of resolutions’ sponsors and discursive framing concepts such as crime, human rights, and the strength of enforcement language. We conclude that the consensus-formation process in …

Touching Torture With A Ten-Foot Pole: The Legality Of Canada’S Approach To National Security Information Sharing With Human Rights-Abusing States, Craig Forcese

Osgoode Hall Law Journal

In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “Information Sharing with Foreign Entities.” These directions permit information sharing in exigent circumstances, even where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas …

Mental Health Functioning In The Human Rights Field: Findings From An International Internet-Based Survey, Amy Joscelyne, Sarah Knuckey, Margaret Satterthwaite, Richard A. Bryant, Meng Li, Meng Quian, Adam D. Brown

Faculty Scholarship

Human rights advocates play a critical role in promoting respect for human rights world-wide, and engage in a broad range of strategies, including documentation of rights violations, monitoring, press work and report-writing, advocacy, and litigation. However, little is known about the impact of human rights work on the mental health of human rights advocates. This study examined the mental health profile of human rights advocates and risk factors associated with their psychological functioning. 346 individuals currently or previously working in the field of human rights completed an internet-based survey regarding trauma exposure, depression, posttraumatic stress disorder (PTSD), resilience and occupational …

The Hudson Medal Luncheon: "The Unity Of International Law" – Introductory Remarks By Lori Damrosch, Lori Fisler Damrosch

Faculty Scholarship

The luncheon meeting was convened at 1:00 p.m., Friday, April 10. The luncheon was convened with the opening remarks given by Lori Damrosch, President of the American Society of International Law. Michael Reisman of Yale Law School moderated the panel and introduced the honoree: Pierre-Marie Dupuy of the Graduate Institute of International and Development Studies, Geneva.

Participatory Fact-Finding: Developing New Directions For Human Rights Investigations Through New Technologies, Molly Land

Molly K. Land

This chapter considers the way in which broader participation in human rights fact-finding, enabled by the introduction of new technologies, will change the nature of fact-finding itself. Using the example of a participatory mapping project called Map Kibera, the chapter argues that new technologies will change human rights fact-finding by providing opportunities for ordinary individuals to investigate the human rights issues that affect them. Those who were formerly the ‘subjects’ of human rights investigations now have the potential to be agents in their own right. This ‘participatory fact-finding’ may not be as effective in ‘naming and shaming’ states and companies …

Inciting Genocide With Words, Richard Ashby Wilson

Richard Ashby Wilson

This article calls for a rethinking of the causation element in the prevailing international criminal law on direct and public incitement to commit genocide. After the conviction of Nazi propagandist Julius Streicher at Nuremberg for crimes against humanity, the crime of direct and public incitement to commit genocide was established in the UN Convention on the Prevention and Punishment of Genocide in 1948. The first (and thus far, only) convictions for the crime came fifty years later at the International Criminal Tribunal for Rwanda (ICTR). The ICTR’s incitement jurisprudence is widely recognized as problematic, but no legal commentator has thus …

Justice As Legitimacy In The European Court Of Human Rights, Molly K. Land

Molly K. Land

Using the example of the prisoner voting cases at the European Court of Human Rights, this chapter builds on existing literature regarding the legitimacy of judicial institutions to consider the role of justice with respect to the normative and sociological legitimacy of international human rights courts. The chapter identifies the pursuit of just outcomes as a significant independent influence on the legitimacy of these courts. Doing justice even when it requires expansive lawmaking in order to protect unpopular groups can be an affirmative source of legitimacy for these institutions. Although the legitimacy challenges faced by the European Court of Human …

Human Rights, Environmental Justice, And The North-South Divide, Carmen G. Gonzalez

Carmen G. Gonzalez

Environmental Justice, Human Rights, And The Global South, Carmen G. Gonzalez

Carmen G. Gonzalez

From the Ogoni people devastated by oil drilling in Nigeria to the Inuit and other indigenous populations threatened by climate change, communities disparately burdened by environmental degradation are increasingly framing their demands for environmental justice in the language of environmental human rights. Domestic and international tribunals have concluded that failure to protect the environment violates a variety of human rights (including the rights to life, health, food, water, property, and privacy; the collective rights of indigenous peoples to their ancestral lands and resources; and the right to a healthy environment). Some scholars have questioned the utility of the human rights …

Energy Poverty And The Environment, Carmen G. Gonzalez

Carmen G. Gonzalez

Nearly 3 billion people in Asia, Africa, and Latin America (the Energy Poor) face daily hardships due to lack of modern energy for cooking, heating, sanitation, lighting, transportation, and basic mechanical power. Despite their minimal greenhouse gas emissions, the Energy Poor will be disproportionately burdened by the floods, droughts, rising sea levels, and other disturbances caused by climate change. Although climate change has been framed as an issue of climate debt and climate justice, the plight of the Energy Poor has received short shrift in the climate change negotiations. Will efforts to reduce greenhouse gas emissions consign the Energy Poor …

Social Security, Discrimination And Justification Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article considers the current state of the law concerning justification of potentially discriminatory treatment in the area of social security under the European Convention on Human Rights. Over time the UK courts have become familiar with the Convention and have improved their interpretation of human rights law and, in particular, non-discrimination under Article 14 of the Convention. The final step in this process is the consideration of proportionality in relation to the justification of potentially discriminatory provisions. There have been a number of recent important decisions on this issue from the Supreme Court including the Recovery of Medical Costs …

The European Convention On Human Rights, The Un Convention On The Rights Of The Child And The ‘Benefit Cap’ - R (Sg) V Secretary Of State For Work And Pensions [2015] Uksc 16, Mel Cousins

Mel Cousins

This note looks at the recent decision of the UK Supreme Court in the 'benefit cap' case. The Court narrowly rejected the appeal concerning whether the benefit cap was in breach of Article 14 of the European Convention on Human Rights but some judges would have held that the cap was in breach of the UN Convention on the Rights of the Child.

Corporal Punishment In Ireland And The European Committee On Social Rights, Mel Cousins

Mel Cousins

The Right To Freedom From Discrimination: Child Poverty Action Group V Attorney General, Mel Cousins

Mel Cousins

This case comment examines recent jurisprudence concerning the right to freedom from discrimination under the New Zealand Human Rights Act (HRA) and Bill of Rights Act (NZBORA). In particular, it examines the ruling of the Court of Appeal in Child Poverty Action Group (CPAG) v Attorney General, and also considers relevant aspects of the decisions in Ministry of Heath v Atkinson and Attorney General v IDEA Services. These three decisions have marked an important step forward in the interpretation of the human rights provisions by the New Zealand courts. Following an introduction to the issues raised in the CPAG case …

Disability Pensions, Property Rights And Legitimate Expectations: Béláné Nagy V. Hungary, Mel Cousins

Mel Cousins

Corporate "Human Rights" To Intellectual Property Protection, J. Janewa Osei Tutu

J. Janewa Osei-Tutu