Law Commons^™

Gendered Normativities: The Role And Rule Of Law, Susanne Baer

Book Chapters

In the 21st century, human rights are as present as they are endangered. Specifically, sex/gender equality rights are contested, or actively abridged, which is to be understood as an attack on women and on people who do not fit a ‘normal’ pattern of gender relations. Yet in addition, these are attacks on democratic constitutionalism itself. The article argues that to properly understand the recent contestations of human rights, one must distinguish between critique and attack, and revisit the very form and content of human rights, to deal with law’s ambivalence, such as ‘legal colonialism’, and also take into account critical …

Data Privacy, Human Rights, And Algorithmic Opacity, Sylvia Lu

Fellow, Adjunct, Lecturer, and Research Scholar Works

Decades ago, it was difficult to imagine a reality in which artificial intelligence (AI) could penetrate every corner of our lives to monitor our innermost selves for commercial interests. Within just a few decades, the private sector has seen a wild proliferation of AI systems, many of which are more powerful and penetrating than anticipated. In many cases, AI systems have become “the power behind the throne,” tracking user activities and making fateful decisions through predictive analysis of personal information. Despite the growing power of AI, proprietary algorithmic systems can be technically complex, legally claimed as trade secrets, and managerially …

Women, Peace, And Security: A Human Rights Agenda?, Christine M. Chinkin

Book Chapters

The Women, Peace and Security (WPS) agenda emanates from the ground-breaking Security Council Resolution 1325 (2000) which centres upon bringing women’s experiences of armed conflict into decision and policymaking in the exercise of the Council’s primary responsibility for the maintenance of international peace and security. The chapter asks whether, despite its location within the Security Council, WPS can be understood as an international human rights agenda as envisaged by women activists who lobbied for the adoption of Resolution 1325. It traces the antecedents of WPS through women’s peace and human rights activism throughout the twentieth century. It examines the texts …

Taxation And Business: The Human Rights Dimension Of Corporate Tax Practices, Reuven S. Avi-Yonah

Book Chapters

The response of both developed and developing countries to global developments has been first, to shift the tax burden from (mobile) capital to (less mobile) labour, and second, when further increased taxation of labour becomes politically and economically difficult, to cut government services. Thus, globalization and tax competition lead to a fiscal crisis for countries that wish to continue to provide those government services to their citizens, at the same time that demographic factors and increased income inequality, job insecurity and income volatility that result from globalization render such services more necessary. This chapter argues that if government service programs …

International Law And Theories Of Global Justice: Remarks, Steven R. Ratner, James Stewart, Jiewuh Song, Carmen Pavel

Articles

International law (IL) and political philosophy represent two rich disciplines for exploring issues of global justice. At their core, each seeks to build a better world based on some universally agreed norms, rules, and practices, backed by effective institutions. International lawyers, even the most positivist of them, have some underlying assumptions about a just world order that predisposes their interpretive methods; legal scholars have incorporated concepts of justice in their work even as their overall pragmatic orientation has limited the nature of their inquiries. Many philospophers, for their part, have engaged with IL to some extent—at a minimum recognizing that …

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 …

Serious Harm, James C. Hathaway

Book Chapters

Although the requirement to show a well-founded fear of “being persecuted” is at the heart of the refugee definition, the Refugee Convention does not define or elucidate the meaning to be given to this concept. Indeed, it is generally acknowledged that the drafters of the Convention intentionally declined to define “being persecuted” because they recognized the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection. The need for a flexible approach to “being persecuted” is especially important today given the duty under the 1967 Protocol to apply the …

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

Articles

In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Sources, Christine Chinkin

Book Chapters

This chapter outlines the sources of international human rights law that are listed in Article 38(1) Statute of the International Court of Justice: treaties, custom, general principles of law, and, as subsidiary sources, judicial decisions and the writings of jurists. The chapter also considers how so-called 'soft law' instruments such as resolutions of the UN General Assembly and the work of human rights expert bodies may also be regarded as sources of human rights law.

The Resilience Of Law, Joseph Vining

Book Chapters

One of the striking developments in academic law in the past half century is the reconception of law as one of the social sciences. The idea at work in this movement, as Joseph Vining says in this essay, is not that the law should use the findings of other disciplines for its own purposes and in its own way, but that in some deep way law itself - legal thinking, legal life - can and ought to proceed on the premises of social science, indeed of science itself. This is in one sense obviously impossible: a scientific rule is a …

Secondary Human Rights Law, Monica Hakimi

Articles

In recent years, the United States has appeared before four different treaty bodies to defend its human rights record. The process is part of the human rights enforcement structure: each of the major universal treaties has an expert body that reviews and comments on compliance reports that states must periodically submit. What's striking about the treaty bodies' dialogues with the United States is not that they criticized it or disagreed with it on the content of certain substantive rules. (That was all expected.) It's the extent to which the two sides talked past each other. Each presumed a different set …

Review Of Human Rights: Between Idealism And Realism, Steven R. Ratner

Reviews

For centuries, moral philosophers have regarded ethics and justice in the international plane as part of their domain. The move from the personal to the societal or national to the global seems effortless. In recent years, philosophers in ethics have devoted considerable attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits better treatment of an individual’s co-nationals; while those in politics have revisited issues of international justice through, for instance, works on human rights and just war theory. These two bodies of work both address what constitutes a just world and what role the …

Review Of Human Rights In Global Politics, Christine M. Chinkin

Reviews

The fiftieth anniversary of the Universal Declaration of Human Rights in 1998, coming in the decade after the resurgence of Western-style liberal democracies, has generated much writing and activity over the current status and future development of international human rights law, practice, and discourse. International lawyers tend to take for granted the canon of rights that, in the wake of the Universal Declaration, have been enshrined within the body of international instruments that have been adopted within regional and global arenas. In the 1990s, these lawyers largely turned their attention away from standard setting and to issues of effectiveness. Considerable …

Women's International Tribunal On Japanese Military Sexual Slavery, Christine M. Chinkin

Articles

From December 8 to 12,2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading high-ranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s.

The immediate background to the tribunal's establishment was a series of events commencing in 1988 when the women's movement in the Republic of Korea began to learn of the research of …

The Relationship Between Human Rights And Refugee Law: What Refugee Law Judges Can Contribute, James C. Hathaway

Book Chapters

In a document released during the summer of 1998, the Austrian Presidency of the European Union formally questioned the continuing value of the United Nations Refugee Convention, and called for the adoption of a new "instrument of speedy assistance in the framework of the political possibilities."

The Austrian proposal would deny most refugees arriving in Europe the legal right to be protected. For the majority, protection would instead become a matter of political discretion. The proposal erroneously asserts that only a small minority of contemporary asylum seekers is entitled to Convention refugee status, in consequence of which a "new approach" …