Law Commons^™

Restricting The Rights Of Poor Mothers: An International Human Rights Critique Of "Workfare", Shruti Rana

Shruti Rana

In every society, the work that women do is undervalued and unrecognized. Political and social tensions behind conceptions of work, motherhood, and equality can ignite movements that threaten the human rights of women. One such movement is underway in the United States where recent “Workfare” provisions specifically target and punish the most vulnerable members of society under the guise of reform and morality. This critique of Workfare aims to demonstrate some of the dynamism and power of a human rights framework, and to lay the groundwork for effective action to improve the plight of the single mothers who rely on …

Global Feminism: Feminist Theory’S Cul-De-Sac, Elora Halim Chowdhury

Elora Halim Chowdhury

Global feminism has been critical of the earlier notion of "global sisterhood" and its uncritical attachment to commonalities of women's oppression around the world. However, in this article I argue that global feminism curiously remains inadequately accountable for its differential attitude toward issues of difference and inequality among communities within the U.S. versus those alleged differences and inequalities across the U.S. borders. Consequently, global feminism, using a universal human rights paradigm, constructs for itself the role of the heroic savior, reminiscent of colonialist civilizing mission (Abu-Lughod 2002) and in line with current U.S. imperialist interventions. Strategies for countering this newly …

Fair Trial Guarantees Before The Court Of Arbitration For Sport, Jernej Letnar Cernic

Jernej Letnar Černič

The right to a fair trial is one of the backbones of the rule of law and a conditio sine qua non for the protection of human rights and fundamental freedoms. This article examines whether fair trial guarantees also exist before the Court of Arbitration for Sport. It attempts to identify whether the Court of Arbitration for Sport follows the fair trial guarantees developed in the jurisprudence of the European Court of Human Rights. This article thereafter tries to draw out an understanding of fair trial guarantees in sports arbitration.

The Romantic Corporation: Trademark, Trust, And Tyranny, Malla Pollack

Malla Pollack

Humans in the United States, and many other market-centric nations, live in a world extensively populated by friendly, helpful, honest, charitable, patriotic beings worthy of our respect and support – none of whom exist. Yet these fellow-beings speak to us humans so often that they must be part of our ingrained perception of the world. Who are they? They are the marketing personas created by totally self-interested businesses. They harm humans not only by misdirection in specific instances, but by providing cover for our government’s improper prioritization of corporate interests over human interests. This systemic distortion of public perception is …

The European Social Charter And Its Implementation In The Republic Of Azerbaijan, Zaka Mirzayev

Zaka Mirzayev Zaka

In the article the European Social Charter, the core of the European social model is studied from the perspective of its potential implementation challenges in the Republic of Azerbaijan. Azerbaijan's efforts for the due fulfillment of the Charter obligations are analyzed in light of its legislation and legal practice, as well as in the context of the government’s relevant national reports that have been submitted to the Council of Europe up to day. Further, theoretical and practical problems impeding the treaty’s full implementation in the country are identified. The article also deals with issues relating to the Charter’s international and …

Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival

Robert Percival

Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …

Ancient Legal Maxims And Modern Human Rights, Dr. J. Stanley Mcquade

J. Stanley McQuade

No abstract provided.

The Wisdom And Enforceability Of Welfare Rights As Constitutional Rights , Herman Schwartz

Herman Schwartz

No abstract provided.

Criminalizing Hate Speech: A Comment On The Ictr’S Judgment In The Prosecutor V. Nahimana, Et Al., Diane F. Orentlicher

Diane Orentlicher

No abstract provided.

The Future Of Universal Jurisdiction In The New Architecture Of Transnational Justice, Diane Orentlicher

Diane Orentlicher

In this essay the author addresses several issues raised by emerging trends in the use of universal jurisdiction. She argues that recent developments raise concerns about how jurisdictional authority should be allocated among states as well as between officials of states and officers of international tribunals. Growing recourse to universal jurisdiction raises questions about whose claim should receive priority when more than one court seeks to prosecute an individual for the same crime. The question has been further complicated by the emergence of a new breed of court, such as the Special Court for Sierra Leone, which is shaped by …

A Ripening Obligation: The Responsibility To Protect International Human Rights In States Of Recent Occupation, Benjamin K. Grimes

Benjamin K Grimes

The United Nations has described State unwillingness to address extra-territorial human rights abuses as a failure of “civic courage … at the highest level.” That view is consistent with a trend in international jurisprudence on the issue of State responsibility for respecting and protecting human rights. In line with these opinions, this article examines the arc of international understanding of human rights responsibilities to identify the proper path for U.S. military operations. It proposes specific practical solutions to guide the United States in recognizing not only its joint legal responsibility for protecting human rights in post-occupation situations (as in Afghanistan), …

A Legal Standard For Post-Colonial Land Reform, Amelia Peterson

Amelia Peterson

This article proposes a legal standard for the design of post-colonial land redistribution policies. It confronts the complex interface between the need for land reform to alleviate land pressure in many developing countries, and the importance of upholding the idea of property. Regardless of which side of the post-colonial milieu we most quickly sympathize with, human rights law removes the tendency to seek out the victim by framing its language in terms of the homo sapien, not one particular race, gender, or economic status. It is in the interest of the various stakeholders enmeshed in post-colonial land imbalance debates and …

International Human Rights And United States Law: Predictions Of A Courtwatcher, Martha F. Davis

Martha F. Davis

No abstract provided.

Occupy Wall Street And International Human Rights, Martha F. Davis

Martha F. Davis

This article employs a human rights lens to examine the extreme economic inequality targeted by Occupy Wall Street (OWS). First, I look at the fundamental question of whether such economic inequality constitutes a human rights violation. To analyze that question, I begin by examining the extent to which poverty has been deemed to raise international human rights concerns, finding that international human rights institutions have generally addressed poverty by focusing on the ways in which poverty frustrates the exercise of substantive and procedural human rights. I then use a similar lens to examine the issue of economic inequality, concluding that …

Does Justice Always Require Prosecution? The International Criminal Court And Transitional Justice Measures, Elizabeth B. Ludwin King

Elizabeth B Ludwin King

Two provisions of the Rome Statute of the International Criminal Court (ICC), those regarding complementarity and discretion to decline “in the interests of justice,” give the ICC Prosecutor the ability to yield to a state that wants to undertake its own transitional justice program. Given the global preference for the imposition of individual criminal liability for serious international crimes, as evidenced by the creation of the ICC, it is highly likely that most such programs will involve prosecution. This Article asks whether the ICC Prosecutor might step aside when faced with a state that favors other mechanisms of accountability and …

Christianity In China: Maintaining Social Order Trumps Religious Freedom, Tina M. Trunzo-Lute

Tina M Trunzo-Lute

China is a powerful country with a population of 1.3 billion and the world’s second largest economy. While China excels in many areas, it lacks in providing religious freedom to its citizens. China has a few safeguards in place for religious believers, including the ratification of the ICESCR and provisions in its constitution. However, the inconsistent application of the safeguards and the government’s ultimate goals of furthering socialism and maintaining social order inhibit Christians in China from having the ability to freely and openly practice their religion without fear of persecution. This fear has thrust millions of Christians into illegal …

The Human Rights Council And The Convergence Of Humanitarian Law And Human Rights Law, Daphne Richemond-Barak

Daphne Richemond-Barak

This Article examines and challenges the assumption that the Human Rights Council can and ought to address violations of international humanitarian law. Though envisaged as the main guardian of human rights within the United Nations system, the Human Rights Council views its mandate as encompassing both human rights and international humanitarian law. This extension of its mandate to humanitarian law is not entirely surprising, given the close relationship between IHL and human rights law. Yet, a comparison with other human rights bodies shows that the Council has gone further and with less caution than any other human right body called …

Babies Without Borders: Human Rights, Human Dignity And The Regulation Of International Commercial Surrogacy, Yasmine Ergas

Yasmine Ergas

In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned, stateless and parentless.” States have tried to address the individual dramas through ad hoc solutions – issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic …

Babies Without Borders: Human Rights, Human Dignity And The Regulation Of International Commercial Surrogacy, Yasmine Ergas

Yasmine Ergas

In recent decades, a robust international market in commercial reproductive surrogacy has emerged. But, as German citizens Jan Balaz and Susan Lohle discovered when they struggled to engineer the last-minute diplomatic compromise that saved their commissioned twins from becoming wards of the Indian state, conflicts among legal frameworks have placed the children born at risk of being “marooned, stateless and parentless.” States have tried to address the individual dramas through ad hoc solutions – issuing emergency entry documents for children caught at borders or compelling administrative authorities to recognize birth certificates related to surrogacy arrangements that run counter to domestic …

Freedom From Fear: International Law As A Constructive Force For Supporting American Foreign Policy, Winston Nagan

Winston P Nagan

This article reveiews the history of the trend in the United States Supreme Court for the strong application of international law as a part of U.S. law. It reviews the judicial practice as well as the influence of extra-judicial factors such as exceptionalism and isolationism. This article reflects on the contemporary problems which have generated a secepticism of international law and seeks to clarify the compatability of the most defensible values of U.S. foreign policy and those of the U.N. Charter.

The Boston Principles: An Introduction, Hope Lewis, Rachel E. Rosenbloom

Hope Lewis

This commentary introduces the Draft Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens. The Draft Boston Principles are the outcome of "Beyond National Security: Immigrant Communities and Economic, Social, and Cultural Rights," an institute held at Northeastern University School of Law in Boston, Massachusetts (United States of America) on October 14-15, 2010. Convened by the Program on Human Rights and the Global Economy (PHRGE) with the sponsorship of the Ford Foundation and the Human Rights Interest Group of the American Society of International Law, the institute brought together leading immigrants' rights attorneys, human rights advocates, and scholars …

What Have We Learned From The Wars Of The Twentieth Century?, Winston Langley

Winston E. Langley

Relative deprivation (RD) and its associated twin, the “othering” of human groupings, together became the root cause of the wars of the twentieth century. By examining the thirty-years of war between 1914 and 1945 and the Cold War that prevailed for the rest of the half-century, the author explores the way in which relative deprivation may be seen to have expressed itself through nationalism, liberalism, and Marxism — the three great ideologies of the twentieth century that have competed against each other and have contributed to the perception of groups and individuals that they are relatively deprived. He investigates the …

Proportionality In Interpreting Constitutional Rights: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Proportionality In Interpreting Constitutional Rights: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam [Thuyết Cân Đối Trong Vấn Đề Giải Thích Các Quyền Về Hiến Pháp: So Sánh Giữa Canada, Liên Hiệp Các Vương Quốc Anh Và Singapore Và Kinh Nghiệm Cho Vìệt Nam], Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not expressly indicate how the courts should determine that applicants’ rights have been legitimately restricted. To this end, courts in jurisdictions such as Canada and the United Kingdom have adopted the European doctrine of proportionality. Essentially, this requires them to balance opposing types of public interests – the interest sought to be protected by the rights …

Human Rights And The Model Rules Of Professional Conduct: Intersection And Integration, Martha F. Davis

Martha F. Davis

The American Bar Association’s Model Rules of Professional Conduct nowhere mention human rights as either a means or an end to ethical lawyering. The origins and history of the modern ABA Code, framed at a time when the ABA leadership was hostile to universal human rights norms, suggest possible explanations for this omission as an initial matter. But the Model Rules are frequently revised, and the ABA is now a leader in the promulgation and implementation of human rights worldwide. Still, the model ethics rules remain silent on human rights. State ethics codes, largely drawn from the ABA model, are …

Human Rights In The Trenches: Using International Human Rights Law In "Everday" Legal Aid Cases, Martha F. Davis

Martha F. Davis

No abstract provided.

Upstairs, Downstairs: Subnational Incorporation Of International Human Rights Law At The End Of An Era, Martha F. Davis

Martha F. Davis

Traditionally, states and the federal government maintained an "upstairs, downstairs" relationship when it came to global affairs, with states serving in the background role as the downstairs members of the national household. However, the traditional federal-state relationship in the international affairs arena is increasingly unworkable as states become more and more transnationally active. This is particularly true in the area of human rights implementation, where states have both used their own policies to associate with human rights movements worldwide and have incorporated human rights norms into their own state laws. Federal courts' approach to human rights implementation, however, has failed …

The Spirit Of Our Times: State Constitutions And International Human Rights, Martha F. Davis

Martha F. Davis

States have a direct responsibility to implement the U.S.'s international obligations in many areas governed by existing human rights treaties. This responsibility is drawn from the nature of federalism, the U.S. Constitution and from states' own constitutions. In light of the relatively populist structure of state governmental institutions, this implementation may be appropriately accomplished by state courts as well as the political branches of state governments. International law has a particularly important role to play in this process, particularly when courts construe states' affirmative constitutional grants - for example, for public health, education or welfare - that have no federal …

In The Interests Of Justice: Human Rights And The Right To Counsel In Civil Cases, Martha F. Davis

Martha F. Davis

This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called "Civil Gideon" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther …

Remarks At The Launching Of The Anti-Trafficking Review, Anne T. Gallagher

Anne T Gallagher

Remarks delivered by Dr Anne Gallagher, Guest Editor, at the launch of the new journal: Anti-Trafficking Review.