Law Commons^™

What Are Transitions For? Atrocity, International Criminal Justice, And The Political, Paulo Barrozo

Paulo Barrozo

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension …

Finogenov C. Rusia: Agentes Químicos Incapacitantes Y El Derecho A La Vida, Lucas Arteaga

Lucas Arteaga Gatica

the article analyzes the recent judgment of the European Court of Human Rights relative to the hostage crisis on a Moscow theatre and the Russian authorities actions. Finogenov v. Russia (2012) deals, for the first time before an international tribunal, with the use of incapacitating chemical agents. This judgment did not condemn Russia for using such weapons but for its actions after the gas was released. The author’s pretensions are to expose a critical view on the basis of Human Rights and the Chemical Weapons Convention that will lead to conclude that the use of incapacitating chemical weapons, on the …

Children And Immigration: International, Local, And Social Responsibilities, Berta E. Hernández-Truyol, Justin Luna

Berta E. Hernández-Truyol

This essay focuses on the human rights of immigrant children, regardless of the legality of their presence within U.S. borders, especially with respect to health, education, and welfare. In that context, the work explores, as the title suggests, the international, local, and social/cultural normative standards that structure the responsibilities -- independently and collectively, that proverbial village -- with respect to children's well-being. We develop these ideas in three parts. First, we address the foundations of the human rights idea and specifically enumerate the particular normative notions, including international treaties that govern children's lives. Next, we discuss immigration in the United …

Culture, Nationhood, And The Human Rights Ideal, Berta E. Hernández-Truyol, Sharon E. Rush

Berta E. Hernández-Truyol

This paper was written as a part of a Symposium on Culture, Nation, and LatCrit (Latina/o Communities and Critical Race) Theory and focuses on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a methodology to analyze and detect the exclusion or silencing of voices. A paradigm is developed that, by internationalizing voice, serves as a useful tool to explore power-based silencing. In Part III, the article illustrates how the proposed paradigm can focus the …

On Disposable People And Human Well-Being: Health, Money And Power, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

The foundational premise of this essay is that health and well-being are human rights issues. My focus on this theme, specifically within the human rights paradigm, is new, passionate, and personal. On December 15, 2005, just three months before the conference that prompted the writing of this essay, I lost my partner of over 20 years. She fought a valiant, strong, and dignified fight against cancer--a journey I traveled with her. During that time I learned much about health systems and health care. Most saliently, notwithstanding the reality of the extraordinarily good care she ultimately received, I realized there is …

Sexual Labor And Human Rights, Berta E. Hernández-Truyol, Jane E. Larson

Berta E. Hernández-Truyol

In this Article, we engage the current human rights debate that dichotomizes prostitution either as a modern form of slavery or as the exercise of the right to work. This framework effectively sets up a coercion/consent polarity. These poles raise fundamental human rights issues; both the prohibition against slavery and the right to work are matters addressed by and central to the international human rights paradigm. Yet we argue in this Article that the human rights issues raised by prostitution cannot properly be studied nor moved towards meaningful resolution in the context of the prevailing polarity. Prostitution in its current …

Glocalizing Law And Culture: Towards A Cross-Constitutive Paradigm, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

This lecture addresses the relationship between law and culture in three general parts. The first part consists of a brief review of the theories addressing the relationship of law and culture, mainly the mirror theory. But I will suggest that there is more to the relationship of law and culture than one being an inert reflection of the other; hence my proposal for what I call, as a working concept, a cross-constitutive paradigm of law and culture. The second part reviews the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW''), a law that seeks to effect …

María Lugones's Work As A Human Rights Idea(L), Berta E. Hernández-Truyol, Mariana Ribeiro

Berta E. Hernández-Truyol

The work of Maria Lugones can be utilized to focus on the same ideas of human reality articulated in the human rights framework. She engages the complexity of humans -- the indivisibility of their identity components -- through her concepts of hybridity/multidimensionality. Similarly, Lugones captures the human need for self-determination -- a right embedded in the human rights framework -- in her work on autonomy, agency, and self-care. Finally, her quest for an antisubordination ideal, like the human rights mandate for equality and nondiscrimination, comes to life in her call for the recognition of and respect for the equality of …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

Nativism, Terrorism, And Human Rights -- The Global Wrongs Of Reno V. American-Arab Anti-Discrimination Committee, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

The American-Arab Anti-Discrimination Committee decision (American-Arab or AADC) is the most recent U.S. Supreme Court pronouncement regarding the intersection of immigration regulations and fundamental constitutional rights enjoyed by foreign subjects present within the United States. In American-Arab, the U.S. government commenced deportation proceedings against two legal permanent residents and six temporary visa holders on the basis of an ideological bias: the plaintiffs were alleged to be members of the Popular Front for the Liberation of Palestine (Popular Front or PFLP) -- a charge all the plaintiffs denied. The Supreme Court's ruling endorsing the legality of the government's deportation actions wholly …

Human Rights, American Exceptionalism, And The Stories We Tell, Natsu Taylor Saito

Natsu Taylor Saito

The Universal Declaration of Human Rights represents a remarkable expansion in the recognition of the fundamental rights of all peoples. Nonetheless, consensus on the implementation of these rights is elusive. Two commonly referenced obstacles to achieving such a consensus are: (1) the United States’ practice of unilaterally exempting itself from international human rights treaties, i.e., American exceptionalism; and (2) resistance from those who see the international human rights movement as a means of imposing Western values on non-Western cultures. Considering these as related issues, both deriving from the Eurocentric nature of contemporary international law, this essay suggests that a truly …

Defender Of Humanity: In Honor Of Peter Cicchino, A, Leti Volpp

Leti Volpp

No abstract provided.

Righting Wrongs, Leti Volpp

Leti Volpp

No abstract provided.

Breaking The Shackled Silence: Unheard Voices Of Women From Kandhamal, Saumya Uma

Dr. Saumya Uma

The Necessity Of A Human Rights Accountabilty For The United Nations, Gerhard Niedrist

Gerhard Niedrist

The United Nations is an exceptional organization that covers nearly all states of the world. The UN has not only contributed greatly to the maintenance of international peace and security, but also has contributed significantly to the development of the present international human rights regime. With the end of the Cold War and the new geopolitical order in the early nineties, the concept of peace maintenance changed more and more to active peace-enforcement. UN operations gradually turned into “peace-making” operations, like those in Yugoslavia and Rwanda. This new type of peacemaking also led to new tasks for the UN, which …

Reconciling Liberalism And Judaism? Human Rights In Israel, Raphael Cohen-Almagor

raphael cohen-almagor

This essay argues that mixing religion in politics is problematic. It becomes destructive when the religion is unyielding and coercive. Whenever religious powers are on the rise, the foundations of liberal democracy are shaken and its protective mechanisms are regressing. Indeed, in Israel egalitarianism is still in the making. Orthodox Judaism and liberal democracy are in conflict. The rise of one comes at the expense of the other in a situation where religion does not encompass the concept of freedom from religion. This essay further argues that Palestinians and Israelis are entitled to the same rights and liberties. Accommodations and …

Culture Change, Lan Cao

Lan Cao

No abstract provided.

Denying Freedom Rather Than Securing The Country: National Security Is Undermined By Laws Governing Battered Immigrants, Eve Tilley-Coulson

Eve Tilley-Coulson

Relief for battered immigrants is not an obvious national security matter per se, yet remedies are enacted in conjunction with stringent interpretations of immigration law, as though victims pose a security threat. Discrepancies exist between the immigration laws themselves—which attempt to secure the United States from disease, violence, and illegal activity—and the loopholes within remedies under these laws, unnecessarily removing victims and perpetuating a cycle of fear and abuse. By displacing the victim, rather than the abuser, the government allows the cycle of violence to continue, while simultaneously breaking up families and creating disorder and instability. The economic and societal …

Os Direitos Humanos E A Responsabilidade Do Credor Internacional, Douglas Antônio Rocha Pinheiro

Douglas Antônio Rocha Pinheiro

Based on the modern concept of odious debt and the loan policy of the World Bank, this article intends to point out the viability of requiring respect for human rights as an essential condition for the international lending.

Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Tom Ginsburg

Tom Ginsburg

No abstract provided.

Human Rights Conventions And Reservations: An Examination Of A Critical Deficit In The Cedaw, Michael Buenger

Michael Buenger

Human rights agreements like CEDAW contain language that seeks to inspire and establish the legal boundaries of state action with regards to protected rights. Such agreements also contain reservation provisions that enable states to join an agreement and simultaneously exempt themselves from the very substantive goals the agreement seeks to achieve. In the past, the issue of reservation compatibility has been treated as political questions under an objection process. Establishing a mechanism for testing reservation compatibility before the ICJ is a better means of ensuring that states do not nonchalantly exempt themselves from human rights obligations through reservations.

International Economic Law And The Right To Food, Carmen G. Gonzalez

Carmen G. Gonzalez

This chapter examines the historic and current policies and practices that have contributed to food insecurity in the global South. It analyzes the impact of international economic law on the patterns of trade and production that perpetuate food insecurity, and recommends concrete measures that the international community might take through law and regulation to promote the fundamental human right to food. Part I provides a short introduction to the right to food framework and its implications for international trade, investment, and finance. Part II places the current food crisis in historical perspective by discussing the trade and aid policies that …

Homage To Filártiga, Perry S. Bechky

Perry S. Bechky

The Supreme Court’s new decision in Kiobel severely restricted human rights litigation under the Alien Tort Statute (ATS). In doing so, the Court gravely injured the canonical human rights case of Filártiga. This essay celebrates Filártiga, demonstrating that it survives Kiobel in four key respects: its approach to the sources of international law, its conclusion that international law prohibits torture, its dynamic vision of the way the human rights revolution transformed international law, and its hope that courts can help make real a world without torture. The essay presents Filártiga as a living presence and a beacon for future development …

International Adjudication Of Land Disputes: For Development And Transnationalism, Perry S. Bechky

Perry S. Bechky

This short article offers two observations about international adjudication of land disputes. First, the article shows that such adjudication is intended to further development, but that this goal is served better, if counter-intuitively, by rejecting the so-called Salini contribution-to-development test in favor of case-by-case adjudication on the merits. Second, the article locates such adjudication within the modern trend toward transnationalism, a trend that unites international investment law with human rights law. In light of these observations, the article concludes that international adjudication of land disputes may contribute to such human values as development, human rights, and the rule of law.

Battered And Betrayed: A Report Of Visit To Muzaffarnagar Camps, Saumya Uma, Hasina Khan

Dr. Saumya Uma

Implementing Human Rights In Closed Environments Through The United Nations Convention Against Torture, Claudio M. Grossman

Claudio M. Grossman

The Breakthrough: Human Rights In The 1970s (Book Review), Richard J. Wilson

Richard J. Wilson

Restoration Of Historical Memory And Dignity For Victims Of The Armenian Genocide: A Human Rights Law Approach To Effective Reparations, Richard J. Wilson

Richard J. Wilson