Law Commons^™

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Equal By Law, Unequal By Caste: The "Untouchable" Condition In Critical Race Perspective, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Caste-based oppression in India lives today in an environment seemingly hostile to its presence: a nation-state that has long been labeled the “world's largest democracy;” a progressive and protective constitution; a system of laws designed to proscribe and punish acts of discrimination on the basis of caste; broad-based programs of affirmative action that include constitutionally mandated reservations or quotas for Dalits, or so-called “untouchables;” a plethora of caste-conscious measures designed to ensure the economic “upliftment” of Dalits; and an aggressive economic liberalization campaign to fuel India's economic growth.

This Article seeks to answer the question of how and why this …

Remedial Approaches To Human Rights Violations: The Inter-American Court Of Human Rights And Beyond, Tom Antkowiak

Faculty Articles

A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding …

Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck

Articles, Book Chapters, & Popular Press

Home state reluctance to engage in the regulation of international corporate activities in the human rights context is sometimes expressed as a concern that it would constitute an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a role for home states in regulating so as to prevent and remedy human rights harms is increasingly being suggested. The purpose of this paper is to explore theoretical …

Home State Responsibility And Local Communities: The Case Of Global Mining, Sara L. Seck

Articles, Book Chapters, & Popular Press

Home states that are actively engaged in global mining have considered and rejected calls to regulate the conduct of transnational mining corporations so as to prevent and remedy human rights and environmental harms. This reluctance to regulate is often expressed as a concern that extraterritorial regulation will conflict with the sovereignty of foreign states. This paper argues that the public international law of jurisdiction is permissive of home state regulation that can be justified under the nationality or territoriality principles, provided that there is no true conflict with an exercise of host state jurisdiction. In the human rights and environment …

Home State Obligations For The Prevention And Remediation Of Transnational Harm: Canada, Global Mining And Local Communities, Sara Seck

Articles, Book Chapters, & Popular Press

Canadian mining companies, stock exchanges, mining professionals, and the Canadian government itself, play a significant role in global mining. This unpublished PhD dissertation, completed in January 2008, explores whether Canada has a legal obligation to regulate to prevent and remedy human rights and environmental harm associated with Canadian mining companies operating abroad. Canada and global mining serve as a case study to explore the broader question of whether home states have obligations under international environmental and human rights law. The key claims examined in this dissertation are as follows. First, the exercise of unilateral home state jurisdiction over transnational corporate …

Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy

Articles, Book Chapters, & Popular Press

Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …

Just Back From The Human Rights Council, Makau Mutua

Journal Articles

The piece critically looks at the transition from the UN Commission on Human Rights to the UN Human Rights Council in 2006 and questions whether the change is one of substance or form. It argues that the same paralysis that dogged the Commission will continue to afflict the Council because power politics and regional blocs - fueled by the global asymmetries of power - will not go away. The piece also contends that the charge by the West that the Commission was utterly compromised by the Third World was without merit because it was the one forum where developing could …

The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford

Journal Articles

For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or norm cascades), and norm internalization. As such, constructivism treats international law as a dynamic process in which norm entrepreneurs interact with state actors …

Common Ground: The Case For Collaboration Between Anti-Poverty Advocates And Public Interest Intellectual Property Advocates, Deborah J. Cantrell

Publications

This article examines the previously unappreciated common ground between scholars and advocates who work to eliminate poverty, and scholars and advocates who work on intellectual property issues in the public interest. The article first illustrates how scholars and advocates working on poverty and on public interest intellectual property have relied on rights talk to frame their social movements. Under the conventional narrative, the framing has accentuated differences between the movements. As the Article explains, the two movements share core principles and should recognize shared interests and goals. By developing a new model of how to view public interest movements, the …

Forward: To Prevent And To Punish: An International Conference In Commemoration Of The Sixtieth Anniversary Of The Genocide Convention, Michael P. Scharf, Brianne M. Draffin

Faculty Publications

No abstract provided.

Bridging The Gap Between Truth And Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

As suggested by the title Bridging the Gap between Truth and Reconciliation: Restorative Justice and the Indian Residential Schools Truth and Reconciliation Commission, this essay examines the potential gap between truth and reconciliation and suggests that the principles underlying restorative justice provide the necessary bridge. With respect to the goal of reconciling relationships, the author makes it clear that she is speaking of social relationships, not personal relationships. Restorative justice “is not about getting parties to hug and make up; rather, it strives to create the conditions of social relationships in which all parties might achieve meaningful, just, and peaceful …

Bridging The Gap Between Truth And Reconciliation: Restorative Justice And The Indian Residential School Truth And Reconciliation Commission, Jennifer Llewellyn

Articles, Book Chapters, & Popular Press

As suggested by the title Bridging the Gap between Truth and Reconciliation: Restorative Justice and the Indian Residential Schools Truth and Reconciliation Commission, this essay examines the potential gap between truth and reconciliation and suggests that the principles underlying restorative justice provide the necessary bridge. With respect to the goal of reconciling relationships, the author makes it clear that she is speaking of social relationships, not personal relationships. Restorative justice “is not about getting parties to hug and make up; rather, it strives to create the conditions of social relationships in which all parties might achieve meaningful, just, and peaceful …

Protecting Civilians During The Fight Against Transnational Terrorism: Applying International Humanitarian Law To Transnational Armed Conflicts, Karinne Lantz

Articles, Book Chapters, & Popular Press

This article will explore the ability of international law- particularly international humanitarian law (IHL)-- to protect innocent civilians from harm in the context of the fight against transnational terrorism. To achieve the goal of allowing states to protect their populations from the threat of terrorism, while at the same time respecting the rule of law and the rights of innocent civilians, it is argued that, while IHL must remain applicable only to armed conflicts, it must also evolve so that it clearly applies to "transnational" armed conflicts.

The Legacy Of The Nuremberg Doctors' Trial To American Bioethics And Human Rights, George J. Annas

Faculty Scholarship

In this lecture I argue that modern bioethics was born at the Nuremberg Doctors' Trial, a health law trial that produced one of the first major human rights documents: the Nuremberg Code. Accepting this conclusion has significant consequences for contemporary American bioethics generally, and specifically in the context of our continuing global war on terror in which the United States uses physicians to help in interrogations, torture, and force-feeding hunger strikers.

The primary force shaping the agenda, development, and current state of American bioethics has not been either medicine or philosophy, but law, best described as health law. Like bioethics, …

Preventing, Implementing And Enforcing International Humanitarian Law, Juan E. Mendez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Book Review, Mark C. Modak-Truran

Journal Articles

This book brings together two previously separate aspects of Michael J. Perry’s thoughtful and pioneering scholarship dealing with the proper relation of morality (especially religious morality) to law and human rights and the role of courts in protecting human rights.

Globalization, Legal Transnationalization And Crimes Against Humanity: The Lipietz Case, Vivian Grosswald Curran

Articles

Decided in June, 2006, the Lipietz case marks the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. It both departs from prior, established French law and reflects numerous mechanisms by which national law is transnationalizing. The case illustrates visible, invisible, substantive and methodological changes that globalization is producing as law's transnationalization changes national law. It also suggests some of the difficulties national legal systems face as their transnationalization produces legal change at a rate that outpaces the national capacity for efficient adaptation. The challenges illustrated by Lipietz, characteristic of globalization, include …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Mandatory Retirement: Termination At 65 Is Ended, But Exceptions Linger On, Anthony F. Sheppard

All Faculty Publications

In employment law, mandatory retirement ("MR") is the compulsory termination of employment as a result of the employee having reached a specified age. In legal circles, MR is regarded as retirement rather than dismissal, though an individual who wishes to continue to work beyond a specified age might disagree. The elimination of MR in British Columbia resulted from the deletion of five little words in the definition of "age" in section 1 of the British Columbia Human Rights Code, RSBC 1996, c 210 (BCHRC). Section 1 of the BCHRC formerly defined "age" as meaning "an age of 19 years or …

Torture And The Biopolitics Of Race, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

Proactive Complementarity: The International Criminal Court And National Courts In The Rome System Of Justice, William W. Burke-White

All Faculty Scholarship

When the International Criminal Court (ICC) was established in 2002, States, NGOs, and the international community had extraordinarily high expectations that the Court could bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations appear unfulfilled, due to political constraints, resource limitations, and the inability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment of resources, expectations, and legal mandate of the ICC, arguing that the Court must more actively engage with national governments and encourage States to undertake their own prosecutions of international crimes. The …

Education And Promotion Of Human Rights From A European And American Perspective, Rett R. Ludwikowski

Scholarly Articles

What are the concrete goals of human rights education and what obstacles may restrain the development of successful educational projects? What do we actually teach and how advanced are our educational programs in general, and academic education in particular? Is there a concrete consensus on the interdependencies between different types of human rights, their hierarchy, and the standards of their protection? Is an optimistic attitude regarding the universalistic doctrine of human rights fully rooted in facts? How may we communicate to our students the concept of universally recognized, irremovable, and interdependent rights while acknowledging the many ethical, religious and cultural …

The Inter-American Human Rights System: A Primer, Caroline Bettinger-López

Articles

No abstract provided.

Tribunal-Hopping With The Post-Conflict Justice Junkies, Elena Baylis

Articles

The field of post-conflict justice is characterized in no small part by international interventions into post-conflict settings. International interveners invest substantial resources toward the goals of post-conflict justice, including creating legal accountability for atrocities and rebuilding local and national justice systems that respect human rights and rule of law. The aims of post-conflict justice and the mechanisms by which the international community can contribute to post-conflict legal institutions and processes have been and continue to be studied intensively.

But while the institutions, processes, and goals of post-conflict justice have been carefully scrutinized, another aspect of international interventions into post-conflict justice …

Rethinking Subsidiarity In International Human Rights Adjudication, William M. Carter Jr.

Articles

This article suggests that a re-evaluation of the principle of subsidiarity is in order. While I make no sweeping claims that the principle of subsidiarity is always preferable or always undesirable, I do suggest that a close look at the myriad ways in which subsidiarity applies reveals that it may sometimes impede, rather than advance, the cause it purports to serve: namely, achieving universality of human rights. This article identifies situations where subsidiarity is more likely to diminish human rights protections that it is to advance them and suggests that subsidiarity should be abandoned or minimized in such areas.

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Articles

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …

The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo

Faculty Scholarship

No abstract provided.

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.