Law Commons^™

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Two Constitutional Rights, Two Constitutional Controversies, Michael J. Perry

Faculty Articles

My overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom. The two controversies I …

Unsung Heroes In Sa And Beyond Help Immigrants Find Hope, Erica B. Schommer

Faculty Articles

No abstract provided.

After Years Of Working With ‘Ritmo’ Detainees, I Know The Inhumane Facility Doesn’T Deserve A Second Chance, Erica B. Schommer

Faculty Articles

No abstract provided.

Autonomy And Accountability: Why Informed Consent, Consumer Protection, And Defunding May Beat Conversion Therapy Bans, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

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

Faculty Articles

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 …

Freedom Of Conscience As Religious And Moral Freedom, Michael J. Perry

Faculty Articles

In another essay being published contemporaneously with this one, I have explained that as the concept "human right" is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right-for example, as a treaty-based right-is, in part, that conduct that violates the right violates the imperative, articulated in Article i of the Universal Declaration, to "act towards all human beings in a spirit of brotherhood." Each of the human rights …

A Dark Side Of Virtue: The Inter-American Court And Reparations For Indigenous Peoples, Thomas Antkowiak

Faculty Articles

"The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals. Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments. As a result, the Court has become a global leader in the adjudication and redress of indigenous claims. For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital. With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other …

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

The Global Food System, Environmental Protection, And Human Rights, Carmen G. Gonzalez

Faculty Articles

The global food system is exceeding ecological limits while failing to meet the nutritional needs of a large segment of the world’s population. While law could play an important role in facilitating the transition to a more just and ecologically sustainable food system, the current legal framework fails to regulate food and agriculture in an integrated manner. The international legal framework governing food and agriculture is fragmented into three self-contained regimes that have historically operated in isolation from one another: international human rights law, international environmental law, and international trade law. International trade law has taken precedence over human rights …

Lemkin’S Situation: Toward A Rhetorical Understanding Of "Genocide", Perry Bechky

Faculty Articles

Legal debate about genocide revolves around the definition set forth in the 1948 Genocide Convention, but often critically and with prescriptions for amendment. Many other definitions compete in public discourse. Often lost in all the discussion about what genocide does or should mean is the original intent of Raphael Lemkin, the man who coined the word and convinced the United Nations to denounce and outlaw the “odious scourge” of genocide. This Article contributes to genocide discourse by conceiving of Lemkin’s coinage as rhetoric – that is, as part of his strategy to persuade the nations of the world to change …

The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod

Faculty Articles

Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice, the individual person determines the value of human goods such as life, health, and marriage.

On the other side, proponents of strong government restrictions on personal choice …

An Emerging Mandate For International Courts: Victim-Centered Remedies And Restorative Justice, Tom M. Antkowiak

Faculty Articles

More than ever, international attention has been directed to the needs of those who have suffered human rights violations. Nevertheless, the chasm between what victims want and what they obtain is still vast. The Inter-American Court of Human Rights, unlike most tribunals, has sought to narrow this gap by ordering remedies that respond to victims’ demands for recognition, restoration, and accountability.

In contrast, for decades the European Court of Human Rights has applied a restrictive remedial model. The European Court, inordinately concerned about its institutional integrity, curtails remedies — often delivering only declaratory relief and monetary damages. Since the Inter-American …

Global Finance, Multinationals And Human Rights: With Commentary On Backer’S Critique Of The 2008 Report By John Ruggie, Faith Stevelman

Faculty Articles

This article references the excellent article of Larry Cata Backer, as it provides an analysis of the 2008 Report's "Protect, Respect, Remedy" (PRR) framework. Ruggie's most recent efforts, reflected in the 2010 Report, are directed at operationalizing the PRR framework set forth in the 2008 Report. Both these reports have been vetted internationally amongst governments, lawyers, academics and human rights advocates. How will governments, corporations, trade associations and rights advocates conceptualize and construct the fora and modes of recourse available to persons aggrieving human rights abuses? That question is the central focus of the 2010 Report and, as such, lies …

The Global Food Crisis: Law, Policy And The Elusive Quest For Justice, Carmen G. Gonzalez

Faculty Articles

The food crisis of 2008, the subsequent financial crisis, and the ongoing climate crisis have created new challenges to the attainment of global food security. This essay examines the historic and current practices that have contributed to food insecurity in developing countries, and recommends several steps that the international community might take to promote the fundamental human right to food. The essay begins by outlining the trade and aid policies that laid the foundation for food insecurity in the global South from colonialism until the early twenty-first century. It then examines the impact of the financial crisis and the climate …

The (Contingent) Value Of Autonomy And The Reflexivity Of (Some) Basic Goods, Adam J. Macleod

Faculty Articles

Many of the legal and policy issues about which people today get most exercised turn on a little-understood relationship between two fundamental principles. On one hand is the principle of autonomy, which, for reasons explored in this article, is often employed in defense of greater freedom and less government intervention in matters of morals and self-harmful conduct. On the other hand is respect for basic goods, those ends and purposes that constitute ultimate, underived, and intelligible reasons for rational action, and which include knowledge, human life, and community, among others. Basic goods provide reasons for human purposing and action (as …

Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner

Faculty Articles

This article traces the Nuremberg trials' influence on human rights litigation in the United States under the Alien Tort Statute, especially in the area of corporate complicity, and argues that the use of the Nuremberg trials as precedent in modern domestic human rights litigation is appropriate.

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 …

Reinforcing Refugee Protection In The Wake Of The War On Terror, Edwin Odhiambo Abuya

Faculty Articles

This article examines how the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) can be used as a practical tool to enhance the protection of persons who have fled their home States in search of asylum in the wake of the global "war on terror." It compares and contrasts provisions of CAT to similar provisions contained in international refugee law. This article contends that, in some respects, the protection provisions of CAT are wider than those found in international refugee law, and, in other respects, narrower than those found in international refugee law. It concludes …

Moiwana Village V. Suriname: A Portal Into Recent Jurisprudential Developments Of The Inter-American Court Of Human Rights, Thomas Antkowiak

Faculty Articles

On June 15, 2005, the Inter-American Court issued its judgment in Moiwana Village v. Suriname, which held Suriname responsible for numerous human rights violations and ordered several remedial measures. In a separate opinion, one of the Tribunal's veteran judges, Ant¿nio Can¿ado-Trindade, wrote that the case "raises issues of great transcendence." Certainly, the decision illustrates several of the Court's latest jurisprudential developments, and navigates a few rising socio-political tides in South and Central America. This brief essay seeks to demonstrate how the Moiwana case: a) presents factual situations that are increasingly common before the Court; b) continues to develop key legal …

Civil Liability For Violations Of International Humanitarian Law: The Jurisprudence Of The Ethiopia-Eritrea Claims Tribunal In The Hague, Won Kidane

Faculty Articles

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions. In practice, the enforcement of this important provision of international humanitarian law has remained a matter …

Past Reflections, Future Insights: African Asylum Law And Policy In Historical Perspective, Edwin Odhiambo Abuya

Faculty Articles

This article argues that an understanding of the evolution of asylum is an essential ingredient in the search for ideas and perspectives to the plight facing forced migrants. Using Kenya as a case study, the paper evaluates the extent to which procedures used to determine claims for asylum, protection outcomes and entitlements met international human rights and refugee law standards. It is contended that limited resources, porous boundaries and the mass movement of asylum seekers have compromised the level of protection offered to those who seek surrogate protection in African states like Kenya. In conclusion, critics in the area of …

Geography And International Law: Towards A Postcolonial Mapping, Tayyab Mahmud

Faculty Articles

Postcolonial theory aims at a critical interrogation of legitimizing knowledge claims put forward by proponents of the resurgent Empire. This article undertakes such an interrogation at the intersection of geography and international law. It aims to demonstrate that both modern geography and modern international law were constituted in, by, and through imperatives of Empire and unavoidably bear traces of their formative origin. The aim is to theorize the spatiality of global relations of domination and resistance under the shadow of international law. The article first identifies the vantage point of this critical engagement, namely postcolonial approach to inquiry. It then …

Civil Gideon: A Human Right Elsewhere In The World, Raven Lidman

Faculty Articles

The right to free counsel in civil cases is widely accepted around the world but not in the United States. In England the right originated over five hundred years ago. Twelve European countries provided the poor with free lawyers even before 1979, when the Council of Europe required its members to do so as a matter of international human rights law. The standards for eligibility and scope of legal services vary, and means and merit tests are common.

Addressing The Scourge Of Human Trafficking: The Challenge Ahead, Roza Pati

Faculty Articles

No abstract provided.

Walking While Muslim, Margaret Chon, Donna E. Arzt

Faculty Articles

In the post-9/11 era, what exactly is meant by race? This essay claims that both domestic civil rights law and international human rights law simultaneously create and obscure racial identity increasingly constructed through Muslim religious identity. The argument unfolds in several parts. First, by analogy to the racial formation process that occurred with the Japanese American community after World War II, we argue that a group's religious identity can contribute to the perception of a group as a racially different and inferior "other." Second, among other elements, religious identity is under-analyzed as a key element of racial formation. Third, post-9/11 …

The Cambodian Amnesties: Beneficiaries And The Temporal Reach Of Amnesties For Gross Violation Of Human Rights, Ronald Slye

Faculty Articles

This article uses the two amnesties granted by the Cambodian government in 1994 and 1996 to explore two important legal issues raised by amnesties generally: 1) to whom is the amnesty granted; and 2) for how long will the amnesty last. The first issue addresses the beneficiary question – who is able to take advantage of an amnesty. The most interesting issue raised by the beneficiary question is whether an amnesty should be restricted to either superiors or subordinates. The article discusses this choice in the context of the Cambodian amnesties, other amnesties, and international law, and highlight the moral, …

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants, Donna F. Coltharp

Faculty Articles

No abstract provided.

Truth As Right And Remedy In International Human Rights Experience, Thomas Antkowiak

Faculty Articles

Early this year, the Inter-American Court of Human Rights in San Jose, Costa Rica, was faced yet again with a seemingly basic question: Does an individual have a legal right to know the truth about the circumstances surrounding the serious human rights violations a loved one has suffered? One might expect to encounter such a privilege in our victim centered system of international human rights protection-especially within the progressive jurisprudence of the Inter-American Court. Yet, it is simply not to be found as a substantive, explicit right. This essay seeks to explore the origins, scope, and key possibilities of an …

International Law, Human Rights Beneficiaries, And South Africa: Some Thoughts On The Utility Of International Human Rights Law, Ronald Slye

Faculty Articles

This article uses the case of South Africa to illustrate four effects of international human rights law on human rights beneficiaries. First, international human rights law acts as a constraint on state action. Second, it is a source of norms that can be incorporated into, and thus interpreted and implemented by, domestic legal institutions. Third, it acts as a direct or indirect constraint on the actions of international governmental and non-governmental organizations. Fourth, it directly empowers individual victims. The Article also uses the South African example to provide suggestions for additional areas of research and advocacy for international human rights …