Law Commons^™

Climate Change In The Courts: A 2023 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2023.

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …

Global Climate Litigation Report: 2023 Status Review, Michael Burger, Maria Antonia Tigre

Sabin Center for Climate Change Law

This Global Climate Litigation Report: 2023 Status Review, which updates previous United Nations Environment Programme reports published in 2017 and 2020, provides an overview of the current state of climate change litigation and an update of global climate change litigation trends. It provides judges, lawyers, advocates, policymakers, researchers, environmental defenders, climate activists, human rights activists (including women’s rights activists), NGOs, businesses and the international community with an essential resource to understand the current state of global climate litigation, including descriptions of the key issues that courts have faced in the course of climate change cases.

Can Mediation Provide Remedy For Human Rights Violations? A Quest For Justice Using A Development Bank Accountability Mechanism, Natalie Bugalski, David Pred

Perspectives

This essay describes what it takes—the enormous tenacity, solidarity, courage and skill required—for communities and their civil society partners to seek recourse through the dispute resolution processes of development bank accountability mechanisms. While these mechanisms can be the crucial centerpiece of an effective strategy, their critical shortcomings mean that community advocates must often engage in Olympian advocacy gymnastics to achieve even a small measure of redress. The essay makes recommendations for strengthening community-centered accountability in development finance, so that remediation and prevention of harm become the norm, and not the rare exception.

The Inspection Panel And International Law, Daniel D. Bradlow

Perspectives

This essay argues that the creation of the Inspection Panel (Panel) was an important international legal development. It was the first time that an international organization established a mechanism that enabled those communities and individuals who claimed they had been harmed by the decisions and actions of the international organization to hold the organization accountable. The creation of the Panel also promoted the role of non-state actors in making the soft international law that is applicable to the international financing of development projects. This essay will discuss each of these developments before drawing some conclusions about the Panel and international …

The Promise Of Collaborative Problem Solving In Enhancing Iam Effectiveness, Gina Barbieri

Perspectives

This essay analyses the effectiveness of collaborative problem-solving through mediation within accountability mechanisms, and considers ways in which western mediation principles should be enhanced to ensure fair outcomes given the power imbalance at play in development disputes. It also considers whether there is any scope to use problem solving principles to address questions of compliance, arguing for consideration of a hybrid approach to bolster tools available to IAMs, and so strengthen outcomes for communities.

Just Transition Litigation In Latin America: An Initial Categorization Of Climate Litigation Cases Amid The Energy Transition, Maria Antonia Tigre, Lorena Zenteno, Marlies Hesselman, Natalia Urzola, Pedro Cisterna-Gaete, Riccardo Luporini

Sabin Center for Climate Change Law

Just transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical …

Guide On Multisectional Responses For The Protection Of Migrants, Refugees, And Internally Displaced Persons During And After The Covid-19 Pandemic, Diego Rodriguez-Pinzon, Claudia Martin

Reports

The Guide on Multisectoral Responses for the Protection of Migrants, Refugees, and Internally Displaced Persons during and after the COVID19 pandemic is an initiative of the Department of Social Inclusion of the Secretariat for Access to Rights and Equity of the Organization of American States (OAS) that offers a situational analysis and promotes a dialogue on proposals to address the particular needs of migrants, refugees, and internally displaced persons in the face of the emergency generated by COVID-19. It also seeks to define proposals with a post-pandemic perspective that provide multisectoral responses to address the needs of vulnerable populations.

This …

Examining The Social Security Tribunal’S Navigator Service: Access To Administrative Justice For Marginalized Communities, Laverne Jacobs, Sule Tomkinson

Law Publications

An accessible MS Word version of this document is available for download at the bottom of this screen under "Additional files."

This report provides the findings, analysis and recommendations of a research study conducted on the federal Social Security Tribunal’s Navigator Service (SST Navigator Service). The SST Navigator Service was established in 2019 for tribunal users without a professional representative. The study examines the use of the Navigator Service for Canada Pension Plan–Disability (CPP–Disability) appeals heard by the Income Security - General Division of the Social Security Tribunal.

This research study focuses on access to administrative justice on the …

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

Publications

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Disaggregating Corporate Liability: Japanese Multinationals And World War Ii, Timothy Webster

Faculty Scholarship

The past two decades have witnessed unprecedented attention to corporate legal liability for human rights abuses. Yet the supporting jurisprudence is relatively thin. Scholars generally agree that corporations can incur legal liability for serious violations of international human rights law. But courts find any number of ways to avoid such a result. This Article finds qualified support for an emergent norm of corporate civil liability from recent litigation in Japan. Specifically, the transnational war reparations litigation of the past three decades has yielded a consistent jurisprudence of qualified liability. Courts detail the abuses committed by Japan's largest multinational corporations, and …

Inaccessible Apexes: Comparing Access To Regional Human Rights Courts And Commissions In Europe, The Americas, And Africa Symposium: Comparing Regional Human Rights Regimes, Claudia Martin, Francoise Hampson, Frans Vilijoen

Articles in Law Reviews & Other Academic Journals

The three well-established regional human rights systems (in Europe, the Americas, and Africa) aim to provide access to individuals to a decision and remedy based on the violation of human rights in the founding treaties. In this article, the notion of the "dispute pyramid," developed in sociolegal studies, generally, is adjusted to describe and help us better understand regional access. Access differs considerably across the three systems, and its major stumbling blocks present themselves at different stages. In the European system, most cases are dismissed at the admissibility phase. In the Inter-American system, most cases are weeded out at the …

The Elusive Promise Of Equal Opportunity And Women’S Empowerment Through Temporary Labor Migration Programs: Lessons In Systemic Discrimination From The United States, Sarah Paoletti

All Faculty Scholarship

Women comprise approximately half of all migrants across the world, and similarly account for nearly half of all of labor migration. But equality in numbers belies the systemic discrimination women confront in accessing employment opportunities through labor migration programs, as well as the experiences of women within those programs. Migration – and specifically labor migration – is not a gender-neutral phenomenon. The International Labor Organization (ILO) has expressed concern that as feminization of migration increases, women migrants will be increasingly vulnerable to “discrimination, exploitation and abuse… because of hardened attitudes towards migrants in general and because gender-based attitudes and perceptions …

Making Laws, Breaking Silence: Case Studies From The Field, Rangita De Silva De Alwis

All Faculty Scholarship

The Sustainable Development Goals seek to change the history of the 21st century, addressing key challenges such as poverty, inequality, and violence against women and girls. The inalienable rights of gender equality and empowerment of women and girls addressed in Goal 5 are a pre-condition for this. Despite decades of struggle by women’s movements and reformist agendas, much still needs to be done to address de facto and de jure discrimination against women. At a time of enormous change for women, these essays from around the world are a critical analysis of the role of law in regulating and shaping …

When Law Is Complicit In Gender Bias: Ending De Jure Discrimination Against Women As An Important Target Of Sustainable Development Goal 5, Rangita De Silva De Alwis

All Faculty Scholarship

Ending all forms of discrimination against women and girls is not only a basic human right, but also crucial to accelerating sustainable development. The very first target of Goal 5. 1.1 calls to end all forms of discrimination against all women and girls everywhere and the indicator for the goal is: “Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex”. In many countries around the world the legal frameworks themselves allow for both direct (de jure) and indirect (de facto) discrimination against women. This essay identifies some areas …

Academy On Human Rights And Humanitarian Law Articles And Essays On Extractive Industries And Human Rights: Introduction, Claudia Martin, Diego Rodriguez-Pnzon

Articles in Law Reviews & Other Academic Journals

We are delighted to present this year's publication of the Academy on Human Rights and Humanitarian Law, which includes the three best essays in English and in Spanish recognized in the 2016 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics and areas of the world. We hope these participants are able to use their articles as mechanisms for change.

Session On "Geoblocking Tools And The Law" At Law, Borders, And Speech Conference At Stanford Law School, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies.

A video of the session is available here. Additionally, Professor Trimble's presentation is available here.

Slides: The Nsw Aboriginal Land Council (Nswalc) And Aboriginal Land Rights In Nsw, New South Wales Aboriginal Land Council

Indigenous Water Justice Symposium (June 6)

Presenter: Phil Duncan, Gomeroi Nation, New South Wales Aboriginal Land Council

19 slides

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

Sleep: A Human Rights Issue, Clark J. Lee

Homeland Security Publications

Recognition of sleep as a human rights issue by governmental and legal entities (as illustrated by recent legal cases in the United States and India) raises the profile of sleep health as a societal concern. Although this recognition may not lead to immediate public policy changes, it infuses the public discourse about the importance of sleep health with loftier ideals about what it means to be human. Such recognition also elevates the work of sleep researchers and practitioners from serving the altruistic purpose of improving human health at the individual and population levels to serving the higher altruistic purpose of …

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International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …

Migrant Workers' Access To Justice At Home: Nepal, Sarah Paoletti, Eleanor Taylor-Nicholson, Bandita Sijapati, Bassina Farbenblum

All Faculty Scholarship

Nepal’s citizens engage in foreign employment at the highest per capita rate of any other country in Asia, and their remittances account for 25 percent of the country’s GDP. The Middle East is now the most popular destination for Nepalis--nearly 700,000 were working in the Middle East in 2011 on temporary labor contracts. For some Nepalis, working abroad provides much-needed household wealth. For others, their contributions to Nepal come at great personal cost. Migrant workers in the Gulf, for example, routinely report wage theft, lack of time off and unsafe and unhealthy working conditions. Some migrant workers report psychological and …

Constitutional Provisions Making Sharia “A” Or “The” Chief Source Of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, Clark B. Lombardi

Articles

The constitutions of many Arab countries provide that Islamic law ("shari'a") is a "source" of national law. Indeed, some make shari'a norms "a chief source," of state law. Other stronger provisions even declare them to be "the chief source" or "the only source" of legislation. There has been surprisingly little historical scholarship about these clauses, either in Arabic or in Western languages. There has also been almost no systematic comparative scholarship looking at the way that these clauses have been interpreted in different countries. In both Western scholarship and in popular Arab discourse one finds considerable confusion about where these …

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.

Overview And Operation Of U.S. Financial Sanctions, Including The Example Of Iran, Barry E. Carter, Ryan Farha

Georgetown Law Faculty Publications and Other Works

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.

In spite of …

Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth Clark

Faculty Scholarship

Religious freedom, among other human rights, has increasingly been restricted in Russia and Central Asia. Recent empirical research has shown that increased governmental regulation of religion causes increased social hostilities over religion and has shown the connections between religious freedom and numerous other civil rights and social goods. The U.S. government has particularly recognized the importance of religious freedom in Russia, mandating significant restrictions on aid based on the Russian interpretation of restrictive religion legislation passed in 1997. Since that time, however, virtually no attention has been given to draft legislation in this area in Russia and common trends seen …

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

Scholarly Works

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Theater Of International Justice, Jessie Allen

Articles

In this essay I defend international human rights tribunals against the charge that they are not “real” courts (with sovereign force behind them) by considering the proceedings in these courts as a kind of theatrical performance. Looking at human rights courts as theater might at first seem to validate the view that they produce only an illusory “show” of justice. To the contrary, I argue that self-consciously theatrical performances are what give these courts the potential to enact real justice. I do not mean only that human rights tribunals’ dramatic public hearings make injustice visible and bring together a community …