Law Commons^™

Justice Brennan And The Foundations Of Human Rights Federalism, James A. Gardner

Journal Articles

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights …

Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis

Journal Articles

Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious …

Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish

Journal Articles

This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty law.

Standard Setting In Human Rights: Critique And Prognosis, Makau Wa Mutua

Journal Articles

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …

The U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish

Journal Articles

On December 13, 2006, the United Nations General Assembly unanimously adopted the Convention on the Rights of Persons with Disabilities. The Convention is historic and path-breaking on several levels, both in protection terms for the world's 650 million persons with disabilities who may now draw upon its provisions in defense of their internationally-protected rights, and in relation to the unprecedented level of civil society input and engagement in the negotiation process. This sustained and constructive engagement has given rise to a dynamic process of dialogue, cooperation, and mutual trust that will fuel monitoring and implementation work, at national and international …

Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish

Journal Articles

An important debate is currently underway in the inter-American human rights system involving the proper approach litigators, adjudicators, and advocates should take to supranational litigation of economic, social and cultural rights. Centered on questions of jurisdiction and the proper characterization and limits of justiciability, its resolution has tremendous implications for the tools available to on-the-ground advocates, their real-world effectiveness and sustainability in adjudicatory and advocacy contexts alike, and the rationalization of the system's developing jurisprudence over the long-term.

This article book-ends a trilogy of pieces appearing in the NYU Journal of International Law and Politics by two sets of authors, …

Rethinking The "Less As More" Thesis: Supranational Litigation Of Economic, Social And Cultural Rights In The Americas, Tara J. Melish

Journal Articles

In their 2005 law review article Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, James Cavallaro and Emily Schaffer argue for a "rethinking" of strategies to advance economic, social and cultural rights in the Americas. They posit that to achieve higher rates of real-world protection for such rights, social rights advocates should do two things: first, bring less litigation and, second, frame any marginal litigation that is pursued as violations of classic civil and political rights. According to the authors, this recommended course will increase the "legitimacy" of the litigation and lead to higher …

Looking Past The Human Rights Committee: An Argument For De-Marginalizing Enforcement, Makau Wa Mutua

Journal Articles

No abstract provided.

The Ideology Of Human Rights, Makau Wa Mutua

Journal Articles

This piece argues that although human rights is an ideology although it presents itself as non-ideological, non-partisan, and universal. It contends that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the construction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies. Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and the universality of human …

The Case For Self-Determination, Guyora Binder

Journal Articles

This lecture offers an analysis and defense of the right of self-determination of peoples. The argument begins by analyzing self-determination into its universalist and nationalist components. The universalist component of self-determination is satisfied wherever institutions of government are majoritarian. The nationalist component of self-determination is satisfied to the extent that institutions of government are identified with particular communities. The universalist compoent is now widely recognized as an authoritative principle of international law. The nationalist component remains controversial, particularly outside of the particular context of the dismantling of European colonial empires. The lecture proceeds to defend the nationalist component by attacking …