Law Commons^™

La Maraton De Cayma, Ramiro De Valdivia Cano

Ramiro De Valdivia Cano

LA MARATON DE CAYMA

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 …

El R.P. Thomas M. Schelble S.M. (1917 – 2006), Ramiro De Valdivia Cano

Ramiro De Valdivia Cano

EL R.P. THOMAS M. SCHELBLE S.M. (1917 – 2006)

Anthropology, Human Rights, And Legal Knowledge: Culture In The Iron Cage, Annelise Riles

Annelise Riles

In this article, I draw on ethnography in the particular zone of engagement between anthropologists, on the one hand, and human rights lawyers who are skeptical of the human rights regime, on the other hand. I argue that many of the problems anthropologists encounter with the appropriation and marginalization of anthropology's analytical tools can be understood in terms of the legal character of human rights. In particular, discursive engagement between anthropology and human rights is animated by the pervasive instrumentalism of legal knowledge. I contend that both anthropologists who seek to describe the culture of human rights and lawyers who …

Introducing Discipline: Anthropology And Human Rights Administrations, Iris Jean-Klein, Annelise Riles

Annelise Riles

Anthropologists engage human rights administrations with an implicit promise that our discipline has something unique to offer. The articles in this special issue turn questions about relevance and care so often heard in the context of debates about human rights outside in. They focus not on how anthropology can contribute to human rights activities, but on what anthropological encounters with human rights contribute to the development of our discipline. They ask, how exactly do we render the subject relevant to anthropology? Reflecting on some ways anthropologists in this field have dispensed care for their subjects, the authors highlight two modalities …

Rights Inside Out: The Case Of The Women's Human Rights Campaign, Annelise Riles

Annelise Riles

This essay traces the relationship between activists and academics involved in the campaign for “women’s rights as human rights” as a case study of the relationship between different classes of what I call “knowledge professionals” self-consciously acting in a transnational domain. The puzzle that animates this essay is the following: how was it that at the very moment at which a critique of “rights” and a reimagination of rights as “rights talk” proved to be such fertile ground for academic scholarship did the same “rights” prove to be an equally fertile ground for activist networking and lobbying activities? The paper …

Imagine A World Without Hunger: The Hurdles Of Global Justice, Muna B. Ndulo

Muna B Ndulo

No abstract provided.

Targeting And The Concept Of Intent, Jens David Ohlin

Jens David Ohlin

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …

Applying The Death Penalty To Crimes Of Genocide, Jens David Ohlin

Jens David Ohlin

No abstract provided.

Is Jus In Bello In Crisis?, Jens Ohlin

Jens David Ohlin

It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following essay, an introduction to the Drone Wars symposium of the Journal, catalogues today’s most pressing disputes regarding international humanitarian law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law in asymmetrical conflicts; (iii) the targeting of suspected terrorists under concept- or status-based classifications …

Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin

Jens David Ohlin

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide …

Attempt, Conspiracy, And Incitement To Commit Genocide, Jens Ohlin

Jens David Ohlin

In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a …

The Duty To Capture, Jens David Ohlin

Jens David Ohlin

The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and …

Is The Concept Of The Person Necessary For Human Rights?, Jens David Ohlin

Jens David Ohlin

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note analyzes the evidence and argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. This suggests that it is …

High Court Of Australia Declines Leave To Appeal Cyc V Cobaw, Neil J. Foster

Neil J Foster

Discusses the recent decision of the High Court to refuse special leave to appeal in CYC v Cobaw, and implications of the decision for religious freedom in Australia.

Human Persons, Human Rights, And The Distributive Structure Of Global Justice, Robert C. Hockett

Robert C. Hockett

It is common for economically oriented transnational legal theorists to think and communicate mainly in maximizing terms. It is less common for them to notice that each time we speak explicitly of maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. Moreover, we effectively define ourselves and our fellow humans by reference to that which we equalize. For it is in virtue of the latter that our global welfare formulations treat us as "counting" for purposes of globally aggregating and maximizing. To analyze maximization language on the one hand, and equalization and identification language …

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Robert C. Hockett

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.” This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

Global Laws, Local Lives: Impact Of The New Regionalism On Human Rights Compliance, Stephen J. Powell, Patricia Camino Pérez

Stephen Joseph Powell

Continuation of the brisk pace of international economic growth with its necessarily increased use of natural resources—often at unsustainable levels—and its higher levels of pollution—often at the cost of citizen health—combine with the rules of the global trading system to threaten human rights to health, to freedom from forced or child labor, to non-discrimination, to a fair wage, to a healthy environment, even to democratic governance and participation in the political process. As a result, in recent years a growing number of economists begrudgingly acknowledge the incontrovertible—although presently dysfunctional—linkage between trade and human rights and the need to integrate these …

Should Or Must?: Nature Of The Obligation Of States To Use Trade Instruments For The Advancement Of Environmental, Labour, And Other Human Rights, Stephen J. Powell

Stephen Joseph Powell

This article examines whether customs, treaties, and historical facts have caused the ethical human rights obligations of economically powerful states to assume a legal quality. The author argues that the legal quality of these obligations may arise from the global harm principle of international law and human rights obligations found in treaties. As a consequence, states may be held accountable for the human rights violations of transnational corporations. Further, the author examines the possibility of pursuing claims under the U.S. Alien Tort Statute for torts committed in violation of international treaties as another avenue for enforcing human rights obligations.

Protecting Human Rights: The Approach Of The Singapore Courts, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution? This article is based on a speech delivered at an event at the Conrad Centennial Singapore on 4 December 2014 entitled The Role of the Judiciary in the Promotion and Protection of Human Rights organized by the Delegation of the European Union to Singapore to commemorate Human Rights Day.

Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, And The Denial Of Human Dignity, John F. Stinneford

John F. Stinneford

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire …

Immigration Surveillance, Anil Kalhan

Anil Kalhan

In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information …

Law And Religion In The Victorian Court Of Appeal, Neil J. Foster

Neil J Foster

Briefly notes the decision in Cobaw v CYC (2014) and suggests reason why the High Court should grant special leave to appeal.

Is Social Media A Human Right? Exploring The Scope Of Internet Rights, Brian Christopher Jones

Brian Christopher Jones

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 …

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 …

Gender Politics In Global Governance, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Prof. Hernández-Truyol reviews the book Gender Politics in Global Governance from editors Mary K. Meyer and Elisabeth Prügl. Given the emergence of multilateral institutions in this century, the mobilization of women against "male supremacy" has taken an internationalist turn; it seeks to shape "the agendas of international organizations and the normative practices of global governance." In an effort to understand and analyze this movement and its impact, the editors have compiled a volume drawing new research together exploring gender politics in global governance that is also "attentive to historical and contemporary modes of women's organizing from the local to the …

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 …