Law Commons^™

The Ideology Of Human Rights, Makau Wa Mutua

Makau Mutua

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 …

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

Makau Mutua

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 …

Human Rights International Ngos: A Critical Evaluation, Makau Mutua

Makau Mutua

Published as Chapter 7 in NGOs and Human Rights: Promise and Performance, Claude E. Welch, Jr., ed.

The Human rights movement can be seen in a variety of guises. It can be seen as a movement for international justice or as a cultural project for “civilizing savage” cultures. In this chapter, I discuss a part of that movement as a crusade for a political project. International nongovernmental human rights organizations (INGOs), the small and elite collection of human rights groups based in the most powerful cultural and political capitals of the West, have arguably been the most influential component of …

African Human Rights Organizations: Questions Of Context And Legitimacy, Makau Mutua

Makau Mutua

Published as Chapter 13 in Human Rights, the Rule of Law, and Development in Africa, Paul Tiyambe Zeleza & Philip J. McConnaughay, eds. The human rights movement is largely the product of the horrors of World War II. The development of its normative content and structure is the direct result of the abominations committed by the Third Reich during that war. Drawing on the Western liberal tradition, the human rights movement arose primarily to control and contain state action against the individual. It is ironic that it was the victors of the war, most of whom held colonies in Africa, …

A Critique Of Rights In Transitional Justice: The African Experience, Makau W. Mutua

Makau Mutua

Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were …

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

Tara Melish

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 …

Protecting Economic, Social And Cultural Rights In The Inter-American Human Rights System: A Manual On Presenting Claims, Tara J. Melish

Tara Melish

This book offers human rights practitioners and scholars a lens into strategies and arguments for the protection of economic, social and cultural rights before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, particularly through the regional system's individual petitions process. It systematically compiles the regional bodies' major statements on social rights from the 1960s through 1999, describes the system's procedures, and offers strategic pathways and arguments for finding social rights protections solidly grounded in each of the regional system's major human rights instruments. It also offers a model petition and provides strategic advice on framing …

An Eye Toward Effective Enforcement: A Technical-Comparative Approach To The Drafting Negotiations, Tara J. Melish

Tara Melish

Published as Chapter 5 in Human Rights and Disability Advocacy, Maya Sabatello & Marianne Schulze, eds.

The unprecedented level of civil society participation that took place in the drafting of the U.N. Convention on the Rights of Persons with Disabilities (CRPD) constitutes a major key to its success -- laying a solid foundation for the much longer and harder process of implementation ahead. This piece addresses how one civil society organization -- Disability Rights International (DRI) -- approached the negotiation process. Part I explains the strategic approach DRI adopted, highlighting its methodology, the guiding principles it embraced, and the resulting …

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

Tara Melish

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, …

Beyond Westphalia: Competitive Legalization In Emerging Transnational Regulatory Systems, Errol E. Meidinger

Errol Meidinger

Published as Chapter 7 in Law and Legalization in Transnational Relations, Christian Brütsch & Dirk Lehmkuhl, eds.

This paper analyzes several emerging transnational regulatory systems that engage, but are not centered on state legal systems. Driven primarily by civil society organizations, the new regulatory systems use conventional technical standard setting and certification techniques to establish market-leveraged, social and environmental regulatory programs. These programs resemble state regulatory programs in many important respects, and are increasingly legalized. Individual sectors generally have multiple regulatory programs that compete with, but also mimic and reinforce each other. While forestry is the most developed example, similar …

Group Rights: A Defense, David Ingram

David Ingram

Human rights belong to individuals in virtue of their common humanity. Yet it is an important question whether human rights entail or comport with the possession of what I call group-specific rights (sometimes referred to as collective rights), or rights that individuals possess only because they belong to a particular group. The Universal Declaration of Human Rights (UDHR) says they do. Article 15 asserts the right to nationality, or citizenship. Unless one believes that the only citizenship compatible with a universal human rights regime is cosmopolitan citizenship in a world state – a conception of citizenship that is not countenanced …

The Information Regulation Of Business Actors, Kishanthi Parella

Kish Parella

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy …

Critical Race Theory And International Law: Convergence And Divergence, Ruth Gordon

Ruth Gordon

No abstract provided.

Patriots And Terrorists: Reconciling Human Rights With World Order, Nicholas N. Kittrie

Nicholas Kittrie

No abstract provided.

Global Justice In The Anthropocene, Carmen G. Gonzalez

Carmen G. Gonzalez

Introduction: The Enduring Power Of Collective Rights, In Labor Law Stories, Catherine L. Fisk, Laura J. Cooper

Catherine Fisk

No abstract provided.

Policing Rape Complainants: When Reporting Rape Becomes A Crime, Lisa Avalos

Lisa Avalos

Professor Breaks Ground With Journal On Sexual Violence And Exploitation, Joseph Essig, Donna M. Hughes Dr.

Donna M. Hughes

New Uri Journal Explores Sexual Exploitation, G. Wayne Miller, Donna M. Hughes Dr.

Donna M. Hughes

Uri Professor Launches Online Journal About Sexual Exploitation, Violence, Slavery, Donna M. Hughes Dr.

Donna M. Hughes

'Listen To What You Say': Rwanda’S Postgenocide Language Policies, Lynne Tirrell

Lynne Tirrell

Freedom of expression is considered a basic human right, and yet most countries have restrictions on speech they deem harmful. Following the genocide of the Tutsi, Rwanda passed a constitution (2003) and laws against hate speech and other forms of divisionist language (2008, 2013). Understanding how language shaped “recognition harms” that both constitute and fuel genocide also helps account for political decisions to limit “divisionist” discourse. When we speak, we make expressive commitments, which are commitments to the viability and value of ways of speaking. This article explores reasons a society would decide to say, “We don’t talk that way …

France Bans The Veil: What French Republicanism Has To Say About It, Stéphane Mechoulan

Stéphane Mechoulan

International Environmental Law, Environmental Justice, And The Global South, Carmen G. Gonzalez, Sumudu Atapattu

Carmen G. Gonzalez

International Environmental Law, Environmental Justice, And The Global South, Carmen G. Gonzalez, Sumudu Atapattu

Carmen G. Gonzalez

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez

Environmental Racism, American Exceptionalism, And Cold War Human Rights, Carmen G. Gonzalez

Carmen G. Gonzalez