Human Rights Law Commons^™

Reinvigorating The Human Right To Technology, Haochen Sun

Michigan Journal of International Law

The right to technology is a forgotten human right. Dating back to 1948, the right was established by the Universal Declaration of Human Rights (“UDHR”) in response to the massive destruction wrought by technologically advanced weapons in the Second World War. This human right embodies one of the most profound lessons the framers of the UDHR learned from this war: Technology must benefit humanity rather than harm it.

It has been more than seventy years since the adoption of the UDHR, and technology has advanced at a rapid pace and become more important than ever in our daily lives. Yet …

International Civil Individual Responsibility And The Security Council: Building The Foundations Of A General Regime, Vincent-Joël Proulx

Michigan Journal of International Law

This Article focuses on a few tools at the disposal of the United Nations Security Council (“UNSC”) to enhance individual (read: civil) responsibility concerning nonstate terrorist actors with a view to opening other avenues of inquiry regarding other subversive nonstate actors (“NSAs”), for instance in the areas of transnational torts, human rights (“HR”) violations, and environmental damage caused by business entities. As discussed in Part V, recent developments surrounding the application of the Alien Tort Claims Act (“ATCA”) in the United States and the prospect of establishing a basis for universal civil jurisdiction further signal that no such solid basis …

The Michigan Guidelines On Refugee Freedom Of Movement

Michigan Journal of International Law

Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.

The International Right To Health Care: A Legal And Moral Defense, Michael Da Silva

Michigan Journal of International Law

In the following, I outline the case against the international right to health care and explain why recognition of such a right is still necessary. The argument is explicitly limited to international human rights law and is primarily descriptive in nature, but I go on to explain the moral reasons to accept this account. Both the positive law and moral reasoning could be used in other health rights debates, but I do not attempt to make such claims here.

The structure of my work is as follows. I first outline three problems with recognizing an international right to health care. …

Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.

Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck

Michigan Journal of International Law

This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”

The Great Power Origins Of Human Rights, Seth Mohney

Michigan Journal of International Law

For years, historians depicted the history of human rights as the inexorable triumph of universal norms. This account underestimates both the historical and contemporary uncertainty surrounding many international human rights. As even casual observers must note, the tale of human rights progress is not littered with beneficent heads of state persuaded to pursue progress by the moral charge of universal norms. Instead, this history’s primary scenes feature struggles among great powers, peoples, and movements advancing diverse interests. Recognizing the complexity of human rights history, a new generation of historians has emphasized that human rights progress is not preordained, but rather …

All Other Breaches: State Practice And The Geneva Conventions’ Nebulous Class Of Less Discussed Prohibitions, Jesse Medlong

Michigan Journal of International Law

With respect to the protections afforded by the Geneva Conventions, a great deal of ink has been spilled in recent years over the two-tiered system of tribunals employed by the United States in its prosecution of enemy combatants in the “war on terror.” Less discussed, though, is the wholly separate two-tiered system for sorting violators of the Geneva Conventions that emerges from the very text of those agreements. This stratification is a function of the Conventions’ distinction between those who commit “grave breaches” and those who merely commit “acts contrary to the provisions of the present convention” or “all other …

The Michigan Guidelines On The Exclusion Of International Criminals

Michigan Journal of International Law

With a view to promoting a shared understanding of the proper approach to Article 1(F)(a) exclusion from refugee status, we have engaged in sustained collaborative study and reflection on relevant norms and state practice. Our research was debated and refined at the Sixth Colloquium on Challenges in International Refugee Law, convened in March 2013 by the University of Michigan’s Program in Refugee and Asylum Law. These Guidelines are the product of that endeavor, and reflect the consensus of Colloquium participants on how decision makers can best ensure the application of Article 1(F)(a) in a manner that conforms to international legal …

Human Rights Legislation In The Arab World: The Case Of Human Trafficking, Mohamed Y. Mattar

Michigan Journal of International Law

In the Arab World, human rights legislation has not always enhanced human rights. In fact, many national laws have been adopted that restrict human rights. Some countries' laws regulating nongovernmental organizations (NGOs) do not allow NGOs to receive funding from foreign entities. Media laws impose various limitations on the press. Jordan is the only Arab nation to enforce a comprehensive law on combating violence against women. Jordan is also the only country that has a law on access to information. Despite these gaps in human rights legislation, many Arab countries have passed comprehensive laws to combat human trafficking since the …

An Emerging Norm - Determining The Meaning And Legal Status Of The Responsibility To Protect, Jonah Eaton

Michigan Journal of International Law

The responsibility to protect, from its recent nativity in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), is the latest round in an old debate pitting the principle of nonintervention in the internal affairs of states against allowing such intervention to prevent gross and systematic violations of human rights. Advocates for the concept see it as an important new commitment by the international community, injecting new meaning into the tragically threadbare promise to never again allow mass atrocities to occur unchallenged. ICISS offered the concept of responsibility to protect as a new way to confront …

Widening Our Lens: Incorporating Essential Perspectives In The Fight Against Human Trafficking, Jonathan Todres

Michigan Journal of International Law

In 2000, the international community formally launched the modern movement to combat human trafficking with the United Nations' adoption of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol). With the Trafficking Protocol, the international community created a new cornerstone upon which to build a global initiative to combat this modem form of slavery. As the first major international treaty on human trafficking in half a century, the Trafficking Protocol represented a significant step forward. One hundred forty-seven countries are now party to the …

Identifying And Enforcing Back-End Electoral Rights In International Human Rights Law, Katherine A. Wagner

Michigan Journal of International Law

From Kenya to Afghanistan, Ukraine, the United States, Mexico, and Iran, no region or form of government has been immune from the unsettling effects of a contested election. The story is familiar, and, these days, hardly surprising: a state holds elections, losing candidates and their supporters claim fraud, people take to the streets, diplomats and heads of state equivocate, and everyone waits for the observers' reports. It is the last chapter of this story-the resolution-that remains unfamiliar and still holds the potential to surprise. The increasing focus on and importance of the resolution of contested elections, that resolution's link to …

Fifth Colloquium On Challenges In International Refugee Law. The Michigan Guidelines On The Right To Work., Penelope Mathew

Michigan Journal of International Law

An Explanatory Note covering the Fifth Michigan Colloquium on Challenges in International Refugee Law and the Right to Work.

The Michigan Guidelines On The Right To Work

Michigan Journal of International Law

The right to work is fundamental to human dignity. It is central to survival and development of the human personality. According to the International Labour Organization (ILO), decent work "sums up the aspirations of people in their working lives-for opportunity and income; rights, voice and recognition ..." Work is interrelated, interdependent with, and indivisible from the rights to life, equality, the highest attainable standard of physical and mental health, an adequate standard of living, the right to social security and/or social assistance, freedom of movement, freedom of association, and the rights to privacy and family life, among others.

The Use Of Article 31(3)(C) Of The Vclt In The Case Law Of The Ecthr: An Effective Anti-Fragmentation Tool Or A Selective Loophole For The Reinforcement Of Human Rights Teleology?, Vassilis P. Tzevelekos

Michigan Journal of International Law

In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC's expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow …

Rational Choice, Reputation, And Human Rights Treaties, Alex Geisinger, Michael Ashley Stein

Michigan Law Review

Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows.

The Eighteenth Birthday Of The Convention Of Rights Of The Child: Achievements And Challenges, Jaap E. Doek

University of Michigan Journal of Law Reform

Although the U.N. Convention on the Rights of the Child has produced positive results in many countries, the United States remains one of the few nations that has not signed on to this treaty. This Essay will begin by describing the content of the treaty. This Essay will discuss the achievements, challenges, and solutions resulting from the treaty in the areas of child poverty, violence against children, and child labour. Given the positive results produced in other countries, this Essay will conclude with an invitation to the United States to join the Convention on the Rights of the Child.

State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway

Michigan Journal of International Law

This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …

Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster

Michigan Journal of International Law

This Article first questions the legitimacy of protection elsewhere practices. It then considers the circumstances in which the transfer of refugees might take place. It should be emphasized that the Michigan Guidelines set out the minimum requirements and constraints imposed by international law when a state wishes to implement a protection elsewhere policy. In addition, in some instances the Michigan Guidelines engage in "progressive development" of the law by suggesting safeguards that, while not strictly required by international law, should be respected in order to ensure the implementation of such policies in a way that protects and ensures the rights …

The Universal Declaration On Bioethics And Human Rights: Promoting International Discussion On The Morality Of Non-Therapeutic Research On Children, Anna Gercas

Michigan Journal of International Law

After describing the Declaration and its drafting history, this Note will summarize several international, national, and regional guidelines regarding children as research subjects. The Note then argues for a prohibition of non-therapeutic research on children and concludes that international human rights law offers the most appropriate basis for the development of regulations on human experimentation.

Of Federalism, Human Rights, And The Holland Caveat: Congressional Power To Iplement Treaties, Ana Maria Merico-Stephens

Michigan Journal of International Law

This Article explores whether the Rehnquist Court's federalism doctrine, as elaborated during this last decade, should or ought to extend to the domestication of discrete provisions of ratified human rights treaties. It explores this question by examining the International Covenant on Civil and Political Rights (Covenant) and by considering the civil remedy provision of Violence Against Women Act (VAWA) as potential implementing legislation for the equality provisions of the Covenant. In the context of this inquiry, the discussion engages federalism, as developed by the current Court, on its own terms. That is, I do not seek here to defend it …

The Reality Of Private Rights, Duties, And Participation In The International Legal Process, Jordan J. Praust

Michigan Journal of International Law

In a realistic and descriptive sense, international law is a complex and dynamic legal process profoundly interconnected with regional and domestic legal processes throughout the globe. There are no single sources or evidences of international law; no single set of participants; and no single arenas or institutional arrangements for the creation, invocation, application, change or termination of such law. Like all human law, it is full of human choice and rich in individual and group participation and inter-affectation. Awareness of this reality can have significant consequences with respect to identification of international legal norms, realistic meaning or content, remedies, and …

Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld

Michigan Journal of International Law

This Article explores the advancement of the international crime of sexual slavery, from its initial inclusion in the Rome Statute of the International Criminal Court through further development in the delineation of the ICC's Elements of Crime document. This Article begins with a detailed exploration of the negotiation process that led to the inclusion of the crime of sexual slavery in the Rome Statute. The first Section describes the decision to include both sexual slavery and enforced prostitution as crimes, as well as the debate on listing sexual slavery as a crime separate from that of enslavement. Next, the Section …

Trafficking As A Human Rights Violation: The Complex Intersection Of Legal Frameworks For Conceptualizing And Combating Trafficking, Joan Fitzpatrick

Michigan Journal of International Law

The author will focus on three legal instruments: (1) the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime (the Trafficking Protocol); (2) the Victims of Trafficking and Violence Protection Act (VTVPA), enacted by the U.S. Congress in 2000; and (3) the regulations issued in 2002 by the U.S. Department of Justice to implement the T visa for trafficking victims. The U.S. response to trafficking illustrates the difficulties faced by human rights advocates in source, transit, and destination countries to insure that anti-trafficking and other migration …

Repairing The Legacy Of Ins V. Elias-Zacarias, Shayna S. Cook

Michigan Journal of International Law

This Article examines the evolution of the nexus requirement in United States refugee law since the Elias-Zacarias decision. Part I discusses the Supreme Court's decision in Elias-Zacarias, identifying the choices the Court made among the arguments presented before it that resulted in the motive-oriented approach to nexus. This Part also delves into the Court's statement about the evidence required to demonstrate motive, concluding that the Court's treatment of the evidence before it foreshadows the confusion lower courts have demonstrated in evaluating evidence of motive. Part II looks at appellate decisions on the nexus issue since 1992, highlighting cases that …

Causation In Context: Interpreting The Nexus Clause In The Refugee Convention, Michelle Foster

Michigan Journal of International Law

The aim of this Article is to explore current approaches to identifying and applying the causation test inherent in the "for reasons of" clause and to attempt to devise a sui generis test appropriate to the unique aims and objects of the Convention. Part I begins by reviewing both the principles governing the causation analysis and their methods of application in different jurisdictions. Part II then proceeds to review the considerations that might inform the development of a causation standard in refugee law, including guidance that might be obtained from other areas of law, against the background of the need …

Persecution In The Fog Of War: The House Of Lords' Decision In Adan, Michael Kagan, William P. Johnson

Michigan Journal of International Law

In this Article, we argue that the House of Lords' reasoning in Adan was seriously flawed. The House of Lords correctly recognized that evidence that minorities face a heightened risk of being persecuted can be sufficient to show a nexus to a Convention ground. Yet it erred when it went on to hold that only differentially at-risk individuals or groups can benefit from refugee status. If a person's risk of being persecuted is causally linked to his or her race, religion, nationality, membership of a particular social group, or political opinion, the nexus requirement is satisfied irrespective of whether the …

Dueling Fates: Should The International Legal Regine Accept A Collective Or Individual Pradigm To Protect Women's Rights?, Michigan Journal Of International Law

Michigan Journal of International Law

Transcript for Symposium held at the University of Michigan Law School on Saturday, April 6, 2002.

The Right To Return Under International Law Following Mass Dislocation: The Bosnia Precedent?, Eric Rosand

Michigan Journal of International Law

On the night of May 2, 1997, some twenty-five abandoned Serb houses were set on fire in the Croat-controlled municipality of Drvar, part of the Muslim-Croat Federation of Bosnia and Herzegovina. It was clear from all the circumstances that Croats organized the arson of houses in Drvar to obstruct the return of the original Serb residents to the area. Croat authorities then made a concerted effort to resettle displaced Croats in Drvar in order to solidify a stretch of "ethnically-pure" territory adjacent to the Republic of Croatia. These displaced Bosnian Serbs are just a few of the estimated 2.3 million …