Human Rights Law Commons^™

Rebraiding Frayed Sweetgrass For Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues As International Atrocity Crimes, Alyssa Couchie

Michigan Journal of International Law

The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing …

Relentless Atrocities: The Persecution Of Hazaras, Mehdi J. Hakimi

Michigan Journal of International Law

As one of the main ethnic groups in Afghanistan, Hazaras are Farsi-speaking and mostly Shi’a Muslims in a predominantly Sunni Muslim country. They are also distinguishable by their Asiatic appearance. Throughout Afghanistan’s history, Hazaras have suffered considerably under different regimes, enduring recurring massacres, enslavement, and forced displacement. Despite Afghanistan’s accession to the Rome Statute in 2003, the plight of Hazaras has not improved. Indeed, the assaults on Hazaras have only intensified in recent years, impacting virtually every aspect of their lives.

This article argues that the recent and ongoing attacks against Hazaras constitute a crime against humanity. In particular, I …

Justice Without Power: Yemen And The Global Legal System, Amulya Vadapalli

Michigan Law Review

The war in Yemen has remained the world’s worst humanitarian crisis since 2015, and yet it is shockingly invisible. The global legal system fails to offer a clear avenue through which the Yemeni people can hold the state actors responsible for their harm accountable. This Note analyzes international legal mechanisms for vindicating war crimes and human rights abuses perpetrated in Yemen. Through the lens of Yemen’s humanitarian crisis, it highlights gaps in the global legal structure, proposes alternative accountability processes, and uses a variety of sources—including interviews with practitioners and Arabic language legal scholarship—to explicate a victim-centered transitional justice process …

Shedding New Light On Multinational Corporations And Human Rights: Promises And Limits Of “Blockchainizing” The Global Supply Chain, Chang-Hsien Tsai, Ching-Fu Lin

Michigan Journal of International Law

Over the last few decades, advances in transportation and production technology, in conjunction with economic globalization and the emergence of multinational corporations, have consolidated fragmented production processes into long and complex supply chains across jurisdictions. While there are benefits to such global supply chains (“GSCs”), the prevalence of human rights violations attributable to information asymmetry, as well as rule of law gaps between different jurisdictions, has been a constant challenge. Modern slavery, child abuse, harsh working conditions, low wages, and other problems have reoccurred in the factories of upstream suppliers in the global South and have been systemically ignored by …

Let Them Eat Rights: Re-Framing The Food Insecurity Problem Using A Rights-Based Approach, Benedict Sheehy, Ying Chen

Michigan Journal of International Law

Food insecurity is a global issue. Large parts of the global population are unable to feed themselves adequately with hundreds of millions of people suffering from hunger and malnutrition. This problem is recognized widely by governments, industry and civil society and is usually understood using one of three approaches or frames: a basic production problem solved by technology and increased industrialization of agricultural, and an economic problem solved by economic growth and a commercial problem resolved by expanding markets. Much of the discussion and policy advice is based on the premise that hunger is primarily a wealth issue and, that …

The Hague Rules On Third-Party Joinder: A Revised Framework, Emma Macfarlane

Michigan Business & Entrepreneurial Law Review

This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights …

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.”

Thick Law, Thin Justice, Patrick Macklem

Michigan Law Review

Review of The Thin Justice of International Law: A Moral Reckoning of the Law of Nations by Steven R. Ratner.

Gender Discrimination And Statelessness In The Gulf Cooperation Council States, Betsy L. Fisher

Michigan Journal of Gender & Law

Using the Gulf Cooperation Council countries as a case study, this Article outlines the ways in which gender and birth status discrimination create new cases of statelessness. These occur when women are legally unable to convey their nationality to their children. This Article studies gender and birth status discrimination in nationality laws and in civil registration, family, and criminal law in each GCC state: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. Ending statelessness will require these states to end discrimination against women and non-marital children in all of its forms in law and practice.

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

Michigan Journal of International Law

Refugee status at international law requires more than demonstration of a risk of being persecuted. Unless the risk faced by an applicant is causally connected to one of five specified attributes – his or her race, religion, nationality, membership of a particular social group, or political opinion – the claim to be a refugee must fail. Because the drafters of the Refugee Convention believed that the world’s asylum capacity was insufficient to accommodate all those at risk of being persecuted, they opted to confine the class of refugees to persons whose predicament stems from who they are, or what they …

Refugees Without Borders: Legal Implications Of The Refugee Crisis In The Schengen Zone, Bridget Carr

Michigan Journal of International Law

This Note will first examine current practices utilized by Member States and their strategic partners outside the Zone to manage flows of third-country nationals from the Middle East and North Africa. It will then explore how these practices are not compatible with principles of protection from degrading and inhuman treatment, non-refoulement, and non-discrimination as codified in the Schengen Borders Code, European Convention on Human Rights, and the Refugee Convention, among others. Finally, this Note will propose targeted reforms for the Schengen Zone’s internal and external border management aimed at protecting the human rights of displaced persons and modifying incentive structures …

The Michigan Guidelines On Risk For Reasons Of Political Opinion

Michigan Journal of International Law

The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country

Toward A New Framework For Understanding Political Opinion, Catherine Dauvergne

Michigan Journal of International Law

This paper was written to frame the work of the Seventh Colloquium on Challenges in International Refugee Law, held at the University of Michigan Faculty of Law, on March 27–29, 2015. To some extent, therefore, it has already served its purpose. It is somewhat tempting in the wake of the Colloquium to completely reconstruct the paper in light of the conversations and conclusions of that event. Such reconstruction, however, would be misleading. Instead, I have chosen to publish the paper in a form that is very similar to its earlier iteration, with a few corrections, clarifications, and explanatory notes about …

After Atrocity: Optimizing Un Action Toward Accountability For Human Rights Abuses, Steven R. Ratner

Michigan Journal of International Law

It is a great honor for me to be here to deliver the John Humphrey Lecture. Humphrey led one of those lives within the UN that shaped what the organization has become today—as one of the first generation of UN civil servants, he was to human rights what Ralph Bunche was to peacekeeping, or Brian Urquhart to UN mediation. To read his diaries, so beautifully edited by John Hobbins, is to see a world that has in many ways vanished, a nearly entirely male club, mostly of Westerners, that hammered out new treaties and mechanisms over fine wine and cigars …

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Inciting Genocide With Words, Richard A. Wilson

Michigan Journal of International Law

During the 1994 genocide in Rwanda, observers emphasized the role of media propaganda in inciting Rwandan Hutus to attack the Tutsi minority group, with one claiming that the primary tools of genocide were “the radio and the machete.” As a steady stream of commentators referred to “radio genocide” and “death by radio” and “the soundtrack to genocide,” a widespread consensus emerged that key responsibility for the genocide lay with the Rwandan media. Mathias Ruzindana, prosecution expert witness at the ICTR, supports this notion, writing, “In the case of the 1994 genocide in Rwanda, the effect of language was lethal . …

The Three C'S Of Jurisdiction Over Human Rights Claims In U.S. Courts, Chimène I. Keitner

Michigan Law Review First Impressions

The legal aftermath of the Holocaust continues to unfold in U.S. courts. Most recently, the Seventh Circuit dismissed claims against the Hungarian national railway and Hungarian national bank for World War II-era crimes against Hungarian Jews on the grounds that the plaintiffs had not exhausted available local remedies in Hungary or provided a “legally compelling” reason for not doing so. More broadly, heated debates about the role of U.S. courts in enforcing international human rights law have not abated since the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., which restricted but did not eliminate federal …

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 …

Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy

Michigan Journal of Gender & Law

Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis …