Human Rights Law Commons^™

The Human Rights Remedy Gap In Isds – The Potential Of The Hague Rules On Business And Human Rights Arbitration, Diane A. Desierto, Anne Van Aaken, Steven Ratner, Giorgia Sangiuolo, Martijn Scheltema, Katerina Yiannibas

Faculty Lectures and Presentations

The tensions between the protection of human rights and States’ obligations towards foreign investors has been the subject of extensive debates among States, civil society actors, business, and international organizations. The Hague Rules on Business and Human Rights Arbitration represent a recent effort to provide an avenue for resolving claims concerning human rights violations connected to business activities, including investment. These Rules may be linked to or incorporated in national investment laws, state contracts, or International Investment Agreements (IIAs). The Hague Rules aim to fill a currently existing gap in (access to) remedies for rightsholders and help both investors and …

Ending The Excessive Use Of Force At Home And Abroad, Mary Ellen O'Connell

Journal Articles

In the mid-1980s the American Society of International Law (ASIL) launched an initiative to engage more women and minority members in the Society and international law more generally.' Professor Henry Richardson was there, encouraging all of the new aspirants, including me. He is still doing that, and this essay in his honor is an expression of gratitude, admiration, and affection. It develops themes Hank and I have both pursued for decades: human rights, peace and non-violence, and the promotion of international law and ASIL.

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

The Anglo-Latin Divide And The Future Of The Inter-American System Of Human Rights, Paolo G. Carozza

Journal Articles

A former President of the Inter-American Commission on Human Rights, Paolo Carozza draws on his personal experience to identify and propose solutions for a key flaw in the Inter-American Human Rights System: the division between English-language member states and states with Latin-based languages. Terming this division "The Anglo-Latin Divide," Carozza traces the division not only to linguistic difference, but also to differences in legal traditions. He explains how the differences between Anglo tradition of common law and the Latin tradition of civil law manifest in both substantive and procedural divides within the Inter-American Human Rights system, including in sensitive areas …

Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Douglass Cassell

Journal Articles

If American citizens or corporations commit gross violations of human rights against foreign victims on foreign shores, can the victims sue the Americans for damages in United States federal courts? Until recently the answer was clearly yes. However, following the diverse opinions in the Supreme Court’s 2013 ruling in Kiobel v. Royal Dutch Petroleum Co., the question has divided lower courts to date.

This Article argues that, as a matter of both domestic and international law, and under both the majority and minority rationales in Kiobel, federal courts can and should hear tort suits against American nationals for human rights …

The Prohibition Of The Use Of Force, Mary O'Connell

Book Chapters

From the Publisher
Chapter 4
This chapter concerns the central international legal rule against violence: Article 2(4) of the United Nations Charter. Article 2(4) generally prohibits the use of force by states. It is a treaty rule that is also widely regarded as a rule of customary international law and, indeed, in certain respects, as a peremptory rule or rule of jus cogens. Article 2(4) was adopted along with the rest of the Charter in 1945 after the catastrophe of the Second World War in which an estimated 60 million people died. Despite its relatively recent adoption, Article 2(4) …

Ngo Standing And Influence In Regional Human Rights Courts And Commissions, Lloyd Hitoshi Mayer

Journal Articles

This article explores the extent to which nongovernmental organizations (NGOs) have standing to bring claims in the European, Inter-American, and African human rights enforcement systems, examines the degree to which NGOs in fact bring such cases, and analyzes the ramifications of NGO involvement in these systems. Part I of this article considers how NGOs can be involved in the European Court of Human Rights, the Inter-American Human Rights Commission and the Inter-American Court of Human Rights, and the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. As detailed in this part, while …

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

Journal Articles

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

International Human Rights Law And Security Detention, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …

The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford

Journal Articles

For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or norm cascades), and norm internalization. As such, constructivism treats international law as a dynamic process in which norm entrepreneurs interact with state actors …

Washington's "War Against Terrorism" And Human Rights: The View From Abroad, Douglass Cassel

Journal Articles

"When it comes to human rights, there is no greater leader than the United States of America," White House spokesman Scott McClellan has said.

The view from abroad is less kind. A recent resolution of the European Parliament, for example, "condemns" our government's treatment of prisoners at Guantanamo. It urges Washington to guarantee all prisoners "minimum human rights in accordance with international human rights law and fair trial procedures" and to "immediately clarify the situation of the prisoners." European objections run so deep that a New York Times account finds a "high level of anger in Europe at reports that …

When Is A War Not A War? The Myth Of The Global War On Terror, Mary Ellen O'Connell

Journal Articles

It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush's war on terror finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and …

Arbitrating Human Rights, Roger P. Alford

Journal Articles

The article addresses the vexing problem of holding corporations liable for assisting in the sovereign abuse of human rights. Currently domestic human rights litigation against corporations appears to be a proxy fight in which the accomplice is pursued while the principal evades punishment. Typically the principal malfeasor - the sovereign - is immune from suit because of foreign sovereign immunity. But corporations can be found liable for aiding and abetting those violations. This article suggests a solution to this problem, drawing on principles from contract law and arbitration. If a corporation is found liable for aiding and abetting sovereign abuse, …

Introduction And Postscript: Partial Progress On Un Reform, Douglass Cassel

Journal Articles

The conference on Reforming the United Nations: The use of force to safeguard international security and human rights, co-sponsored by Northwestern University School of Law and the Katholieke Universiteit Leuven Faculty of Law as their Fourth Annual Transatlantic Dialogue, was held in January 2005.

Its timing was propitious. It was held one month after publication of the report of the prestigious and geographically diverse High-Level Panel on Threats, Challenges, and Change, appointed by UN Secretary-General Kofi Annan. Among many other proposals to reform the UN, the High-Level Panel recommended expansion of the Security Council, new guidelines for use of force …

"My Friend Is A Stranger": The Death Penalty And The Global Ius Commune Of Human Rights, Paolo G. Carozza

Journal Articles

This article examines the judicial use of foreign jurisprudence in human rights adjudication, using as data a set of court decisions regarding the death penalty from over a dozen different tribunals in different parts of the world. The global human rights norms and judicial discourse on human rights in these cases can be understood and explained by comparing the contemporary practices to the medieval ius commune. The modern ius commune of human rights has three distinct characteristics which it shares with the historical example to which it is analogized: it is broadly transnational in scope and application; it is grounded …

Is There A New World Court?, Douglass Cassel

Journal Articles

I am pleased to introduce our conference on Human Rights and the Law of War: New Roles for the World Court? Why this conference? And why now? Our conference is prompted by two contrasting phenomena: The caseload of the ICJ seems to have been transformed in the post-Cold War period. The World Court is now busier than ever. It has more cases, increasingly involving questions of human rights or ongoing armed conflict. Yet these three inter-related phenomena—increased caseload, and more cases involving human rights or armed conflict—have been little analyzed or studied. Our purpose is to contribute to public and …

Subsidiarity As A Structural Principle Of International Human Rights Law, Paolo G. Carozza

Journal Articles

This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves.

Looking at …

A Framework Of Norms: International Human-Rights Law And Sovereignty, Douglass Cassel

Journal Articles

The international legal boundary between states; rights and human rights is not fixed. Long ago, the Permanent Court of International Justice - the judicial arm of the League of Nations and the precursor to the present International Court of Justice - recognized that "the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations." In recent decades international relations concerning both sovereignty and rights have developed quickly. An examination of those rights and the evolving realities of sovereignty are examined.

Does International Human Rights Law Make A Difference?, Douglass Cassel

Journal Articles

Does international human rights law make a difference? Does it protect rights in practice? The importance of these questions for rights protection is obvious: the institutions of international human rights law deserve our energetic support only to the extent they contribute meaningfully to protection of rights, or at least promise eventually to do so. Moreover, at the moment these questions have added urgency. They underlie an ongoing debate, fomented in part by this Journal, on the extent to which the United States should be prepared to cede degrees of its national sovereignty to international human rights institutions, in return for …

Lessons From The Americas: Guidelines For International Response To Amnesties For Atrocities, Douglass Cassel

Journal Articles

Amnesty guidelines modeled on international law as defined by Latin American tribunals and treaties should be adopted and used by the United Nations, the Organization of American States, and national governments involved in remedying human rights violations. The 10 guidelines are stringent and would rarely result in the granting of amnesty. They may better serve their function than treaties or customary laws be cause they are guidelines and not mandatory.