International Humanitarian Law Commons^™

The Emerging Chinese Model Of Statist Human Rights, Ryan Mitchell

American University International Law Review

Chinese Communist Party General Secretary Xi Jinping commemorated World Human Rights Day 2018, marking the 70th anniversary of the signing of the Universal Declaration of Human Rights (UDHR), by declaring that “the happy life of the people is the greatest human right.” The comment was issued as part of a message to attendees of a symposium held in Beijing to commemorate the UDHR, celebrate China’s progress in realizing its aims, and articulate an officially-sanctioned vision of future action.

"We Can't Go Back Now": How Japan's Refugee Recognition System Denies Rights And Shirks Obligations To Refugees Fleeing The 2021 Myanmar Coup D'État, Jonathan Morrisey

American University International Law Review

The February 2021 coup d’état of the democratic Myanmar government sent shockwaves through the country and across Southeast Asia. Myanmar communities abroad protested in solidarity while governments took action to protect their Myanmar residents from deportation. In Japan, the Ministry of Justice granted an Emergency Refuge Measure to thousands of Myanmar residents, permitting conditional visa extensions due to the coup. Nonetheless, some Myanmar residents in Japan sought stronger protections in the form of refugee status. Japan is a party to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees and, accordingly, provides a path to refugee recognition …

Storm Warning: New Zealand's Treatment Of "Climate Refugee" Claims As A Violation Of Internatinal Law, Isabella Zink

American University International Law Review

As some countries begin to acknowledge the increasingly strong effects of climate change, others have struggled with its slow onset of effects for decades. Coastal communities, especially island nations at or slightly above sea level, face not only threats of flooding and damaging storms, but also rising sea levels jeopardizing soil and water health. As citizens of these coastal regions face increasing difficulty accessing food, water, and medical care, the United Nations‘ (“U.N.”) scientific bodies predict there will be staggering numbers of displaced persons within the next few decades. Island nations rising two meters above sea-level face total submersion by …

Prologue, Claudio Grossman, Robert K. Goldman

American University International Law Review

We are pleased to write this prologue for the special issue of the American University International Law Review featuring the winning papers from the 2021 Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law.

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Repeating History: Russia Inflicting Crimes Against Humanity Upon The Crimean Tartars, Katerina Dee

American University International Law Review

No abstract provided.

Going Off The Rails On The Mayan Train: How Amlo’S Development Project Is On A Fast Track To Multiple Violations Of Indigenous Rights, Jared Green

American University International Law Review

No abstract provided.

Building A Lifeline: A Proposed Global Platform And Responsibility Sharing Model For The Global Compact On Refugees, Sarnata Reynolds, Juan Pablo Vacatello

The Scholar: St. Mary's Law Review on Race and Social Justice

In 2016, the leaders of 193 governments committed to more equitable and predictable sharing of responsibility for refugees as part of the New York Declaration, to be realized in the Global Compact on Refugees. To encourage debate, this paper presents the first global model to measure the capacity of governments to physically protect and financially support refugees and host communities. The model is based on a new database of indicators covering 193 countries, which assigns a fair share to each country and measures current government contributions to the protection of refugees. The model also proposes a new government-led global platform …

Legal Status Of Drones Under Loac And International Law, Vivek Sehrawat

Penn State Journal of Law & International Affairs

No abstract provided.

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

Between Light And Shadow: The International Law Against Genocide In The International Court Of Justice’S Judgement In Croatia V. Serbia (2015), Ines Gillich

Pace International Law Review

This Article identifies and critically analyzes the contributions the International Court of Justice (ICJ) made to the international law against genocide via the judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) of February 3, 2015. This Article elaborates on the concept of genocide—a term that has originally been coined after the Armenian Genocide and the Holocaust—and the protection against this “crime of crimes” under international law. The analysis section of this Article refers to the historical and procedural context of the dispute between Croatia and Serbia in the case, …

Is The International Court Of Justice Worth The Effort?, Joseph L. Daly

Akron Law Review

Throughout history most peacemaking has been a response to a particular crisis - efforts of two countries to solve a dispute by treaty or to negotiate the end of a war. But as the instruments of war have become more and more horrible, as wars have come to take an ever increasing toll on civilian populations, world leaders have tried to establish a structure for peace, a permanent way of avoiding conflict by appealing to reason, not to weapons. Our century has hoped that some sort of international tribunal - a world court - would decide disputes on enduring principles …

Beginning To Learn How To End: Lessons On Completion Strategies, Residual Mechanisms, And Legacy Considerations From Ad Hoc International Criminal Tribunals To The International Criminal Court, Dafna Gozani

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Repatriate . . . Then Compensate: Why The United States Owes Reparation Payments To Former Guantánamo Detainees, Cameron Bell

Loyola of Los Angeles Law Review

In late 2001, U.S. government officials chose Guantánamo Bay, Cuba, as the site to house the “war on terror” detainees. Since then, 779 individuals have been detained at Guantánamo. Many of the detainees have endured years of detention, cruel and degrading treatment, and for some, torture—conduct that violates well-established prohibitions against torture and inhumane treatment under both general international law and the law of war. Under these bodies of law, the United States is required to make reparation—through restitution, compensation, and satisfaction—for acts that violate its international obligations. But the United States has not offered financial compensation to any Guantánamo …

The Ndaa, Aumf, And Citizens Detained Away From The Theater Of War: Sounding A Clarion Call For A Clear Statement Rule, Diana Cho

Loyola of Los Angeles Law Review

In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s …

Illegally Evading Attribution? Russia's Use Of Unmarked Troops In Crimea And International Humanitarian Law, Ines Gillich

Vanderbilt Journal of Transnational Law

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)?

This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was …

Undocumented Migrants And The Failures Of Universal Individualism, Jaya Ramji-Nogales

Vanderbilt Journal of Transnational Law

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that …

Comments: At The Intersection Of National Interests And International Law: Why American Interests Should Assume The Right Of Way, Clark Smith

University of Baltimore Journal of International Law

Following the interwar period and disastrous results of an isolationist foreign policy, the United States changed course coming out of the Second World War. Assuming the global leadership role, the U.S. led the international effort to design and build the international institutions and organizations that would ensure and manage the global recovery from the war that ravaged the world’s economy, deter future wars by providing checks on and a balance of power, and that would ensure, to some degree, international systems based on rule of law. Pursuit of U.S. interests should, when possible, be carried out within that international legal …

The Sum Of The Parts, Therese O'Donnell

Human Rights & Human Welfare

From one perspective the Middle East lends itself as a macabre mise-en-scene where the triumph of realpolitik over the legitimacies of international law can be continually re-staged. To be sure, at least two sovereign states seem to go their own way, even in the face of rampant and valid international criticism—the end of a construction freeze on illegal settlements and failures to condemn clearly illustrate this point. However, two can play at that game. The US veto of the October 2003 draft Security Council resolution declaring as illegal Israel’s construction of its security fence, beyond the 1949 Green Line and …

Introduction To The Iachr Report On Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Taiawagi Helton

American Indian Law Review

No abstract provided.

Donald W. Jackson On Prisoners Of America’S Wars: From The Early Republic To Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp., Donald W. Jackson

Human Rights & Human Welfare

A review of:

Prisoners of America’s Wars: From the Early Republic to Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp.

Hidetoshi Hashimoto On International Law (Sixth Edition). By Malcolm Shaw. New York: Cambridge University Press, 2008. 1542pp., Hidetoshi Hashimoto

Human Rights & Human Welfare

A review of:

International Law (Sixth Edition). By Malcolm Shaw. New York: Cambridge University Press, 2008. 1542pp.

Necessary Fictions: Indigenous Claims And The Humanity Of Rights, Peter Fitzpatrick

Human Rights & Human Welfare

To begin, not propitiously. When checking whether my title ‘Necessary Fictions’ was being used elsewhere, Google revealed that it was going to be used in a future talk, and by me. It transpired mercifully that this use was going to be quite different to the present which suggested the prospect of a new academic genre: same title, different paper; rather than the standard combination of same paper, different title. Fortuitously, that contrast gave me the leitmotiv for this talk – that things ostensibly the same can be different, and that things ostensibly different can be the same.

© Peter Fitzpatrick. …

Missed Opportunity: Congress's Attempted Response To The World's Demand For The Violence Against Women Act, Brenton T. Culpepper

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in U.S. v. Morrison struck down, as a violation of the Commerce Clause, § 13,981 of the Violence Against Women Act, that provided a private right of action for victims of gender-motivated violence to assert against their abusers. However, § 13,981 should have been affirmed as implementing legislation designed to fulfill U.S. obligations under the International Covenant on Civil and Political Rights and customary international law. Recognizing § 13,981 as implementing legislation serves as a foundation for the United States to restore itself as a legitimate human rights leader capable of both appreciating its own international …

Non-Refoulement: The Search For A Consistent Interpretation Of Article 33, Ellen F. D' Angelo

Vanderbilt Journal of Transnational Law

The international community rose to the challenge of addressing mass migration with the 1951 Convention Relating to the Status of Refugees (1951 Convention). The 1951 Convention established several important concepts as binding international law, including the requirements for refugee classification and the principle of non-refoulement. The duty of non-refoulement prohibits state-parties from expelling or returning a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion. According to the definition in Article 33, non-refoulement is applicable …

David P. Forsythe On John Charvet And Elisa Kaczynska-Nay. The Liberal Project And Human Rights: The Theory And Practice Of A New World Order. New York, Ny: Cambridge University Press, 2008. 446pp., David P. Forsythe

Human Rights & Human Welfare

A review of:

John Charvet and Elisa Kaczynska-Nay. The Liberal Project and Human Rights: The Theory and Practice of a New World Order. New York, NY: Cambridge University Press, 2008. 446pp.

International Law And Human Trafficking, Lindsey King

Human Rights & Human Welfare

International law is a powerful conduit for combating human trafficking. The most reputable and recent instruments of international law that have set the course for how to define, prevent, and prosecute human trafficking are the United Nations Convention against Transnational Organized Crime and its two related protocols: the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, and the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, which entered into force in 2003-2004. The United Nations Office on Drugs and Crime (UNODC) created these conventions, which have supported international …

Considering The Margins: Developing A Broader Understanding Of Vulnerability To Trafficking, Christopher Anderson

Human Rights & Human Welfare

Efforts aimed at combating human trafficking should be directed at protecting those most vulnerable to being trafficked. There have been substantial efforts to create national and international laws punishing the act of trafficking, directed at those individuals caught trafficking people. While these laws create means by which to punish traffickers, they have not necessarily led to a reduction in the estimated numbers of trafficked people. This implies that simply approaching trafficking as a criminal activity is not enough. Instead, trafficking should be understood by the systemic factors that make populations vulnerable to trafficking. There may always be potential markets for …

International Myopia: Hamdan's Shortcut To "Victory", Michael W. Lewis

University of Richmond Law Review

No abstract provided.

Tugba Basaran On The Rights Of Refugees Under International Law By James C. Hathaway. Cambridge: Cambridge University Press, 2005. 1239pp., Tugba Basaran

Human Rights & Human Welfare

A review of:

The Rights of Refugees Under International Law by James C. Hathaway. Cambridge: Cambridge University Press, 2005. 1239pp.