Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 159

Full-Text Articles in Law

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum Apr 2022

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …


White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis Jan 2022

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …


The Racial Politics Of Fair Use Fetishism, Anjali Vats Jan 2022

The Racial Politics Of Fair Use Fetishism, Anjali Vats

Articles

This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.


Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran Jan 2022

Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

Articles

U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in …


Prohibiting Slavery & The Slave Trade, Jocelyn Getgen Kestenbaum Jan 2022

Prohibiting Slavery & The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

Slavery and the slave trade stubbornly persist in our time, but they receive insufficient attention in international human rights law. Even when courts adjudicate slavery violations, they often fail to characterize slave trade conduct that nearly always precedes slavery. Courts also characterize acts that meet the definition of slavery or the slave trade only as other human rights harms, such as forced labor or human trafficking. This failure to accurately characterize violations also as slavery and the slave trade perpetuates impunity and denies victims full expressive justice. This Article argues for reviving international human rights law’s prohibitions of slavery and …


Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness In The United States, Eric Tarst, Tamar Ezer, Melanie Ng, David Stuzin, Conor Arevalo Jun 2021

Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness In The United States, Eric Tarst, Tamar Ezer, Melanie Ng, David Stuzin, Conor Arevalo

Articles

This Article explores how international human rights norms and procedures can serve as a powerful tool in addressing injustice in the United States context, using work addressing the criminalization of homelessness as a case study. Moreover, it explores how civil and political rights and negative obligations by the government can serve as an entry point for asserting a more robust understanding of rights that includes social and economic rights and affirmative obligations by government. The Article documents and analyzes original work led by the National Homelessness Law Center and other pioneering advocates, reflecting on lessons learned and next steps to …


Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran Jan 2021

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

Articles

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …


Climate Mobility And The Pandemic: Art-Science Lessons For Societal Resilience, Jessica Owley Jan 2021

Climate Mobility And The Pandemic: Art-Science Lessons For Societal Resilience, Jessica Owley

Articles

As climate change leads to both internal displacement and mass migrations, we need not only new places for people to live but also new locations for infrastructure projects and other public needs. Some of the most attractive areas for these new land uses are currently unoccupied land, including land set aside for conservation. Numerous laws restrict the availability and possible uses of public conservation land. Individual agreements and property restrictions encumber private conservation land, varying in the ease with which the restrictions can be modified. For example, privately protected areas in the United States are often encumbered with perpetual conservation …


Counterterrorism 2.0, Deborah Pearlstein Jan 2021

Counterterrorism 2.0, Deborah Pearlstein

Articles

Are there any lessons to be gleaned for combatting the rising threat of white nationalist terrorism today from the U.S. response to the attacks of 9/11 twenty years on? This symposium reflection suggests that among the most important lessons may be in avoiding the conceptually defining characteristics of the early U.S. response in 2001. Detainee torture and abuse, the embrace of trial by newly formed military commission, and other misguided policies and practices whose effects are still felt today were set in motion in the first few weeks after the attacks, driven by the instinct to do something, bolstered by …


The Neglect Of Persons With Severe Brain Injury To The United States: An International Human Rights Analysis, Tamar Ezer, Megan S. Wright, Joseph J. Wright Jun 2020

The Neglect Of Persons With Severe Brain Injury To The United States: An International Human Rights Analysis, Tamar Ezer, Megan S. Wright, Joseph J. Wright

Articles

Brain injury contributes more to death and disability globally than any other traumatic incident. While the past decade has seen significant medical advances, laws and policies remain stumbling blocks to treatment and care. The quality of life of persons with severe brain injury often declines with unnecessary institutionalization and inadequate access to rehabilitation and assistive technologies. This raises a host of rights violations that are hidden, given that persons with severe brain injury are generally invisible and marginalized. This article highlights the current neglect and experiences of persons with severe brain injury in the United States, analyzing the rights to …


Introduction To The Symposium On Soft And Hard Law On Business And Human Rights, Steven R. Ratner Jun 2020

Introduction To The Symposium On Soft And Hard Law On Business And Human Rights, Steven R. Ratner

Articles

This symposium turns to a major debate within a field of international law that has moved from the periphery to center stage in just a few decades—business and human rights, or BHR: Can and should international law's approach to the human rights impacts of business activity shift from today's mostly soft-law framework to a multilateral treaty regime? While advocates for and against such a treaty debate this point at the UN Human Rights Council and other venues, this symposium examines the problem from four theoretical perspectives. Each contribution offers insights for practitioners and scholars alike, but they suggest no easy …


A History Of The Law Of Assisted Dying In The United States, Alan Meisel Jan 2020

A History Of The Law Of Assisted Dying In The United States, Alan Meisel

Articles

The slow growth in the number of states that have enacted legislation to permit what is often referred to as “death with dignity” legislation—and more frequently referred to popularly as “physician assisted suicide” laws—has begun to accelerate in the past few years since the enactment of the first such statute in Oregon in 1994.

Like much other social reform legislation, there is a long history behind it. In this case, the history in the United States dates back at least to the latter part of the nineteenth century. Not until the 1980s, however, did these efforts gain any traction in …


Our Trade Law System, Kathleen Claussen Jan 2020

Our Trade Law System, Kathleen Claussen

Articles

No abstract provided.


Paradigm Perplexities: Does International Humanitarian Law Or International Human Rights Law Govern The Gaza Border Protests Of 2018-2019, & What Are The Consequences? A Response To The Supreme Court’S Opinion In Yesh Din V. Idf Chief Of Staff (Hcj 3003/18), Anthony Carl Jan 2020

Paradigm Perplexities: Does International Humanitarian Law Or International Human Rights Law Govern The Gaza Border Protests Of 2018-2019, & What Are The Consequences? A Response To The Supreme Court’S Opinion In Yesh Din V. Idf Chief Of Staff (Hcj 3003/18), Anthony Carl

Articles

In March 2018, thousands of Gazan citizens mobilized for a mass protest movement at the border with the State of Israel that endured for more than a year and a half, ending in late 2019. By February 2019, the IDF’s response to these protestors resulted in 189 deaths and 23,313 injuries to Gazan Palestinian protestors. Upon hearing challenges to the IDF’s rules of engagement brought by a number of human rights groups, the Israeli Supreme Court ruled in HCJ 3003/18 Yesh Din v. IDF Chief of Staff that the IDF’s response was proper under the law enforcement paradigm of international …


Povos Indígenas, Genocídio E Pademia No Brasil, Fernanda Frizzo Bragato, Marco Antônio Delfino De Almeida, Jocelyn Getgen Kestenbaum Jan 2020

Povos Indígenas, Genocídio E Pademia No Brasil, Fernanda Frizzo Bragato, Marco Antônio Delfino De Almeida, Jocelyn Getgen Kestenbaum

Articles

Indigenous Peoples, Genocide and Pandemics in Brazil

COVID-19 pandemics spreads among Brazilian indigenous communities while they endure the dismantling of protective policies, the current government's hostility, as well as the disproportionate effects in terms of contamination and mortality. This situation has been concerning indigenous organizations and public authorities in Brazil and worldwide. Indigenous peoples are potential victims of genocide, an act characterized both as a criminally punishable conduct and as a State policy capable to generate international State liability. This study intends to investigate whether and how the conditions of susceptibility to the physical destruction met by several Brazilian indigenous …


Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway Mar 2019

Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway

Articles

The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.


Religious Slaughter And Animal Welfare Revisited: Cjeu, Liga Van Moskeeen En Islamitische Organisaties Provincie Antwerpen (2018), Anne Peters Jan 2019

Religious Slaughter And Animal Welfare Revisited: Cjeu, Liga Van Moskeeen En Islamitische Organisaties Provincie Antwerpen (2018), Anne Peters

Articles

The article comments on a Grand Chamber judgment by the Court of the European Union on animal slaughter according to Islamic prescriptions. The relevant European Union laws prescribe that religious slaughter without stunning of the animal may only take place in approved slaughterhouses. This causes a shortage during the Muslim Feast of Sacrifice in the Belgian province ofAntwerp. The EU law provisions are in conformity with the animal welfare mainstreaming clause of the Treaty on the Functioning of the European Union. Moreover, the EU regulation and its application in the concrete case does not violate the fundamental right of free …


Severe Brain Injury, Disability, And The Law: Achieving Justice For A Marginalized Population, Megan S. Wright, Nina Varsava, Joel Ramirez, Kyle Edwards, Nathan Gueveremont, Tamar Ezer, Joseph J. Fins Jan 2018

Severe Brain Injury, Disability, And The Law: Achieving Justice For A Marginalized Population, Megan S. Wright, Nina Varsava, Joel Ramirez, Kyle Edwards, Nathan Gueveremont, Tamar Ezer, Joseph J. Fins

Articles

Thousands of persons with severe brain injury who are minimally conscious or "locked in" are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores …


How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad Dec 2017

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Jul 2017

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Trump Administration Takes Steps to Implement Bilateral Agreement with Australia Regarding Refugees • Trump Administration Criticizes NATO Members for Failing to Meet Defense Spending Guideline; United States Joins Other NATO Members in Supporting Montenegro’s Membership in the Organization • President Trump Issues Executive Orders Suspending Refugee Program and Barring Entry by Individuals from Specified Countries • Trump Administration Maintains Nuclear Deal with Iran, Despite Persistent Skepticism • United States Strikes Syrian Government Airbase in Response to Chemical Weapons Attacks by Syrian Forces; Two Additional Strikes on Syrian Government Forces Justified by Defense of Troops Rationale • …


Trabalho Escravo: L'Esclavage Contemporain Au Brésil, Rebecca J. Scott, Jean Hebrard May 2017

Trabalho Escravo: L'Esclavage Contemporain Au Brésil, Rebecca J. Scott, Jean Hebrard

Articles

"Le gouvernement brésilien a engagé, il y a quelques années, une ambitieuse campagne de lutte contre l’exploitation de travailleurs dans une condition « analogue » à celle d’esclave. Cette politique répondait à des campagnes de protestation réitérées et à des pressions internationales, mais elle se formula en référence à une histoire nationale dont l’esclavage était inséparable. Les révélations de la Commission pastorale de la terre, les plaintes déposées auprès de la Cour interaméricaine des droits de l’homme, les actions de nombreux organismes gouvernementaux ou non-gouvernementaux ont certainement été déterminantes dans les choix qui ont alors été faits. Toutefois, tout au …


Jewish Honor Courts: Revenge, Retribution, And Reconciliation In Europe And Israel After The Holocaust, David Abraham Apr 2017

Jewish Honor Courts: Revenge, Retribution, And Reconciliation In Europe And Israel After The Holocaust, David Abraham

Articles

No abstract provided.


The State Of The City And The Future Of Human Rights: A Review Of Global Urban Justice, Johanna Kalb Jan 2017

The State Of The City And The Future Of Human Rights: A Review Of Global Urban Justice, Johanna Kalb

Articles

No abstract provided.


Human Rights Proxy Wars, Johanna Kalb Jan 2017

Human Rights Proxy Wars, Johanna Kalb

Articles

No abstract provided.


You Say Embargo, I Say Bloqueo - A Policy Recommendation For Promoting Foreign Direct Investment And Safeguarding Human Rights In Cuba, Marcia Narine Weldon Jan 2017

You Say Embargo, I Say Bloqueo - A Policy Recommendation For Promoting Foreign Direct Investment And Safeguarding Human Rights In Cuba, Marcia Narine Weldon

Articles

The United States is the only major industrialized nation that restricts trade with Cuba. Although President Obama issued several executive orders that have facilitated limited trade (and President Trump has scaled some back), an embargo remains in place, and by law, Congress cannot lift it until, among other things, the Cuban government commits to democratization and human rights reform. Unfortunately, the Cuban and U.S. governments fundamentally disagree on the definition of "human rights, " and neither side has shown a willingness to compromise. Meanwhile, although some US. investors clamor to join their European and Canadian counterparts in expanding operations in …


Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin Jan 2017

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin

Articles

It is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …


Is There A Right To Be Free From Corruption?, Anita Ramasastry Jan 2017

Is There A Right To Be Free From Corruption?, Anita Ramasastry

Articles

Scholars and policymakers have, for some time, focused on the link between corruption and human rights. This has been to illustrate that corruption is not a victimless crime. While this has publicized the impact of corruption on individuals and on society, it has not changed the lack of political will to prosecute many instances of corruption. Thus citizens often stand by as their leaders plunder national treasuries. Rather than focusing solely on human rights, or trying to create a new “human right” to be free from corruption, this article explores the right to a legal remedy for victims of corruption …


A Global Solution To A Global Refugee Crisis, James C. Hathaway Apr 2016

A Global Solution To A Global Refugee Crisis, James C. Hathaway

Articles

The author argues that the time is right to change the way that refugee law is implemented. Specifically, Hathaway advocates a shift towards a managed and collectivized approach to the implementation of refugee protection obligations. He contends that while the obligations under the Convention remain sound, the mechanisms for implementing those obligations are flawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. The author concludes with a five-point plan to revitalize the Refugee Convention.


International Human Rights; International Human Rights Law, James W. Nickel Feb 2016

International Human Rights; International Human Rights Law, James W. Nickel

Articles

No abstract provided.


Evaluating International State Constitutionalism, Johanna Kalb Jan 2016

Evaluating International State Constitutionalism, Johanna Kalb

Articles

No abstract provided.