Law Commons^™

Human Rights Realism, Natalie R. Davidson

Vanderbilt Journal of Transnational Law

In the aftermath of gross human rights abuses, when, if at all, should we forego legal accountability? Human rights scholars debated this question in the 1980s and 1990s, in what was referred to as the "peace versus justice" debate. The "justice" side won the day among human rights advocates, among whom the dominant position is that legal accountability is a necessary response to atrocity and cannot be limited by political considerations (a position this Article terms "human rights absolutism'). However, this question has resurfaced in the twenty-first century, in intense debates with interlocutors outside the field of human rights. Faced …

Why China Should Unsign The International Covenant On Civil And Political Rights, Margaret K. Lewis

Vanderbilt Journal of Transnational Law

In March 2019, the United Nations Human Rights Council finalized its periodic review of China's human rights record just as human rights in China were under intensified attack. As during prior reviews, China was criticized for its human rights practices. And, once again, China was urged to ratify the International Covenant on Civil and Political Rights (ICCPR), which China signed over twenty years ago. It is time to reevaluate this approach.

This Article argues that the international community should change tack and instead call on China to remove its signature from this foundational human rights treaty. While this would be …

Redefining Lgbtq And Abortion Rights In Latin America: A Transnational Toolkit, Alyssa Julian

Vanderbilt Journal of Transnational Law

Throughout Latin America, the Lesbian, Gay, Bisexual, Trans, and Queer (LGBTQ) and abortion rights movements have progressed at divergent strengths and speeds, with significant variation among countries. The region is home to some of the most restrictive and discriminatory laws when it comes to these contentious issues. This Note explores some of the reasons behind the variation in LGBTQ and abortion rights throughout the region.

This Note traces the economic and political history of Latin America to illustrate the climate in which these social movements are operating. Further, this Note offers a brief snapshot of recent global developments in LGBTQ …

China's Belt And Road Initiative Is Reshaping Human Rights Norms, Mikkaela Salamatin

Vanderbilt Journal of Transnational Law

Since its birth in 2015, the Belt and Road Initiative has garnered significant attention for its benefits and its detriments. Much of the current scholarship in this area is focused on particular pieces of the Belt and Road Initiative, with few in legal scholarship considering the impact of the relationship between China's growing soft power and its effect on international law and international institutions. Every state has the right to pursue power and influence, but this Note specifically examines how China's methods of obtaining this power and influence--specifically through the Belt and Road Initiative and related actions within United Nations' …

The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben

Vanderbilt Journal of Transnational Law

Consumers are increasingly demanding that the goods and services they consume be produced in a way that meets their social expectations. By extension, they are exhibiting greater willingness to pay more at the cash register for products made in good working conditions, and they are willing to punish companies that do not satisfy these expectations. Driving these "citizen-consumers" is what this Article terms the "consumer imaginary," which is defined as the narratives that consumers tell themselves about the people that make their things--people whom consumers will likely never meet, and whose lived experiences are distant from their own. Policymakers have …

Whither And Whether With The Formative Aim Thesis, Gopal Sreenivasan

Vanderbilt Journal of Transnational Law

According to John Tasioulas, the formative aim of international human rights law is to give effect to moral human rights (insofar as it is appropriate for international law to do so, through the technique of assigning a uniform set of individual legal rights to all humans). In cases of pure human rights inflation, an international legal human right fails to give effect to any moral human right. Tasioulas regards international legal human rights that fit this criterion as morally unjustified. This Article scrutinises various bases on which the inference underlying his conclusion might be validated and argues that none of …

"Human Rights, Responsibilities, And Democracy," Comments On Tasioulas And Moyn Papers: "Symposium On The Future Of International Human Rights Law", Kathryn Sikkink

Vanderbilt Journal of Transnational Law

It is a pleasure and a challenge to comment on these two very different Articles, "Saving Human Rights from Human Rights Law," by John Tasioulas, and 'On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory," by Samuel Moyn. Both are rich, complex, and thought-provoking. To the degree they share any common dimension, it would be their skepticism toward human rights law, and in particular toward the judicialization of human rights law. But the skepticism comes from quite different directions and from their different disciplines. In the case of Tasioulas's paper, the skepticism derives from his belief that legal human …

Do Human Rights Treaties Matter: The Case For The United Nations Convention On The Rights Of People With Disabilities, Arlene S. Kanter

Vanderbilt Journal of Transnational Law

In the United States, and throughout many other parts of the world, we are witnessing attacks on basic human rights. As poverty, inequality, and suffering are evident in so many parts of the world today, there are those who say that the entire human rights regime has failed. This author does not agree. While it is true that human rights treaties have not realized their full potential in every country that has ratified them, human rights treaties do "matter." This Article makes the case for human rights treaties by referring to the success of the Convention on the Rights of …

On Human Rights And Majority Politics, Samuel Moyn

Vanderbilt Journal of Transnational Law

This symposium piece is primarily a reading of Felix Frankfurter's dissent in West Virginia State Board of Education v. Barnette, attempting to draw some lessons from his theory of majoritarian rights for our own moment of crisis for the human rights movement. The situations then and now are only partly comparable, but Frankfurter's call for allowing democratic processes to self-correct even when elite shortcuts beckon--including when it comes to defining and protecting rights--provides food for thought.

In Defense Of Human Rights, Karima Bennoune

Vanderbilt Journal of Transnational Law

This Article argues that international human rights law, and the human rights movement more generally, need more defenders than critics in the current international political environment. Groups ranging from academics to governments have taken stances critical of human rights, and this Article seeks to defend the rights framework from some of these while also arguing for the importance of human rights in today's world. Noting that the field of human rights is not beyond criticism, this Article embraces some of those criticisms. However, it suggests that human rights law specialists need to spend at least as much time defending human …

Transitional Justice In Housing Injustice: The Case Of Housing Rights Violations Within Settler Democracies, Manal Totry-Jubrane

Vanderbilt Journal of Transnational Law

The right to housing is recognized by international human rights treaties as an integral part of the right to an adequate standard of living. Many states have ratified these treaties and incorporated protection of some aspects of housing rights into their constitutions and domestic legislation. Other states have not enacted any legislation in recognition of housing rights, but they provide judicial remedies for violations of rights. Despite that, domestic and international reports indicate that housing rights are constantly being violated in countries across the world at different levels.

This Article focuses on housing rights violations within "settler democracies." Such countries …

Looking To The Future: The Scope, Value And Operationalization Of International Human Rights Law, Lorna Mcgregor

Vanderbilt Journal of Transnational Law

The international human rights system of which international human rights law (IHRL) is a part has been critiqued for being ineffective, too legal, insufficiently self-critical, and elitist, with some claiming that it self-generates some of the challenges it faces. This Article challenges this presentation of IHRL and in doing so, sets out three priorities for its future development. These are first, that it should continue to engage in critical analysis of how IHRL can effectively respond to the complex and multifactorial challenges it faces. Second, rather than refrain from developing due to critiques of over expansion, IHRL should prioritize the …

Proportionality Under International Humanitarian Law: The "Reasonable Military Commander" Standard And Reverberating Effects, Ian Henderson, Kate Reece

Vanderbilt Journal of Transnational Law

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of international humanitarian law (IHL), key terms are not defined in relevant treaties nor do they benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality.

The Article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of …

The Evolution And Identification Of The Customary International Law Of Armed Conflict, Sir Michael Wood

Vanderbilt Journal of Transnational Law

Despite the many widely ratified treaties on the law of armed conflict (LOAC, also referred to as international humanitarian law (IHL)), customary international law remains of great importance in this branch of international law. So far as concerns international armed conflicts, customary international humanitarian law (CIHL) is of special importance in connection with states not party to Additional Protocol I of 1977. So far as concerns non-international armed conflicts, CIHL is of crucial importance for all states, since, for the most part, treaty provisions are rudimentary. The International Court of Justice has also had occasion to state that "a great …

Understanding Serious Bodily Or Mental Harm As An Act Of Genocide, Nema Milaninia

Vanderbilt Journal of Transnational Law

What is genocide? The typical answer immediately brings to mind incidents of large-scale killings like those in World War II, Rwanda, and Srebrenica. The same images, however, create an incomplete and potentially misleading picture of the crime. Genocide is a far broader concept than mass executions. The crime was deliberately designed to capture the variant and innumerable ways individuals or organizations might try to destroy racial, ethnic, religious, or national groups. And while certain acts, like rape and other acts of sexual violence, never formed part of the crime's initial understanding, these acts are now accepted as tools of destruction …

When Genealogy Matters: Intercountry Adoption, International Human Rights, And Global Neoliberalism, Barbara Stark

Vanderbilt Journal of Transnational Law

Genealogy isn't what it used to be. Once genealogy was the route to "legitimacy," whether literally--a "fillius nullius," a child of no one, was illegitimate, a bastard--or more fancifully--a tastefully mounted family crest could be obtained for virtually any surname, for a price. Or genealogy referred to the painstaking search for roots, the recovery of a personal history, the excavation of a trajectory that would give meaning to the present. But we are all legitimate now. And DNA testing provides more information than anyone can process, including, for some, the refutation of cherished ancestral myths, a good chance of developing …

Humanitarian Regulation Of Hostiles: The Decisive Element Of Context, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant …

Gene Editing And The Rise Of Designer Babies, Tara R. Melillo

Vanderbilt Journal of Transnational Law

Nearly as long as human beings have existed on this earth, many people have sought out the ideal of perfecting their population: infanticide in Sparta during the Hellenistic era; compulsory sterilization in the 1920s in the United States; and the unimaginable atrocities of the Holocaust in the 1940s in Europe. The goal of alleged perfection leaves many hesitant to repeat the mistakes of our past. Today, a new frontier of science has emerged, gene editing using CRISPR-Cas9, reigniting ethical debate as to how far humans should go in manipulating the population. While many proponents herald this technology as a potential …

The Human Rights Obligations Of State-Owned Enterprises: Emerging Conceptual Structures And Principles In National And International Law And Policy, Larry C. Backer

Vanderbilt Journal of Transnational Law

The distinction between the obligations of public and private entities, and their relation to law, is well known in classical political and legal theory. States have a duty that is undertaken through law; enterprises have a responsibility that is embedded in their governance. These fundamental divisions form part of the current international efforts to institutionalize human rights-related norms on and through states and enterprises, and most notably through the U.N. Guiding Principles for Business and Human Rights. The problems of conforming to evolving norms becomes more difficult where states project their authority through commercial enterprises.

Hunt Or Be Hunted, Jeremiah Cioffi

Vanderbilt Journal of Transnational Law

Bulgaria is the geographic and political center of the European migrant crisis, which has the Bulgarian citizenry uneasy about its security. Bulgaria's societal disdain for Middle Eastern migrants stems from hundreds of years of subjugation and non-Muslim Bulgarians' second-class citizenship under the Ottoman Empire. Roving bands of civilian migrant hunters have begun taking the law into their own hands by capturing migrants and turning them over to the Bulgarian authorities for deportation. This Note discusses the illegality of such migrant hunting under Bulgarian domestic law. It then discusses how the impunity enjoyed by migrant hunters is an abdication of Bulgarian …

Politics By Other Means: The Battle Over The Classification Of Asymmetrical Conflicts, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift …

"Measuring" The Erosion Of Academic Freedom As An International Human Right, Klaus D. Beiter, Terence Karran, Kwadwo Appiagyei-Atua

Vanderbilt Journal of Transnational Law

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries' constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but "politically" binding, and which concretizes international human rights requirements in respect …

A Post-Millennial Inquiry Into The United Nations Law Of Self-Determination: A Right To Unilateral Non-Colonial Secession?, Dr. Glen Anderson

Vanderbilt Journal of Transnational Law

The present Article inquires whether a right to unilateral non-colonial (UNC) secession is grounded in the United Nations (UN) law of self-determination. The Article argues that peoples subjected to deliberate, sustained, and systematic human rights abuses in extremis (e.g., ethnic cleansing, mass killings, or genocide) by the existing state have an international customary law right to UNC secessionist self-determination. This right is coextensive with the "remedial-rights-only" philosophical approach to UNC secession. The Article further argues that in the post-millennial era two developments are likely for the law of UNC secessionist self-determination: first, the right will become available in response to …

Justice By Proxy: Combatting Forced Labor In The Greater Mekong Subregion By Holding U.S. Corporations Liable, Sasha Beatty

Vanderbilt Journal of Transnational Law

Human trafficking in Southeast Asia is still a thriving and lucrative industry. Despite these blatant human rights violations, international and local laws have struggled to keep ahead of the rapidly growing human trafficking industry. The result is a legal system that cannot effectively combat human trafficking in this region. This Note highlights the United States' significant financial contribution to the growth of this slavery industry, particularly in the purchase of significant quantities of goods produced by forced labor in this region. This Note argues that a way to expedite change in this region should be from external, foreign law targeting …

Female Genital Mutilation And Designer Vaginas In Britain: Crafting An Effective Legal And Policy Framework, Lisa R. Avalos

Vanderbilt Journal of Transnational Law

The prevalence of female genital mutilation (FGM) in Britain and Europe has grown in recent years as a result of international migration, and European institutions have grown increasingly concerned with eradicating the practice. According to the European Parliament, approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure, and more than 30,000 girls in Britain are thought to be at risk of future FGM. Although Britain strengthened its law against FGM in 2003, the number of girls at risk continues to grow, and there have been no convictions for …

Do Human Rights Treaties Help Asylum-Seekers?: Lessons From The United Kingdom, Stephen Meili

Vanderbilt Journal of Transnational Law

This Article analyzes the circumstances under which international human rights treaties have helped or hurt asylum-seekers in the United Kingdom since 1991. Combining a database of nearly two thousand asylum decisions and fifty-one interviews with U.K. refugee lawyers, it identifies several factors which help determine the impact of human rights treaties in individual cases. It focuses on the United Kingdom because that country has ratified or otherwise adopted numerous human rights treaties over the past three decades, and U.K. refugee lawyers regularly invoke those treaties in representing their clients.

This Article fills a gap in the treaty effectiveness literature by …

Beyond Voluntary Corporate Social Responsibility: Corporate Human Rights Obligations To Prevent Disasters And To Provide Temporary Emergency Relief, Anastasia Telesetsky

Vanderbilt Journal of Transnational Law

Much of the focus of the emerging field of International Disaster Law is on state responsibility. Yet the source of some disasters is the failure of corporations to address known risks created by a company or located on company property. This Article queries whether there are obligations for corporations to act under international human rights law to prevent disasters where corporations have control over known hazards such as tailings dams or chemical dumps. This Article concludes that corporations have a legal duty to act in order to support and protect human rights whenever there is corporate knowledge of hazards that …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

Reducing The Price Of Peace: The Human Rights Responsibilities Of Third-Party Facilitators, Michal Saliternik

Vanderbilt Journal of Transnational Law

Peace agreements can bring about serious injustices. For example, they may establish oppressive regimes, provide for the transfer of populations, or allocate natural resources in an inequitable manner. This Article argues that third-party facilitators--states and international organizations that act as mediators, donors, or peacekeepers--should have a responsibility to prevent such injustices. While the primary duty to ensure the justice of peace agreements resides with the governments that negotiate and sign them, directing regulation efforts only at those governments may prove insufficient in protecting human rights under the politically constrained circumstances of peacemaking. It is therefore necessary to complement the primary …

Predictive Due Process And The International Criminal Court, Samuel C. Birnbaum

Vanderbilt Journal of Transnational Law

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced …