Law Commons^™

“Time Is A-Wasting”: Making The Case For Cedaw Ratification By The United States, Rangita De Silva De Alwis, Melanne Verveer

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Since President Carter signed the Convention for the Elimination of All Forms of Discrimination Against Women (the “CEDAW” or the “Convention”) on July 17, 1980, the United States has failed to ratify the Convention time and again. As one of only a handful of countries that has not ratified the CEDAW, the United States is in the same company as Sudan, Somalia, Iran, Tonga, and Palau. When CEDAW ratification stalled yet again in 2002, then-Senator Joseph Biden lamented that “[t]ime is a-wasting.”

Writing in 2002, Harold Koh, former Assistant Secretary of State for Democracy, Human Rights, and Labor, bemoaned America’s …

The Proof Is In The Process: Self-Reporting Under International Human Rights Treaties, Cosette D. Creamer, Beth A. Simmons

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Recent research has shown that state reporting to human rights monitoring bodies is associated with improvements in rights practices, calling into question earlier claims that self-reporting is inconsequential. Yet little work has been done to explore the theoretical mechanisms that plausibly account for this association. This Article systematically documents—across treaties, countries, and years—four mechanisms through which reporting can contribute to human rights improvements: elite socialization, learning and capacity building, domestic mobilization, and law development. These mechanisms have implications for the future of human rights treaty monitoring.

Rulers Or Rules? International Law, Elite Cues And Public Opinion, Anton Strezhnev, Beth A. Simmons, Matthew D. Kim

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One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on …

Do Self-Reporting Regimes Matter? Evidence From The Convention Against Torture, Beth A. Simmons, Cosette D. Creamer

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International regulatory agreements depend largely on self-reporting for implementation, yet we know almost nothing about whether or how such mechanisms work. We theorize that self-reporting processes provide information for domestic constituencies, with the potential to create pressure for better compliance. Using original data on state reports submitted to the Committee Against Torture, we demonstrate the influence of this process on the pervasiveness of torture and inhumane treatment. We illustrate the power of self-reporting regimes to mobilize domestic politics through evidence of civil society participation in shadow reporting, media attention, and legislative activity around anti-torture law and practice. This is the …

The Dynamic Impact Of Periodic Review On Women’S Rights, Cosette D. Creamer, Beth A. Simmons

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Human rights treaty bodies have been frequently criticized as useless and the regime’s self-reporting procedure widely viewed as a whitewash. Yet very little research explores what, if any, influence this periodic review process has on governments’ implementation of and compliance with treaty obligations. We argue oversight committees may play an important role in improving rights on the ground by providing information for international and primarily domestic audiences. This paper examines the cumulative effects on women’s rights of self-reporting and oversight review, using original data on the history of state reporting to and review by the Committee on the Elimination of …

The Elusive Promise Of Equal Opportunity And Women’S Empowerment Through Temporary Labor Migration Programs: Lessons In Systemic Discrimination From The United States, Sarah Paoletti

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Women comprise approximately half of all migrants across the world, and similarly account for nearly half of all of labor migration. But equality in numbers belies the systemic discrimination women confront in accessing employment opportunities through labor migration programs, as well as the experiences of women within those programs. Migration – and specifically labor migration – is not a gender-neutral phenomenon. The International Labor Organization (ILO) has expressed concern that as feminization of migration increases, women migrants will be increasingly vulnerable to “discrimination, exploitation and abuse… because of hardened attitudes towards migrants in general and because gender-based attitudes and perceptions …

Making Laws, Breaking Silence: Case Studies From The Field, Rangita De Silva De Alwis

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The Sustainable Development Goals seek to change the history of the 21st century, addressing key challenges such as poverty, inequality, and violence against women and girls. The inalienable rights of gender equality and empowerment of women and girls addressed in Goal 5 are a pre-condition for this. Despite decades of struggle by women’s movements and reformist agendas, much still needs to be done to address de facto and de jure discrimination against women. At a time of enormous change for women, these essays from around the world are a critical analysis of the role of law in regulating and shaping …

Framing For A New Transnational Legal Order: The Case Of Human Trafficking, Paulette Lloyd, Beth A. Simmons

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How does transnational legal order emerge, develop and solidify? This chapter focuses on how and why actors come to define an issue as one requiring transnational legal intervention of a specific kind. Specifically, we focus on how and why states have increasingly constructed and acceded to international legal norms relating to human trafficking. Empirically, human trafficking has been on the international and transnational agenda for nearly a century. However, relatively recently – and fairly swiftly in the 2000s – governments have committed themselves to criminalize human trafficking in international as well as regional and domestic law. Our paper tries to …

Introduction To Intervention Under International Law, Mortimer N.S. Sellers

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The lawfulness or legitimacy of "external" intervention in the "internal" affairs of sovereign states is one of the most basic controversies in modern international law. The question arises in three separate but related forms: When is intervention lawful? When is intervention legitimate? And when should intervention occur? Discussion here will focus on the legal question, but legitimacy, morality, and brutal reality all form and sometimes trump the law. They dictate the parameters within which all legal determinations take place, including the legality of cross-border interventions. By "intervention" I mean any activity by one state or its agents that influences the …

Crimea And The International Legal Order, William W. Burke-White

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A key balance between two of the most fundamental principles of the post-World War II international legal and political order is at stake today in Ukraine. Particularly in its annexation of Crimea, Russia has exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination. Russia’s reinterpretation of these two principles could well destabilize the tenuous balance between the protection of individual rights and the preservation of states’ territorial integrity that undergirds the post World War II order. In determining the precedent that will be remembered …

Treaty Options: Towards A Behavioral Understanding Of Treaty Design, Jean Galbraith

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Rational choice theory is the dominant paradigm through which scholars of international law and international relations approach treaty design. In this Article, I suggest a different approach using a combination of empirical observations of state behavior and theoretical insights from behavioral economics. I focus on one aspect of multilateral treaty design: namely, treaty reservations and associated legal mechanisms which allow states to vary the degree of their formal commitments to treaties. I call these mechanisms “treaty options.” I argue that the framing of treaty options matters powerfully — and does so in ways inconsistent with rational choice theory, but consistent …

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

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Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to …

Adoption Of The Responsibility To Protect, William W. Burke-White

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This book chapter traces the legal and political origins of the Responsibility to Protect doctrine from its early origins in the International Commission on Intervention and State Sovereignty through the 2005 World Summit Outcome Document and up to January 2011. The chapter examines the legal meaning of the Responsibility to Protect, the obligations the Responsibility imposes on states and international institutions, and its implications in for the international legal and political systems. The chapter argues that while the Responsibility to Protect has developed with extraordinary speed, it is still a norm in development rather than a binding legal rule. Its …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

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Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …

Intention, Torture, And The Concept Of State Crime, Aditi Bagchi

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Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, …

The Thirteenth Amendment And Slavery In The Global Economy, Tobias Barrington Wolff

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The globalization of industry has been accompanied by a globalization of labor exploitation. With increasing frequency, U.S.-based multinational corporations are carrying on their foreign operations through the deliberate exploitation of involuntary or slave labor. This development in the foreign labor practices of U.S. entities heralds a new era of challenge and transformation for the Thirteenth Amendment and its prohibition on the existence of slavery or involuntary servitude. It has become necessary to reexamine the range of activities in American industry - and American participation in global industry - that the amendment reaches. I begin that reexamination here. In this article, …