Law Commons^™

When Intent Makes All The Difference In The World: Economic Sanctions On Iraq And The Accusation Of Genocide, Joy Gordon

Joy Gordon

The U.N. Security Council responded to Iraq's invasion of Kuwait with a comprehensive regime of sanctions. This Article examines the claim that the highly planned policy contains elements of genocide and critically examines the international legal definition of genocide and its central requirement of specific intent. It argues that the conception of genocide contained in the 1948 Genocide Convention ignores whole categories of atrocities, exculpating certain actors who have committed acts of massive human destruction and removing the acts themselves from the sphere of moral judgment and accountability. The Article describes the devastating human costs that the Security Council and …

Sexual Orientation, Equal Treatment And The Right To Manifest Religion: Lee V Mcarthur, Mel Cousins

Mel Cousins

The Ideology Of Human Rights, Makau Wa Mutua

Makau Mutua

This piece argues that although human rights is an ideology although it presents itself as non-ideological, non-partisan, and universal. It contends that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the construction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies. Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and the universality of human …

What Is The Future Of Transitional Justice?, Makau W. Mutua

Makau Mutua

This piece explores and critiques the project of transitional justice. It has been more than a quarter of a century since transitional justice burst onto the global stage. Over the years it has come to be billed as a panacea for addressing deeply embedded social and political dysfunction after periods of mass repression and violence. Many theorists and policy makers have argued that it is a key bridge to sustainable peace, democracy and human rights. But the historical record is not clear about a direct causal relationship between transitional justice mechanisms and specific outcomes in post-conflict societies. In some cases, …

Standard Setting In Human Rights: Critique And Prognosis, Makau Mutua

Makau Mutua

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …

The Banjul Charter And The African Cultural Fingerprint: An Evaluation Of The Language Of Duties, Makau Wa Mutua

Makau Mutua

No abstract provided.

Savages, Victims, And Saviors: The Metaphor Of Human Rights, Makau Mutua

Makau Mutua

This article critically looks at the human rights project as a damning three-dimensional metaphor that exposes multiple complexes. It argues that the grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other. The savages-victims-saviors (SVS) construction lays bare some of the hypocrisies of the human rights project and asks human rights thinkers and advocates to become more self-reflective. The piece questions the universality and cultural neutrality of the human rights project. It calls for the construction of a truly universal human rights corpus, one …

The African Human Rights Court: A Two-Legged Stool?, Makau Mutua

Makau Mutua

This article examines the African continental human rights system that is built on the African Charter on Human and Peoples’ Rights. It pays particular attention to the deficits of that system and argues that the establishment of the African Court on Human and Peoples’ Rights – a judicial body meant to strengthen the protection of human rights in Africa – falls far short. It exposes the normative and structural shortcomings that render the court virtually meaningless. It concludes that the court serves very little purpose except to address the enormous human rights challenges facing Africa.

The African Human Rights System: A Critical Evaluation, Makau W. Mutua

Makau Mutua

No abstract provided.

Just Back From The Human Rights Council, Makau Mutua

Makau Mutua

The piece critically looks at the transition from the UN Commission on Human Rights to the UN Human Rights Council in 2006 and questions whether the change is one of substance or form. It argues that the same paralysis that dogged the Commission will continue to afflict the Council because power politics and regional blocs - fueled by the global asymmetries of power - will not go away. The piece also contends that the charge by the West that the Commission was utterly compromised by the Third World was without merit because it was the one forum where developing could …

New Challenges To Southern Africa: From Regional Conflict To Internal Reconstruction, Makau Wa Mutua

Makau Mutua

With the possible exception of the Horn of Africa, arguably no other African region has been subject to multiple traumas such as those endured by Southern Africa. From the brutal Portuguese colonization to the vicious civil wars in Angola and Mozambique, not to mention the ravages of apartheid in South Africa and Namibia, the last four hundred years have seen sheer brutality of man over fellow man. Since 1990, however, there has been a steady reversal of the conditions that have historically caused violence in the region. In this article, the author examines this legacy and the struggle to construct …

J. Shand Watson's Theory And Reality In The International Protection Of Human Rights (Book Review), Makau Mutua

Makau Mutua

No abstract provided.

Human Rights International Ngos: A Critical Evaluation, Makau Mutua

Makau Mutua

Published as Chapter 7 in NGOs and Human Rights: Promise and Performance, Claude E. Welch, Jr., ed.

The Human rights movement can be seen in a variety of guises. It can be seen as a movement for international justice or as a cultural project for “civilizing savage” cultures. In this chapter, I discuss a part of that movement as a crusade for a political project. International nongovernmental human rights organizations (INGOs), the small and elite collection of human rights groups based in the most powerful cultural and political capitals of the West, have arguably been the most influential component of …

African Human Rights Organizations: Questions Of Context And Legitimacy, Makau Mutua

Makau Mutua

Published as Chapter 13 in Human Rights, the Rule of Law, and Development in Africa, Paul Tiyambe Zeleza & Philip J. McConnaughay, eds. The human rights movement is largely the product of the horrors of World War II. The development of its normative content and structure is the direct result of the abominations committed by the Third Reich during that war. Drawing on the Western liberal tradition, the human rights movement arose primarily to control and contain state action against the individual. It is ironic that it was the victors of the war, most of whom held colonies in Africa, …

A Critique Of Rights In Transitional Justice: The African Experience, Makau W. Mutua

Makau Mutua

Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were …

Rethinking The "Less As More" Thesis: Supranational Litigation Of Economic, Social And Cultural Rights In The Americas, Tara J. Melish

Tara Melish

In their 2005 law review article Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, James Cavallaro and Emily Schaffer argue for a "rethinking" of strategies to advance economic, social and cultural rights in the Americas. They posit that to achieve higher rates of real-world protection for such rights, social rights advocates should do two things: first, bring less litigation and, second, frame any marginal litigation that is pursued as violations of classic civil and political rights. According to the authors, this recommended course will increase the "legitimacy" of the litigation and lead to higher …

Protecting Economic, Social And Cultural Rights In The Inter-American Human Rights System: A Manual On Presenting Claims, Tara J. Melish

Tara Melish

This book offers human rights practitioners and scholars a lens into strategies and arguments for the protection of economic, social and cultural rights before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, particularly through the regional system's individual petitions process. It systematically compiles the regional bodies' major statements on social rights from the 1960s through 1999, describes the system's procedures, and offers strategic pathways and arguments for finding social rights protections solidly grounded in each of the regional system's major human rights instruments. It also offers a model petition and provides strategic advice on framing …

Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish

Tara Melish

An important debate is currently underway in the inter-American human rights system involving the proper approach litigators, adjudicators, and advocates should take to supranational litigation of economic, social and cultural rights. Centered on questions of jurisdiction and the proper characterization and limits of justiciability, its resolution has tremendous implications for the tools available to on-the-ground advocates, their real-world effectiveness and sustainability in adjudicatory and advocacy contexts alike, and the rationalization of the system's developing jurisprudence over the long-term.

This article book-ends a trilogy of pieces appearing in the NYU Journal of International Law and Politics by two sets of authors, …

The Corporate Face Of The Alien Tort Claims Act: How An Old Statute Mandates A New Understanding Of Global Interdependence, Lorelle Londis

Maine Law Review

In the past thirty-five years, international human rights lawyers and, more recently, international environmental lawyers, have been invoking the Alien Tort Claims Act (ATCA) as a tool to prosecute human rights abuses committed abroad by transnational corporations (TNs) in U.S. federal courts. The ATCA provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although plaintiffs' lawyers have experienced some success in the human rights context, most claims of environmental abuses have failed. In all these …

For The Greater Good: The Subordination Of Reproductive Freedom To State Interests In The United States And China, Marisa S. Cianciarulo

Akron Law Review

This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal …

Brief Of International Law Scholars And Non-Governmental Organizations As Amici Curiae In Support Of Appellees In International Refugee Assistance Project V. Trump, 2017 U.S. 4th Cir., Amanda Frost

Amicus Briefs

No abstract provided.

Invisible Women: Syrian Victims Of Gender-Based Violence As A Particular Social Group In U.S. Asylum Law, Sarah Dávila-Ruhaak

Sarah Dávila-Ruhaak

In the midst of the worst humanitarian crisis of our time, in Syria, we have seen extreme suffering by millions who have been summarily executed, tortured, imprisoned, raped, starved, and bombed with chemical weapons. Specifically, we have seen that women have been the target of gender-based violence in the conflict by and with the acquiescence of the Assad regime forces and by opposition groups. Women have been human shields; hostages for the bargaining of prisoner release; and victims of sexual violence and exploitation, forced marriage, and other forms of violence such as honor killings. This gender-based violence has rendered women …

The Syrian Refugee Crisis And The European Union: A Case Study Of Germany And Hungary, Simone-Ariane Schelb

FIU Electronic Theses and Dissertations

This thesis explores the impact of the Syrian refugee crisis on the Common European Asylum System. It evaluates the extent to which the European Union was able to implement a common asylum system, identifies discrepancies between different European countries, primarily Germany and Hungary, and briefly examines the roots of these differences. To this end, the structure of the international refugee protection regime and the German and Hungarian asylum systems are analyzed. Furthermore, the thesis explores how the governments of the two countries perceive the rights of refugees and how their views have affected their handling of the crisis. The case …

Human Rights And Disability, Lowell Ewert

Biennial Conference: The Social Practice of Human Rights

In every context where racism, poverty, inequality, religious intolerance, or any other form of exploitation is present, persons with disabilities within the category experiencing discrimination are almost always worse off than their non-disabled peers. In this way, disability has the practical impact of magnifying discrimination and multiplying harmful practices. There is even evidence in some places that persons with disabilities have been deliberately targeted with violence. Additionally, sexual violence against disabled women and girls can be especially cruel.

Efforts to combat discriminatory practices that are primarily focused on addressing the concerns of the able-bodied often further exacerbate the general indifference …

Homophobia, Human Rights And Diplomacy, Douglas Janoff

Biennial Conference: The Social Practice of Human Rights

Multilateral human rights diplomacy is a product of the triad relationship between intergovernmental organizations (IGOs), civil society organizations (CSOs), and states. This paper examines the emergence of LGBT rights within the context of the UN human rights system. Recently, the global debates around LGBT rights have become much more public and increasingly complex: Ministers, leaders, and even the UN Secretary-General routinely call on states to do more to protect sexual minorities. Countries such as Uganda and Russia are labeled “homophobic” — not just by human rights activists, but by other states. These “accusations” are delivered both bilaterally and in multilateral …

Gay Teachers In Catholic Schools: A Conflict Of Human Rights, Ish Ruiz

Biennial Conference: The Social Practice of Human Rights

What happens when a person’s exercise of a human right conflicts with another’s enjoyment of a human right? Such is the case when a gay teacher in a Catholic school is fired as the school exercises its right to religious freedom in order to ensure its teachers live lives consistent with Church teaching.

As religious institutions, Catholic schools are protected by a ministerial exception that offers legal immunity to Catholic educational institutions that fire gay and lesbian teachers (teachers are sometimes considered “ministers” by the courts). In many states these firings on the basis of sexual orientation or marital status …

Candidates Flock To Courthouse To File For 2018 Election, Brad Stacy

Media Collection

No abstract provided.

Interrogating Rights: How The United States Is Not Complying With The Racial Equality Treaty, Malia Lee Womack

Biennial Conference: The Social Practice of Human Rights

In 1994, the United States ratified the United Nations’ core anti-racism treaty, ICERD. Although it has been more than two decades since the United States became a member to the multilateral agreement, a wide range of scholarship determines that the nation is not in compliance with the treaty. Little of this research focuses on gender. This paper intervenes with the research by conducting a gendered analysis, with a focus on African American women, of key areas where the US is not meeting its duties to the multilateral agreement.

This manuscript proves that, first, the United States does not comply with …

Indigenous Rights In The Trump Era, Tereza M. Szeghi

Biennial Conference: The Social Practice of Human Rights

This paper examines the ways in which the Dakota Access Pipeline and the related protests were divergently covered in mainstream versus alternative news sources and what this divergent coverage suggests about the current status of American Indian affairs and the role of American Indians in the U.S. cultural imaginary. Moreover, the paper will address the status of American Indian tribal sovereignty in the Trump era more broadly, with particular focus on American Indians' treaty-related rights to self-determination in the use of their lands.

Gender, Displacement And Transitional Justice, Sinead Mcgrath

Biennial Conference: The Social Practice of Human Rights

In the past fifteen years, there has been huge emphasis on the need for gendered mechanisms dealing with both forced migration and peacebuilding. The UN landmark resolution on Women, Peace and Security (S/RES/1325) and the gender-mainstreaming of the 1951 Refugee Convention have urged all actors to increase the participation of women in peacebuilding and their protection in instances of displacement. An underdeveloped link between these issues has not been addressed by the academic community, particularly when looking at societies in transition and the relationship of displaced women to international migration organisations in the context of transitional justice. This study aims …