Law Commons^™

Human Rights Enforcement In The 21st Century, Douglas L. Donoho

ExpressO

The international human rights system’s approach to enforcement and implementation of human rights has proven unrealistic in a world characterized by oppression, poverty and armed conflict. In this essay, I suggest that traditional approaches to enforcement, while serving some important functions, are inadequate to meet the challenge of effectively realizing human rights in the 21st Century. These inadequacies include a variety of institutional, conceptual and jurisprudential weaknesses, including: (1) failure to develop a coherent overall structure with institutions whose attributes are likely to promote the legitimacy of international decision-making and encourage state respect; (2) refusal to make important distinctions among …

Appeasing The International Conscience Or Providing Post-Conflict Justice: Expanding The Khmer Rouge Tribunal’S Restorative Role, Nema Milaninia

ExpressO

Three decades after the Cambodian civil war, the leaders of the Khmer Rouge will finally be brought before an internationalized domestic tribunal. While the majority of those most responsible have died off or received immunity for their conduct, the Khmer Rouge Tribunal has the historic possibility of reaffirming the importance of international criminal justice and providing an historical narrative of the crimes committed and victims created.

This commentary evaluates the importance of restoration in transitional justice and the importance victims and witnesses play in post-conflict justice. This article will argue that previous post-conflict remedies required a balance of restorative and …

The Unexplored Option: Jewish Settlements In A Palestinian State, David M. Phillips

ExpressO

The withdrawal of Israeli settlers and soldiers from the Gaza Strip, the recent Hamas victory in the Palestinian Authority elections, and the results of the Israeli elections in which the newly-formed Kadima Party received a plurality of the votes have all focused attention upon the fate of Israeli Jewish settlements on the West Bank. Most parties consider the continued existence of the settlements as precluding a peaceful resolution of the Israeli-Palestinian conflict and their establishment as having violated international law. The assumption that their presence precludes peace is premised primarily on the assumption that Israeli settlements will eventually mean Israeli …

Linking Natural Resource Exploitation And Primary Health Care In Developing Countries, Alexandros Zervos

ExpressO

In exchange for loans from international financial institutions, natural resources companies should be made contractually responsible for achieving specific primary health care targets in certain developing countries they invest in. Primary health care is crucial for social/economic development, but many developing countries’ governments fail in its provision. Any effort to make natural resources companies responsible for primary health care would need to focus on goal setting, monitoring and legal enforcement. The latter would include both monetary sanctions and incentives tied to specific targets. The challenges facing this project are significant, but none are problematic enough to prevent its implementation.

Forced Pregnancy And The Icc, Milan Markovic

ExpressO

No abstract provided.

In The Best Interest Of The Child, Ellen L. Buckwalter

ExpressO

Each year more than 200,000 children in the United States are abducted by family members. When a child is abducted across international borders, the difficulties are compounded. Since the late 1970s, The Department of State’s Office of Children’s Issues has been contacted in approximately 16,000 cases involving children who were either abducted from the United States or prevented from returning to the U.S. by one of their parents.

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) adopted on October 24, 1980, reflects a worldwide concern about the harmful effects that parental kidnapping has on children …

The Freedom To Manifest Religious Belief: An Analysis Of The Neccesity Clauses Of The Iccpr And The Echr, Todd Parker

ExpressO

This paper examines Article 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention on Human Rights. Both documents affirm freedom of religion as a fundamental human right, yet both recognize the need for restrictions on freedom of religion when “necessary.” The paper discusses the text of Articles 18 and 9, as well as European Court of Human Rights and Human Rights Committee cases interpreting and applying the Articles. The paper then analyzes several current laws restricting religious freedom on necessity grounds as to whether the restrictions are legitimate or illegitimate under the …

Arms Embargoes And The Right To Self-Defense In International Law , Matthew D. Vandermyde

ExpressO

Over the past few decades, a number of nations have argued that the mandatory arms embargoes imposed against them violated their right to self-defense. In some cases the Security Council has responded by adjusting the embargo to exclude its application to arms destined for the government, such as in Rwanda and Sierra Leone. But in other cases the Security Council has rejected the argument and refused to lift or adjust the embargo, such as in Bosnia and Liberia. In December of 2005, Somalia put forth a similar line of argument, asking the Security Council to lift the arms embargo imposed …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …

Putting Regulation Before Responsibility: Towards Binding Norms Of Corporate Social Responsibility, Thomas F. Mcinerney

ExpressO

Globalization of business has heightened concerns regarding corporate conduct in developing countries. Critics have charged that multinational firms in particular have exported social harms involving labor, the environment, bribery, and human rights to jurisdictions outside of their home countries. Opportunities for regulatory arbitrage and the associated collective action problem such opportunities suggest, highlight the need for strong regulatory responses to these issues. Rather than prioritize the strengthening of national or international regulatory actors to address these social harms, voluntary corporate social responsibility initiatives have emerged as a favored response within the international community. This article undertakes a critical examination of …

Law, Narrative, And The Continuing Colonist Oppression Of Native Hawaiians, David Barnard

ExpressO

The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians’ struggles for redress and reparations for a century of dispossession and impoverishment at the hands of the United States. Second, it demonstrates in the concrete case of Hawaii the power of a particular historical narrative—when it is accepted uncritically by the Supreme Court—to render the law itself into an instrument of colonial domination. Third, it …

Refugee Security And The Organizational Logic Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

While the refugee protection system is one of international law’s most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), generally have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political …

On The Legal Construction Of Ethnic Cleansing, Timothy V. Waters

ExpressO

On the Legal Construction of Ethnic Cleansing

Timothy William Waters, Univ. Mississippi School of Law

Abstract

What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

The Role Of Reservations And Declarations Before The Inter-American Court Of Human Rights: The Las Hermanas Serrano Cruz Case And The Future Of Inter-American Justice, Jessica L. Tillson

ExpressO

Las Hermanas Serrano Cruz is a landmark case in the jurisprudence of the Inter-American Court of Human Rights because it excludes a large body of arguably valid claims from meaningful adjudication within the inter-American system. In the Las Hermanas Serrano Cruz decision on preliminary objections, the Court upheld El Salvador’s restriction to rationae temporis. Although the State’s restriction was improper both substantively and procedurally, the Court held it to be valid under the American Convention on Human Rights by misclassifying it as a declaration rather than a reservation. This mistake not only proved detrimental to the Las Hermanas Serrano Cruz …

Superstition-Based Injustice In Africa And The United States: The Use Of Provocation As A Defense For Killing Witches And Homosexuals, Jennifer Dumin

ExpressO

This Article examines two different instances where strong cultural and religious beliefs suggest that an individual is justified in taking another’s life. Focusing primarily on South Africa and the United States, it argues that the rationale used to defend those who kill suspected witches and those who kill suspected homosexuals is the same – merely because a criminal holds a belief that the victim is evil, the criminal is somehow entitled to a lesser punishment. In the United States, those who readily recognize the absurdity of the witchcraft defense may have some difficulty in recognizing the same level of absurdity …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

The Practice And Legality Of Rendition, Katherine R. Hawkins

ExpressO

“Rendition” is the United States’ policy of sending terrorism suspects to be interrogated in Middle Eastern countries that practice torture.

This Article introduces the subject by describing a complaint filed in a lawsuit by Canadian citizen Maher Arar. The United States sent Arar from John F. Kennedy airport to Syria, where he was tortured and was held in a grave-sized cell for nearly a year. Arar alleges that his transfer violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

Arar’s lawsuit may be dismissed before the court reaches the substance of his claims. But …

The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster

ExpressO

This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.

The article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.

The article then examines …

Modern Day Slavery In Our Own Backyard, Ellen L. Buckwalter, Meredith S. Salvaggio, Susan L. Pollet, Maria Perinetti

ExpressO

Trafficking in persons is one of the fastest growing areas of international criminal activity. Each year an estimated 600,000 – 800,000 human beings are bought, sold or forced across the world’s borders. Approximately 2.5 million men, women and children are victims of trafficking at any point in time throughout the world. Approximately 14,500 – 17,500 individuals are trafficked annually into the United States, making the United States the third largest destination country in the world for victims of human trafficking.

In order to fight trafficking in the United States effectively, legislation at the state level, in addition to the federal …

Broken Borders: Decanas V. Bica, And The Standards That Govern The Validity Of State Measures Designed To Deter Undocumented Immigration, Joshua J. Herndon

ExpressO

No abstract provided.

Scholarly And Scientific Boycotts Of Israel: Abusing The Academic Enterprise, Kenneth Lasson

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

International Responsibility For Human Rights Violations By American Indian Tribes, Klint A. Cowan

ExpressO

The American Indian tribes have a unique status in the law of the United States. They are characterized as ‘sovereigns’ that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. They enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and US international human rights obligations. This essay explores this connection. It examines whether the tribes may …

Child Laundering: How The Intercountry Adoption System Legitimizes And Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children, David M. Smolin

ExpressO

This article documents and analyzes a substantial incidence of "child laundering" within the intercountry adoption system. Child laundering occurs when children are taken illegally from birth families through child buying or kidnapping, and then "laundered" through the adoption system as "orphans" and then "adoptees." The article then proposes reforms to the intercountry adoption system that could substantially reduce the incidence of child laundering.

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Rfk, Day Of Affirmation Speech And Human Rights In America, Stuart Weinstein

ExpressO

An examination of Robert Kennedy historic Day of Affirmation speech made forty years ago. Is the role he envisioned for the US to play in international affairs and in advancing the cause of freedom and social justice for all humanity relvant in a post-Iraq abu Gharaib world?

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …