Law Commons^™

Authority To Proscribe And Punish International Crimes, Guyora Binder

Journal Articles

Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow …

Introductory Note To The Optional Protocol To The International Covenant On Economic, Social And Cultural Rights, Tara J. Melish

Journal Articles

This Introductory Note to the publication in ILM of the newly-adopted Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) seeks to put the primary source document in proper context by briefly explaining its history, content, and significance in international law. The Note is accompanied by the text of the OP-ICESCR, adopted by the U.N. General Assembly on December 10, 2008 to commemorate the 60th anniversary of the Universal Declaration of Human Rights. The OP creates an individual complaints procedure for alleged violations of the ICESCR, rectifying a thirty year asymmetry in human rights treaty law.

Just Back From The Human Rights Council, Makau Mutua

Journal Articles

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 …

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

Journal Articles

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 U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish

Journal Articles

On December 13, 2006, the United Nations General Assembly unanimously adopted the Convention on the Rights of Persons with Disabilities. The Convention is historic and path-breaking on several levels, both in protection terms for the world's 650 million persons with disabilities who may now draw upon its provisions in defense of their internationally-protected rights, and in relation to the unprecedented level of civil society input and engagement in the negotiation process. This sustained and constructive engagement has given rise to a dynamic process of dialogue, cooperation, and mutual trust that will fuel monitoring and implementation work, at national and international …

Environmental Certification Systems And U.S. Environmental Law: Closer Than You May Think, Errol E. Meidinger

Journal Articles

Many industrial organizations are committing to achieve improved environmental performance through non-governmentally instituted environmental certification programs. Such programs typically define the environmental standards that firms must meet as well as the organizational mechanisms required to achieve and "certify" compliance. Well known examples include the chemical industry's "Responsible Care" program, the International Organization for Standardization's "ISO 14000" environmental management program, and the Forest Stewardship Council's well-managed forests program.

Because of their ostensibly private and voluntary nature, environmental certification programs are often presumed to be separate and distinct from law. In fact, however, they are deeply intertwined with law, and seem likely …

Critical Race Theory And International Law: The View Of An Insider-Outsider, Makau Mutua

Journal Articles

This article contends that international law, like national law, is captive to the racial biases and hierarchies that hide injustice under the pretext of legal neutrality and universality. It argues that international law is tormented by racist and hegemonic asymmetries that govern the international order. The piece posits that international law could benefit greatly from the method of critical race theory in unpacking the pathologies of power and race that define it. It focuses on the use of international law to conceive and buttress the exploitation and marginalization of the North by the South. It calls for a reconstruction of …

Cultural Relativism And Cultural Imperialism In Human Rights Law, Guyora Binder

Journal Articles

The "Universalism-Cultural Relativism" debate proceeds on the assumption that international human rights law requires the identification of fundamental principles of justice that transcend culture, society, and politics. Thus, the debate presumes that to assert the cultural relativity of justice is to deny the legitimacy of international human rights law. This comment challenges this presumed linkage between international human rights law and universally valid criteria of justice. Human rights standards are obviously culturally relative, and human rights law is obviously a Western institution. But so are the kind of states that human rights law sets out to restrain. The nation-state ideal …

Why Redraw The Map Of Africa: A Legal And Moral Inquiry, Makau Wa Mutua

Journal Articles

This article questions the legitimacy of the African state and the imperial cartography on which it is based. It argues that African states are conceptually faulty because they are the crude and thoughtless handiworks of European colonial powers. It is the artificiality of the African state that has been responsible for its failure to cohere into a nation that is viable. The piece argues for geographic and normative re-articulation of the African state - by smashing the current states - to endow them with moral, political, and legal legitimacy. It concludes that democratic entities are unlikely to develop where pre-colonial …

Post-Totalitarian Politics, Guyora Binder

Journal Articles

This review essay examines two Hegelian responses to the unexpected collapse of communism, both published in 1992: The End of History by Francis Fukuyama and Civil Society and Political Theory by Jean Cohen and Andrew Arato. Fukuyama’s book famously predicted that the triumph of markets would lead to the end of armed conflict. Cohen & Arato celebrated the role of civil society activists in overthrowing communism, and proposed that first world progressives follow a similar path to reform. This review essay argues that Fukuyama’s interpretation of Hegel as a cold war liberal ignores Hegel’s warnings about the anomic and antisocial …

The Case For Self-Determination, Guyora Binder

Journal Articles

This lecture offers an analysis and defense of the right of self-determination of peoples. The argument begins by analyzing self-determination into its universalist and nationalist components. The universalist component of self-determination is satisfied wherever institutions of government are majoritarian. The nationalist component of self-determination is satisfied to the extent that institutions of government are identified with particular communities. The universalist compoent is now widely recognized as an authoritative principle of international law. The nationalist component remains controversial, particularly outside of the particular context of the dismantling of European colonial empires. The lecture proceeds to defend the nationalist component by attacking …