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, …

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 …

El Derecho De Acceso A La Justicia Civil En Chile., Ricardo Lillo, Macarena Vargas

Ricardo Lillo

Group Rights: A Defense, David Ingram

David Ingram

Human rights belong to individuals in virtue of their common humanity. Yet it is an important question whether human rights entail or comport with the possession of what I call group-specific rights (sometimes referred to as collective rights), or rights that individuals possess only because they belong to a particular group. The Universal Declaration of Human Rights (UDHR) says they do. Article 15 asserts the right to nationality, or citizenship. Unless one believes that the only citizenship compatible with a universal human rights regime is cosmopolitan citizenship in a world state – a conception of citizenship that is not countenanced …

Roundtable – Teaching Human Rights: Challenges And Best Practices, Shayna Plaut, Kristi Kenyon, Joel Pruce, William Simmons

Joel Pruce

Over the past 20 years, courses addressing human rights have grown dramatically at both the undergraduate and graduate levels worldwide. Many of these courses are housed in specific disciplines, focus on specific issues, and require practical experience in the form of internships/practicums. Amid this growth there is a need to reflect on teaching human rights including the challenges, fears, and best practices. Recognizing that education takes place inside and outside a classroom, this roundtable brings together scholars teaching human rights in a variety of settings to examine the current state of university human rights education. This includes a discussion of …

Research Offers Tough Love To Improve Human Rights Practices, Joel Pruce

Joel Pruce

We know what it means to practice a skill such as juggling or dancing, but what does it mean to "practice" human rights? Contributions to OpenGlobalRights (OGR), since its inception, have gravitated around critique of human rights practices by focusing on advocacy and activism, cultivating debates that address the contemporary dilemmas facing human rights movements worldwide. The launch of OGR four years ago is a symptom of what I’ve referred to elsewhere as a “practice turn” in the scholarly field of human rights—one that takes human rights practice as its subject, forges space for scholar-practitioner collaboration and communication, and focuses …

Introduction To The Vienna Declaration And Program Of Action Of Africans And African Descendants, Vernellia R. Randall

Vernellia R. Randall

No abstract provided.

The Anglo-Latin Divide And The Future Of The Inter-American System Of Human Rights, Paolo G. Carozza

Paolo G. Carozza

A former President of the Inter-American Commission on Human Rights, Paolo Carozza draws on his personal experience to identify and propose solutions for a key flaw in the Inter-American Human Rights System: the division between English-language member states and states with Latin-based languages. Terming this division "The Anglo-Latin Divide," Carozza traces the division not only to linguistic difference, but also to differences in legal traditions. He explains how the differences between Anglo tradition of common law and the Latin tradition of civil law manifest in both substantive and procedural divides within the Inter-American Human Rights system, including in sensitive areas …

Amicus Curiae Agosto 9 2017 Centro De Derechos Humanos Auwcl.Pdf, Macarena Sáez

Macarena Saez

Understanding "Hostage-Diplomacy": The Release Of Wei Jingsheng And Wang Dan, Hari M. Osofsky

Hari Osofsky

China recently has released two of its most prominent dissidents, Wei Jingsheng and Wang Dan, into exile in the United States. The releases corresponded to major United States-Chinese diplomatic initiatives without broader gains in allowing political dissent, causing a number of commentators to refer to them as "hostage-diplomacy."' This New Development explores what it means to think of the releases in this way and the implications for future strategic engagement with China.

Sex, Tax And The Charter: A Review Of Thibaudeau V. Canada, Lisa Philipps, Margot Young

Lisa Philipps

Section 15 of the Charter offers the promise of redressing many systemic inequalities in the law. This paper considers the implications of section 15 for the taxation of child support payments, an issue raised in the Thibaudeau case. While endorsing the Federal Court of Appeal's decision that the current tax regime is unconstitutional, the authors take issue with the Court's reasoning in reaching this result. In the first part of their paper, the authors address a number of shortcomings in the Court's equality analysis, arguing that the process employed by the Court ignored critical aspects of equality theory. The process …

The Information Regulation Of Business Actors, Kishanthi Parella

Kish Parella

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy …

Revisiting The Application Of Section 7 Of The Charter In Immigration And Refugee Protection, Gerald Heckman

Gerald Heckman