Law Commons^™

Confronting State Violence: Lessons From India's Farmer Protests, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored …

Effectiveness Of The Existing International Humanitarian Law Provisions In Protecting The Natural Environment During Internal Armed Conflicts, Joharah M. Alkahtani

Dissertations & Theses

The environment is inherently at risk in any armed conflict and the natural environment is always a victim of wars. In order to properly protect the environment, the international community must explicitly recognize the civilian nature of the environment and bar all damages to it notwithstanding its extent, longevity and severity. The current study focuses on the environmental protection during armed conflicts. In World War I, parties employed the indiscriminate use of chemical weapons as a way of gaining military advantage over their enemies. The world responded by adopting the Convention on the Prohibition of the Development, Production, Stockpiling and …

Enter At Your Own Risk: Criminalizing Asylum-Seekers, Thomas M. Mcdonnell, Vanessa H. Merton

Elisabeth Haub School of Law Faculty Publications

In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that …

Targeted Capture, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

This Article confronts one of the most difficult and contested questions in the debate about targeted killing that has raged in academic and policy circles over the last decade. Suppose that, in wartime, the target of a military strike may readily be neutralized through nonlethal means such as capture. Do the attacking forces have an obligation to pursue that nonlethal alternative? The Article defends the duty to employ less restrictive means (“LRM”) in wartime, and it advances several novel arguments in defense of that obligation. In contrast to those who look to external restraints--such as those imposed by international human …

Environmental Human Rights In New York’S Constitution, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

There is an environmental case to be made in favor of convening a Constitutional Convention. On the 200th anniversary birth of Henry David Thoreau, we can remember his admonition: “Live in each season as it passes; breathe the air, drink the drink, taste the fruit, and resign yourself to the influence of the earth.” What has this to do with the Constitution?

Address At The Lincoln Charter Of The Forest Conference, Bishop Grosseteste University: The Charter Of The Forest: Evolving Human Rights In Nature, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

This conference is a singular event, long over due. It has been 258 years since William Blackstone celebrated “these two sacred charters,”1 Carta de Foresta and Magna Carta, with his celebrated publication of their authentic texts. In 2015, the Great Charter of Liberties enjoyed scholarly, political and popular focus. The companion Forest Charter was and is too much neglected.2 I salute the American Bar Association, and Dan Magraw, for the ABA’s educational focus of the Forest Charter, as well as Magna Carta. Today we restore some balance with this conference’s searching and insightful examination of the Forest Charter’s significance.

Tampon Taxes, Discrimination, And Human Rights, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This Article makes two contributions to the study of taxation. First, it argues that the “tampon tax”--an umbrella term to describe sales, VAT, and similar “luxury” taxes imposed on menstrual hygiene products--illustrates how deeply embedded gender is in legal structures such as the tax system that are thought to be neutral. Second, this Article posits that tax reform is an essential tool in achieving both gender equality and human rights. In recent months, activists around the globe have harnessed the power of the Internet to raise awareness of the tampon tax. In response to pressure from constituents, five states and …

What's Going On In Our Prisons?, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Additional governmental oversight is urgently needed to truly change the culture of a system that holds 53,000 inmates across 54 prisons in New York State. What goes on inside these prisons is largely hidden from view, and there is little accountability for wrongdoing. The State Legislature should follow the A.B.A.’s guidance and establish a monitoring body with unfettered access to prison facilities, staff, inmates and records in announced or unannounced visits.

Foreign Assistance Complicity, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

When does a government’s provision of assistance to foreign armed groups cross the line from legitimate foreign policy to criminal aiding and abetting of those who use the aid to commit atrocities? The question presents one of the most difficult dilemmas in criminal justice, one that has deep normative implications and has provoked sharp splits among the U.S. federal courts and international tribunals that have faced it.

In 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) sent shockwaves through international legal circles when it acquitted former Yugoslav Army chief Momčilo Perišić of aiding and …

"I Am Opposed To This Procedure": How Kafka's In The Penal Colony Illuminates The Current Debate About Solitary Confinement And Oversight Of American Prisons, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This is the 100th anniversary of Franz Kafka's In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison's operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight.

At …

The Extraterritorial Application Of Human Rights Treaties: Al-Skeini Et Al. V. United Kingdom (2011), Joseph Sinchak

Pace International Law Review Online Companion

The decade proceeding the 9/11 tragedy has been very unkind to the human rights regime, as many western nations have committed human rights abuses in their mission to combat terrorism. Both the United States and the United Kingdom have been engaged in wars in Iraq and Afghanistan, where they perpetrated terrible crimes and violated important tenants of international law. These violations, ranging from allegations of torture to wrongful deaths, are prohibited by human rights law. In fact, human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) were …

The European Union And The Abolition Of The Death Penalty, Christian Behrmann, Jon Yorke

Pace International Law Review Online Companion

The European Union has become a leading regional force in the progress towards a world free of state sanctioned judicial killing in the form of the death penalty. This article investigates how the EU has evolved its abolitionist position. It analyzes the development of the region’s internal policy beginning in the European Parliament, to the rejection of the punishment being mandated as a Treaty provision, which evolves into an integral component of the external human rights project. The EU has now formulated technical bilateral and multilateral initiatives to promote abolition worldwide. This is most clearly evidenced in the EU playing …

The Global Land Rush: Markets, Rights, And The Politics Of Food, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In the past five years, interest in purchasing and leasing agricultural land in developing countries has skyrocketed. This trend, which was facilitated by the 2008 food crisis, is led by state and private investors, both domestic and foreign. Investors are responding to a variety of global forces: Some are securing their own food supply, while others are capitalizing on land as an increasingly promising source of financial returns. Proponents argue that these investments can support economic development in host states while boosting global food production. But critics charge that these “land grabs” disregard land users' rights and further marginalize already …

Dynamic Governance Innovation, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This article frames environmentally sound innovation in the context of transnational network theory with the goal of setting forth a preliminary framework for international legal policy coherence. I consider how network dynamics can facilitate broad diffusion of environmentally sound technologies, concluding that what appears to be fragmented trade, environment, and human rights regimes are indeed sustainable development building blocks with which to achieve dynamic governance. Collaborative environmentally sound innovation networking may be able to shepherd whole renewable energy sectors across the innovation valley of death and help turn a global responsibility to ramp up green technology into a global initiative …

Mossville Environmental Action Now V. United States: Is A Solution To Environmental Injustice Unfolding?, Jeannine Cahill-Jackson

Pace International Law Review Online Companion

This article chronicles and analyzes the Inter-American Commission on Human Rights (IACHR) case resulting from the petition: Mossville Environmental Action Now v. United States. Part I illuminates the harms faced by the residents of Mossville and the little that has been done to remedy their situation. It provides an in-depth look at the data that has been collected by the U.S. government and analyzed by the members of Mossville Environmental Action Now, which shows levels of dioxin contamination in both the people and the environment of Mossville and their significance. Part I also discusses environmental racism and environmental justice …

Indigenous Communities In Peru And The Peruvian Nation State, Jenna Rose Scanlon

Honors College Theses

In today’s society there are indigenous communities that live and thrive the way that their ancestors did. These people try and maintain their culture while modern society tries to impose their beliefs and practices on them. Peru is a country that is quickly developing and westernizing. These indigenous communities in Peru are considered citizens but do not receive the rights that are granted to them by their constitutions. They have their land unlawfully seized, they are forced into menial jobs where they are abused and exploited, they do not receive adequate education if any, and they are excluded from the …

The Human Right To Water And Sanitation: From Political Commitments To Customary Rule?, Gonzalo Aguilar Cavallo

Pace International Law Review Online Companion

The human right to water and sanitation is not explicitly recognized in the International Bill of Human Rights. Some scholars deny the legal existence of this right. However, over the last three decades, a number of legal recognitions of certain aspects of this right in specific universal and regional human rights treaties have allowed scholars to evidence the existence of the legal right to water and sanitation. In addition, an increasing number of high level international documents and declarations explicitly recognize the existence of this right, as reflected in declarations of the European Union and the General Assembly of the …

Climate Change: Human Rights In The Times Of Climate Displacement, Shakeel Kazmi

Dissertations & Theses

The increasing numbers of climate migrants caution that the dilemma of climate refugees is a well-substantiated concern of today not tomorrow. In 2011 large-scale flooding and landslides affected more than one million people in the Philippines. More than twenty million people were displaced after massive floods in Pakistan in 2010. A significant number of future projections show that climate change will lead tens, and perhaps hundreds, of millions of people to leave their homes and in some cases their countries. The crisis of human displacement, which entails immediate actions, raised the questions of legal and moral obligations to protect the …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

Sow What You Reap? Using Predator And Reaper Drones To Carry Out Assassinations Or Targeted Killings Of Suspected Islamic Terrorists, Thomas M. Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This article explores whether targeted killing of suspected Islamist terrorists comports with international law generally, whether any special rules apply in so-called “failed states,” and whether deploying attack drones poses special risks for the civilian population, for humanitarian and human rights law, and for the struggle against terrorism. Part I of this article discusses the Predator Drone and its upgraded version Predator B, the Reaper, and analyzes their technological capabilities and innovations. Part II discusses international humanitarian law and international human rights law as applied to a state’s targeting and killing an individual inside or outside armed conflict or in …

Imagining A Right To Housing, Lying In The Interstices, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article explores whether the philosophical and constitutional predicates for the recognition of a right to housing exist in some form in our nation’s jurisprudence and political order. Part II traces the evolution of the concept of “rights” from that embraced by the country’s founders to the present, how such a right to housing would fit within the dialogue of property rights, the notion of ownership, and the interest in liberty. Part III discusses the historical role of the court in protecting housing. Part IV discusses the notion of protecting rights to housing under existing equal protection and due process …

Support And Defend: Civil-Military Relations In The Age Of Obama, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

Part I discusses A More Perfect Military: How the Constitution Can Make Our Military Stronger by law professor Diane Mazur, a new book that examines recent civil-military relations in the United States. Her carefully constructed work maintains that since the Vietnam era, the United States Supreme Court has hewn the armed forces from general society in order to create a separate—and more socially conservative—sphere. Part II discusses The Decline and Fall of the American Republic by constitutional scholar Bruce Ackerman, a wise and wide-ranging book that argues that the nation’s polity is in decline and that the increasingly politicized armed …

Unsex Cedaw, Or What's Wrong With Women's Rights, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Part I discusses why CEDAW continues to be relevant as the primary source of international law on sex discrimination. Until the advent of the Convention on the Rights of the Child (CRC), CEDAW was the most widely-subscribed international treaty. Some of the draft language of CEDAW reflects the tension between category and identity and how "women" won the debate. Part II contrasts CEDAW with the Convention for the Elimination of Racial Discrimination (CERD). It points to the identitarian focus of CEDAW as a core reason for its failures. Had CEDAW reflected a category focus, as CERD did, it would more …

The Truth Behind Gitmo, Scott Horton

Pace International Law Review Online Companion

No abstract provided.

“The Slow Creep Of Complacency”: Ongoing Challenges For Democracies Seeking To Detain Terrorism Suspects, Maureen T. Duffy

Pace International Law Review Online Companion

This article assesses shifting presumptions by three democracies -- the United States, Canada, and the United Kingdom – all of whom appear to have permanently adopted some alterations to their detention practices for certain terrorism-related cases since the attacks of September 11, 2001 (hereinafter “9/11”). A review of executive, legislative and judicial outcomes in these three countries often reveals an ongoing tension between the judiciary and the other branches of government, with the judiciary frequently citing to traditional constitutional principles to reassert the primacy of individual liberties and fair trial guarantees. In spite of such rulings, however, the advance towards …

Habeas Corpus In Times Of Emergency: A Historical And Comparative View, Brian Farrell

Pace International Law Review Online Companion

No abstract provided.

The Ripple Effect: Guantanamo Bay In The United Kingdom's Courts, C.R.G. Murray

Pace International Law Review Online Companion

The human rights abuses suffered by detainees held at Guantánamo Bay have dominated many of the cases before the United Kingdom’s courts. The Human Rights Act of 1998, still relatively new to the statute book, played a central role in the detainees’ arguments. The ultimate court decisions, however, often relegate such factors to the background of the case. This article examines why the deciding courts declined to develop the law of diplomatic protection on the basis of human rights concerns, and why such arguments continue to be employed by detainees. Furthermore, the article assesses why the English courts have shown …

Special Investigation Techniques, Data Processing And Privacy Protection In The Jurisprudence Of The European Court Of Human Rights, Toon Moonen

Pace International Law Review Online Companion

No abstract provided.

Islam & International Criminal Law: A Brief (In) Compatibility Study, Michael J. Kelly

Pace International Law Review Online Companion

This paper explores why that incompatibility between Islam and international criminal law persists and considers recommendations for mitigating that dynamic. Why is this important? Primarily because the Western-influenced international criminal law apparatus and the Muslim world are likely to collide more often in the future. If a war crimes tribunal is established in Afghanistan, or if the trial of Syrian agents for the assassination of Lebanon’s former prime minister goes forward, it is imperative that Islamic societies touched by those processes feel a sense of “buy-in” or participation that is meaningful for them. Otherwise, it becomes the same old story …

Climate Change Displacement To Refuge, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.