Law Commons^™

On Disposable People And Human Well-Being: Health, Money And Power, Berta E. Hernández-Truyol

UF Law Faculty Publications

The foundational premise of this essay is that health and well-being are human rights issues. My focus on this theme, specifically within the human rights paradigm, is new, passionate, and personal. On December 15, 2005, just three months before the conference that prompted the writing of this essay, I lost my partner of over 20 years. She fought a valiant, strong, and dignified fight against cancer--a journey I traveled with her. During that time I learned much about health systems and health care. Most saliently, notwithstanding the reality of the extraordinarily good care she ultimately received, I realized there is …

The Iraqi High Criminal Court: Controversy And Contributions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes …

Human Rights And Due Process Of Law, Donald E. Wilkes Jr.

Popular Media

One of our constitutional rights, the right to due process of law, is terra incognita to most Americans, even though it is one of the most important constitutional rights. This article discusses the history of this fundamental right.

Old Poison In New Bottles: Trafficking And The Extinction Of Respect, Winston P. Nagan, Alvaro De Medeiros

UF Law Faculty Publications

The new form of slavery comes by that relatively innocuous title, “trafficking.” Trafficking is an illustration of the dynamic character of the social and antisocial forces that conspire to undermine the idea of human dignity in the world community. The forms of crime are in fact dynamic. Frequently the institutional forces behind crime have capital, lethal functionaries, technology, and a capacity to advance criminal interests, both within states and across state lines. To the extent that crime itself is dynamic it must as well be acknowledged that human rights violations in general also have a dynamic character. In short, when …

Anthropology, Human Rights, And Legal Knowledge: Culture In The Iron Cage, Annelise Riles

Cornell Law Faculty Publications

In this article, I draw on ethnography in the particular zone of engagement between anthropologists, on the one hand, and human rights lawyers who are skeptical of the human rights regime, on the other hand. I argue that many of the problems anthropologists encounter with the appropriation and marginalization of anthropology's analytical tools can be understood in terms of the legal character of human rights. In particular, discursive engagement between anthropology and human rights is animated by the pervasive instrumentalism of legal knowledge. I contend that both anthropologists who seek to describe the culture of human rights and lawyers who …

South Korea's National Security Law: A Tool Of Oppression In An Insecure World, Diane B. Kraft

Law Faculty Scholarly Articles

In September 2004, the ruling party in South Korea, along with two opposition parties, called for the abolishment of the 1948 anti-communist National Security Law. The following month, Amnesty International, a long-time critic of the law, officially called for the law's repeal. The law had been enacted in 1948 in response to threats from communist North Korea, but has long been used by the government to silence legitimate opposition in South Korea. This Comment will examine South Korea's National Security Law as viewed by its domestic supporters and critics, as well as by the international community. Part I will consider …

How Just Is The Union's Area Of Freedom, Security And Justice?:An Assessment Of The Normative Status Of International Fundamental Rights In The Union's Legal Order., Stephen Carruthers

Other resources

This thesis argues that international fundamental rights provide the most appropriate measure of justice for the Union’s area of ‘freedom, security and justice’ (AFSJ). However, it is argued that the normative status of international fundamental rights in Union law is undermined by the pursuit of the objective of autonomy of Union law and deficiencies in the legal mechanisms for giving effect to those rights.

This research analyses the sources and normative status of international fundamental rights in Union law, and in particular the AFSJ, both as currently constituted and under the Constitution, and assesses the robustness and effectiveness of the …

Between Rogues And Liberals: Towards Value Pluralism As A Theory Of Freedom Of Religion In International Law, Peter G. Danchin

Faculty Scholarship

No abstract provided.

What's So Special About Transitional Justice? Prolegomenon For An Excuse-Centered Approach To Transitional Justice, David C. Gray

Faculty Scholarship

No abstract provided.

The United States As Global Sheriff: Using Unilateral Sanctions To Combat Human Trafficking, Janie Chuang

Articles in Law Reviews & Other Academic Journals

In recent years, the issue of human trafficking - the recruitment or movement of persons by means of coercion or deception into exploitative labor or slavery-like practices - has moved from the margins to the mainstream political agenda. The rapid proliferation of international, regional and domestic anti-trafficking laws bespeaks universal condemnation of the practice, but belies deep divisions among States over how to define and approach the problem. It is thus significant that the international community was able to reach consensus and conclude a new international law on trafficking - the Palermo Protocol. But just weeks before the signing of …

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

Journal Articles

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, …

Some Middle-Age Spread, A Few Mood Swings, And Growing Exhaustion: The Human Rights Movement At Middle Age, Penelope Andrews

Articles & Chapters

This paper was presented at a symposium, "The Scholar as Activist", dedicated to the work of Nadine Strossen, President of the ACLU. This paper focuses on the subject of international human rights law and the engagement of scholars as activists in this area of law. At fifty-plus years, and therefore soundly middle aged, the global human rights project today provides occasion for reflection and evaluation. This paper observes that human rights have increasingly become the language of progressive politics. In many ways, this focus on human rights globally echoes the struggle for civil liberties and civil rights in the United …

Fact-Finding As A Lawmaking Tool For Advancing Women's Human Rights, Tamar Ezer, Susan Deller Ross

Articles

No abstract provided.

The Right To Food: Holding Global Actors Accountable Under International Law, Smita Narula

Elisabeth Haub School of Law Faculty Publications

Economic globalization represents both an unmet opportunity and a significant challenge for the fulfillment of social and economic rights, including the right to food. While corporate sector accountability and the responsibility of international financial institutions (IFIs) to ensure social and economic rights are now at the forefront of the globalization discourse, greater attention must be paid to how these actors can be held accountable under international law. The existing human rights legal framework is ill-equipped to deal with violations committed by non-state actors, such as transnational corporations (TNCs), and multi-state actors, such as IFIs. Using the right to food as …

Sexual Labor And Human Rights, Berta E. Hernández-Truyol, Jane E. Larson

UF Law Faculty Publications

In this Article, we engage the current human rights debate that dichotomizes prostitution either as a modern form of slavery or as the exercise of the right to work. This framework effectively sets up a coercion/consent polarity. These poles raise fundamental human rights issues; both the prohibition against slavery and the right to work are matters addressed by and central to the international human rights paradigm. Yet we argue in this Article that the human rights issues raised by prostitution cannot properly be studied nor moved towards meaningful resolution in the context of the prevailing polarity. Prostitution in its current …

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

Journal Articles

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 …

Towards A Cosmopolitan Vision Of International Law: Identifying And Defining Cil Post Sosa V. Alvarez-Machain, Christiana Ochoa

Articles by Maurer Faculty

In the wake of the Supreme Court's decision in Sosa v. Alvarez-Machain, future Alien Tort Claims Act (ATCA) litigants seemingly will be asked to demonstrate that the norms giving rise to their actions are violations of clearly established Customary International Law (CIL). Given the mutable character of CIL, especially in the area of human rights, this will surely fuel the already voluminous literature on the content of the CIL of human rights.

While debate will certainly arise over the norms that have been become CIL, significant attention must be also be devoted to the problems inherent in the CIL of …

Book Review. Companies, International Trade And Human Rights By Janet Dine, Christiana Ochoa

Articles by Maurer Faculty

This is a book review of Janet Dine's Companies, International Trade and Human Rights (2005). While this 9-page review is quite positive, it does offer some criticisms of Dine's analysis and views.

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya

Publications

No abstract provided.

Filartiga’S Legacy In An Era Of Military Privatization, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors, privatization …

Safe-Conduct Theory Of The Alien Tort Statute, The, Thomas H. Lee

Faculty Scholarship

In this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a "safe conduct" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. …

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Children And Immigration: International, Local, And Social Responsibilities, Berta E. Hernández-Truyol, Justin Luna

UF Law Faculty Publications

This essay focuses on the human rights of immigrant children, regardless of the legality of their presence within U.S. borders, especially with respect to health, education, and welfare. In that context, the work explores, as the title suggests, the international, local, and social/cultural normative standards that structure the responsibilities -- independently and collectively, that proverbial village -- with respect to children's well-being. We develop these ideas in three parts. First, we address the foundations of the human rights idea and specifically enumerate the particular normative notions, including international treaties that govern children's lives. Next, we discuss immigration in the United …

Torture And Contract, Laura T. Dickinson

GW Law Faculty Publications & Other Works

This essay is a contribution to the War Crimes Research Symposium: "Torture and the War on Terror” at Case Western Reserve University School of Law, October 7, 2005. The symposium raised important questions about the problem of torture and the use of torture in the so-called "War on Terror." In considering this problem, this essay focuses on an aspect of the issue that has only recently received popular and scholarly attention, but that is likely to have profound implications: the privatization of military functions, and specifically, the privatization of torture. Such privatization may, at first blush, seem to render it …

Illegal Peace?: An Inquiry Into The Legality Of Power-Sharing With Warlords And Rebels In Africa, Jeremy I. Levitt

Journal Publications

When warlords use violence to coerce democratically constituted governments to share power, does power-sharing simply become a euphemism for "guns for jobs"? Which legal rules, if any, govern peace agreements in internal conflicts? Specifically, which rules regulate power-sharing? Are the aims of peace, justice, and adherence to the rule of law attainable, let alone compatible, with coerced political transitions where warlords force democratically constituted or legitimate governments to share power?

This Article represents the first conscientious attempt to address these questions, present a conceptual framework for examining the legal and political efficacy of coercing democratically constituted governments into sharing power, …

The Principles On Agreements: "Fairness" And International Human Rights Law, Barbara J. Stark

Hofstra Law Faculty Scholarship

Family law is again in turmoil, and the ALI Principles are an ambitious and sometimes inspired effort to increase clarity and fairness. This turmoil can be attributed to two major factors. First, family law is ground zero in the gender wars. Second, family law is reeling from the upheavals of globalization. These factors provide the backdrop against which the dilemmas addressed in Chapter 7, Agreements, play out.

Chapter 7 focuses on a particularly intriguing tension, between commercial contracts and premarital agreements. This tension is grounded in the broader tension between American views on freedom of contract and autonomy in general, …

Defending Human Rights In The "War" Against Terror, Douglass Cassel

Journal Articles

Safeguarding human rights in our "war" against terrorism is both the right and the smart thing to do. It is right because human rights embody our fundamental values as Americans and as Christians. Our Constitution stands for freedom; our Creator teaches us to respect the God-given dignity of each human soul. Christians are called to cherish human dignity, not only of innocents, and not only of captives in war whose status as combatant or civilian may be uncertain, but also of cardinal sinners, the terrorists themselves. Christ Jesus teaches us to hate the sin, but somehow to bring ourselves to …

Remembering Sudetenland: On The Legal Construction Of Ethnic Cleansing, Timothy W. Waters

Articles by Maurer Faculty

What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have almost 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 almost universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary international law's rules on ethnic cleansing?

The Article derives the customary legal norms logically …