Law Commons^™

The Holocaust And Mass Atrocity: The Continuing Challenge For Decision, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

This article begins with an appraisal of a report published by the United States Institute for Peace and authored by the former Secretary of State, Albright, and former Secretary of Defense, Cohen. This Report generated a great deal of interest and reaction from scholars across the globe. The article will introduce the broad outline of this Report and provide a summary of the principal criticisms that it has generated. This sets the stage for approaching the problem that is sensitive to the issue that this phenomenon be explore with a view to developing usable insights and data as well as …

Google’S China Problem: A Case Study On Trade, Technology And Human Rights Under The Gats, Henry S. Gao

Research Collection Yong Pung How School Of Law

Trade and human rights have long had a troubled relationship. The advent of new technologies such as internet further complicates the relationship. This article reviews the relationship between trade, technology and human rights in light of the recent dispute between Google and China from both theoretical and practical perspectives. Starting with an overview of the internet censorship regime in China, the article goes on to assess the legal merits of a WTO challenge in this case. First, the article discusses which service sector or subsectors might be at issue. Second, the article analyzes whether and to what extent China has …

November 23, 2011: Obama To Side With The Bishops, Bruce Ledewitz

Hallowed Secularism

Blog post, “Obama to Side With the Bishops“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Immigration Detention & Human Rights In The Lone Star State, Liane N. Noble

Liane N Noble

Every year, almost 400,000 individuals are held in immigration detention in the United States. These individuals—men, women, and even children—are held in a patchwork of federal, local, and private contract facilities. Surprisingly, one-third of all U.S. immigration detention beds are located in the state of Texas. Given the concentration of detention space in Texas and thus the unique issues facing that state, this report seeks to elucidate the key human rights issues surrounding immigration detention with a focus on the situation in Texas.

The information contained in this report was gathered using a variety of research methods, including: (1) review …

November 11, 2011: Veterans Day 2011, Bruce Ledewitz

Hallowed Secularism

Blog post, “Veterans Day 2011“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom

Daniel Kanstroom

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and …

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

Hard Times For Peace Between Two Internally Divided Societies, Claudia Heiss

Human Rights & Human Welfare

These are not promising days for those who desire peace between Israelis and Palestinians, with two states respected by each other and recognized by the international community, living securely side by side. Richard Falk’s article rightly stresses the negative role played by the US Government in its sharp rejection of the Palestinian bid for statehood at the United Nations Security Council. The problem, however, seems to lie deeper in these complex societies and their current political leaderships.

November Roundtable: The Palestine Bid For Statehood At The Un, Introduction, Claudia Fuentes Julio

Human Rights & Human Welfare

An annotation of:

“Statehood versus “Facts on the Ground””. By Richard Falk. Aljazeera, September 20, 2011.

The Sum Of The Parts, Therese O'Donnell

Human Rights & Human Welfare

From one perspective the Middle East lends itself as a macabre mise-en-scene where the triumph of realpolitik over the legitimacies of international law can be continually re-staged. To be sure, at least two sovereign states seem to go their own way, even in the face of rampant and valid international criticism—the end of a construction freeze on illegal settlements and failures to condemn clearly illustrate this point. However, two can play at that game. The US veto of the October 2003 draft Security Council resolution declaring as illegal Israel’s construction of its security fence, beyond the 1949 Green Line and …

The Us On The Palestinian Statehood Bid: Weighing The Costs, Thomas Pegram

Human Rights & Human Welfare

Reflecting on the controversy surrounding the Palestinian bid for statehood, Richard Falk neatly subverts the opening words of the UN Charter, “we the people,” as having always surrendered to “we the governments,” and, in the modern era of American empire, “we the hegemon.”

This may well be true. The UN Security Council (UNSC), in particular, is viewed in Washington as a vehicle for hegemonic ambitions—to be indulged when it serves its purpose and vetoed and sidelined when it does not. Unfolding events at the UNSC, reportedly due to vote on the Palestinian resolution on November 11 but now postponed perhaps …

Elusive Empowerment: Compensating The Sex Trafficked Person Under The Trafficking Victims Protection Act, Theodore R. Sangalis

Fordham Law Review

Globally, hundreds of thousands-perhaps millions-are being forced or coerced into commercial sex acts. In the United States, this sex trafficking problem has become a lucrative illegal industry, and it is quickly growing. In response, Congress passed the Trafficking Victims Protection Act of 2000 (TVPA) to eradicate the industry by prosecuting the perpetrators, protecting the victims, and preventing the practice. Through several reauthorizations, one federal strategy that has emerged is compensating the victims through mandatory criminal restitution and civil remedies. Collection of restitution damages has been lacking, however, and no civil suit filed for sex trafficking survivors has reached the merits. …

To Transfer Or Not To Transfer: Identifying And Protecting Human Rights Interests In Non-Refoulment, Vijay Padmanabhan

Fordham Law Review

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman, or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context. In recent years the …

Collateral Consequences Of Criminal Convictions: Confronting Issues Of Race And Dignity, Michael Pinard

Michael Pinard

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, …

Trade-Based Strategies For Combatting Child Labor, Frank J. Garcia, Soohyun Jun

Frank J. Garcia

International commerce facilitates abusive child labor when it offers a market for the goods produced through such practices. International trade sanctions are thus a logical avenue for confronting abusive child labor, by eliminating the commercial opportunities for such goods. However, it is not clear that domestic child labor sanctions would survive legal challenge under WTO law as currently interpreted. For international trade law to serve as a viable strategy for change, there must first be a clear theoretical and doctrinal case for the WTO-consistency of domestic child labor-based sanctions. In this chapter, we present this case, using the U.S. section …

Human Rights Adjudication In Contemporary Democracies: Courts’ Specific Moral Insight As A Decisive Advantage Over Legislatures (A Modest And Partial Response To Jeremy Waldron’S Core Case Against Judicial Review), Francisco Verbic

Francisco Verbic

No abstract provided.

Does Access To Justice Improve Compliance With Human Rights Norms - An Empirical Study, Samuel P. Baumgartner

Cornell International Law Journal

No abstract provided.

Courts Resisting Courts: Lessons From The Inter-American Court’S Struggle To Enforce Human Rights, Alexandra Huneeus

Cornell International Law Journal

Courts Resisting Courts explores a critical tension in international law: the relationship between international and national courts. Leading theorists assume that autonomous national courts heighten compliance with international human rights regimes. This article challenges this orthodoxy. It focuses on the Inter-American Court of Human Rights, an international court unique in that it orders far-reaching, innovative remedies that invoke action not only by the State's executive, but also the legislature and local courts. Original data reveals that national courts, more than any other branch of government, shirk the Court's rulings. This article turns this insight into a prescription for gaining greater …

A Conversation Without End: Human Rights Law In Perspective?, Colin Harvey

Res Gestae

No abstract provided.

September Roundtable: "The Syrian Spring" And Human Rights, Introduction, Raslan Ibrahim

Human Rights & Human Welfare

An annotation of:

“The UN Security Council's Pro-Syrian 'Defiance Coalition' Crumbles”. By Raghida Dergham. Huffington Post, August 2011.

The Arab Spring: Endgames As Framing Battle, Colm Campbell

Human Rights & Human Welfare

The narrative of the Arab Spring (including the Syrian uprising) in the mainstream media appears clear and linear: a cruel dictator is challenged in a series of street demonstrations that rapidly coalesce to become a popular uprising. The dictator resorts to increasingly brutal repression, but this fails to end the challenge. Within a relatively short time the dictator is overthrown. Elections within a reasonable period are announced, promising the creation of a democracy that is representative not only of the protest movement, but of society as a whole. Raghida Dergham's Huffington Post article largely reflects this perspective, drawing attention to …

White Noise, White Heat, Therese O'Donnell

Human Rights & Human Welfare

If, as former British Prime Minister Harold Wilson famously uttered, "A week is a long time in politics," then the Six weeks since Raghida Dergham's article could be a lifetime and the last six months of the "Arab Spring" an aeon.

The Un Security Council On Syria: Radical Change Or Continuity?, Thomas Pegram

Human Rights & Human Welfare

The Presidential Statement issued by the UN Security Council on August 3 condemning the widespread violation of human rights by Syrian authorities was hailed by some as signaling the collapse of the pro-Syrian "defiance coalition."

This "defiance coalition," comprised of the so-called "BRICs" (Brazil, Russia, India, China, and South Africa) along with Lebanon, did indeed relent, begrudgingly, to growing international pressure for action on Syria. However, whether a statement containing little actionable content signals the crumbling of defiance rather than a diplomatic maneuver as calculations are recalibrated in light of developments is another matter.

The Moral International Sphere As A New "Civic Virtue", Claudia Heiss

Human Rights & Human Welfare

Liberal political theory, the predominant paradigm at least since the 1970s, rules out as oppressive the imposition of any substantive notion of a "good way of life" and proposes instead a neutral conception where each individual should have the right to pursue his or her own preferred project of life. This opposition of an ancient "virtue" and a modern "freedom" seems challenged by current debates about morality and the responsibility to protect innocent civilians from massive crimes. The moral outrage of the international community may be interpreted as a signal of a perhaps minimal notion of civic virtue, which translates …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

Suicide Killing Of Human Life As Human Right - The Continuing Devolution Of Assisted Suicide Law In The United Kingdom, William Wagner

William Wagner

SUICIDE KILLING OF HUMAN LIFE AS A HUMAN RIGHT

The Continuing Devolution of Assisted Suicide Law

in the United Kingdom

PROF. WILLIAM WAGNER, PROF. JOHN KANE, AND STEPHEN P. KALLMAN

ABSTRACT

Since the beginning of time, divine, natural, and positive law traditions of the United Kingdom reflected an inviolable standard that people should not assist in the killing of human life. This article reviews and analyzes the ancient inviolable benchmark, explaining why the common and statutory law of Britain historically reflected its moral reference point to prohibit assisted suicide. We then proceed to analyze a contemporary jurisprudential shift in Britain’s …

The Ballot As A Bulwark: The Impact Of Felony Disenfranchisement On Recidivism, Guy P. Hamilton-Smith, Matt Vogel

Guy P Hamilton-Smith

Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls – is a practice that is commonplace in the United States. In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction. Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state. One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does. First, this article …

Rape In Conflict: Battling The Impunity That Stifles Its Recognition As A Jus Cogens Human Right, Michelle Marie Seyler

Michelle Marie Seyler

Jus cogens is defined as “peremptory norms of general international law from which no derogation is permissible.” Among the human rights issues that fall into this category, such as slavery and genocide, there is one that has yet to be elevated to this level of importance that unequivocally should be: rape in conflict areas.

This paper first overviews the history of rape in conflict, the reasons for its prevalence, and the affects it has on women and communities. Second, it discusses the legal tools currently available in the international legal field. Third, it establishes genocide as a jus cogens human …

The Right Side Of The Coin: Focus On The Human Rights Of People, Not The Failure Of States, Brooke Ackerly

Human Rights & Human Welfare

US policy toward failed states should focus on strengthening civil society and social movements so that people are better able to hold their leaders accountable.

The language of “failed states” disassociates foreign policy from international dialogue about human rights. Instead, “failed states” is a contemporary sound bite that connotes a lack of sovereignty, suggesting that intervention would not violate national sovereignty because in a failed state, there is none. Of course, we could have a similar cynicism about the use of human rights concerns to justify invasion. Certainly, states have tried to choose when to reference international human rights norms …

Implementing Recommendations From The Universal Periodic Review: A Toolkit For State And Local Human Rights And Human Relations Commissions, Human Rights Institute

Human Rights Institute

The United States’ international leadership in promoting human rights around the world is strengthened by state and local officials’ efforts to employ and advance human rights close to home. Indeed, state and local human rights and human relations commissions can play a pivotal role in help- ing the U.S. meet its own human rights obligations by ensuring fairness, dignity and opportunity for all in their communities.

This Toolkit provides information about a recent review of the United States’ human rights record under the United Nations’ Universal Periodic Review (“UPR”), which revealed a number of areas in which the United States …