Law Commons^™

On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero

Faculty Scholarship

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments.

This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government …

Introduction To Torture As Tort: From Sudan To Canada To Somalia, Craig M. Scott

Articles & Book Chapters

The present work is chapter 1 of the edited volume, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing, Oxford, 2001). At the time the book was generated, the controversial nature of seeking globalised justice through national courts had become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought extradition of the former President of Chile from the United Kingdom in order to bring him to account under Spanish criminal law for a variety of alleged violations in Chile of human rights, most notably involving torture. Yet, …

Terrorism And Human Rights, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Costs Of International Human Rights Litigation, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Human Rights International Ngos: A Critical Evaluation, Makau Wa Mutua

Contributions to Books

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 …

A Framework Of Norms: International Human-Rights Law And Sovereignty, Douglass Cassel

Journal Articles

The international legal boundary between states; rights and human rights is not fixed. Long ago, the Permanent Court of International Justice - the judicial arm of the League of Nations and the precursor to the present International Court of Justice - recognized that "the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations." In recent decades international relations concerning both sovereignty and rights have developed quickly. An examination of those rights and the evolving realities of sovereignty are examined.

Does International Human Rights Law Make A Difference?, Douglass Cassel

Journal Articles

Does international human rights law make a difference? Does it protect rights in practice? The importance of these questions for rights protection is obvious: the institutions of international human rights law deserve our energetic support only to the extent they contribute meaningfully to protection of rights, or at least promise eventually to do so. Moreover, at the moment these questions have added urgency. They underlie an ongoing debate, fomented in part by this Journal, on the extent to which the United States should be prepared to cede degrees of its national sovereignty to international human rights institutions, in return for …

The International Criminal Court: Issues For Consideration By The United States Senate, Patricia Mcnerney

Law and Contemporary Problems

McNerney states that many in Congress who oppose the International Criminal Court are also some of the stronger advocates of the US speaking out against human rights abuses around the world. Rather than advocating the creation of an international criminal court that attempts to take decision making authority away from governments and invalidate the rule of law, however, they argue that more should be done to facilitate extradition of criminals to stand trial where they are accused.

How To Defeat A Treaty's Object And Purpose Pending Entry Into Force: Toward Manifest Intent, Jan Klabbers

Vanderbilt Journal of Transnational Law

Under Article 18 of the 1969 Vienna Convention on the Law of Treaties, states that have signed or ratified a treaty are supposed to refrain from acts which might defeat the object and purpose of the treaty pending its entry into force. After noting that international lawyers and academics have recognized various types of treaties, the Article begins by observing that traditionally the interim obligation operates well in contractual situations but not in normative situations. Furthermore, the Author argues that where treaties are normative, the traditional conception of the interim obligation is insufficient.

While the interim obligation has been recognized …

Women's International Tribunal On Japanese Military Sexual Slavery, Christine M. Chinkin

Articles

From December 8 to 12,2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading high-ranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s.

The immediate background to the tribunal's establishment was a series of events commencing in 1988 when the women's movement in the Republic of Korea began to learn of the research of …

Justice In Africa: Rwanda's Genocide, Its Courts, And The Un Criminal Tribunal, Jenia I. Turner

Faculty Journal Articles and Book Chapters

No abstract provided.

A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo

LLM Theses and Essays

Universally held basic human rights must remain separate from political rights. Such basic human rights are those that are so universal that all societies, systems, nations, and ideology could, and do espouse them. Conversely, political rights are those that are dependent upon compatibility with the system of government in place and arc therefore far less likely to gamer universal support. An effective multilateral enforcement mechanism can only succeed if there are universal agreement and acceptance of the protected rights. Accordingly, at the outset of such a mechanism, only basic human rights may be enforced through trade sanctions. Once such a …

Caretakers And Collaborators, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

A chilling subplot in the twentieth-century saga of state-sponsored mass murder, torture, and other atrocities was the widespread incidence of medical complicity. Nazi doctors’ human “experiments” and assistance in genocidal killing are the most oft-cited exemplar, but wartime Japanese physicians’ human vivisection and other grotesque practices rivaled the Nazi medical horrors. Measured by these standards, Soviet psychiatrists’ role in repressing dissent, Latin American and Turkish military doctors’ complicity in torture, and even the South African medical profession’s systematic involvement in apartheid may seem, to some, almost prosaic. Yet these and other reported cases of medical complicity in human rights abuse …

Federalism And International Human Rights In The New Constitutional Order, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court's innovations in the law of federalism in connection with Congress's exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government's power with respect to foreign affairs. Most of the speculation has been that …

Rethinking Wto Trade Sanctions, Steve Charnovitz

GW Law Faculty Publications & Other Works

The paper presents an outline of the issues and a preliminary appraisal of the use of trade sanctions by the World Trade Organization (WTO) as a means of promoting compliance by parties. The WTO is unique among intergovernmental organizations (IGOs) in using trade sanctions to enforce independent adjudications. Many commentators have suggested using trade sanctions analogously in other IGOs, or alternatively broadening trade rules so that the sanctions can be used for other purposes, such as enforcing basic human rights. The paper examines the advantages and disadvantages of the use of such compliance sanctions by the WTO and concludes that …

Cultural Relativism, Economic Development And International Human Rights In The Asian Context, Richard Klein

Scholarly Works

No abstract provided.

A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann

Articles & Chapters

As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... …

Afterword – Straightness As Property: Back To The Future-Law And Status In The 21st Century, Symposium: Liberalism And Property Rights, Berta E. Hernández-Truyol, Shelbi D. Day

UF Law Faculty Publications

As is evident from the other works in this Symposium, throughout history in both the United States and the greater Western World, status-based exclusion of individuals and groups from property rights has been central to the existence of political and social hierarchies. Specifically, exclusion based on status — whether it be nationality, culture, race, sex or sexuality — has plagued our history and has been integral in the formation and development of both constitutional and property law regimes. Consequently, both regimes are at best uneven in the grant and distribution of rights and benefits.

A forward-looking examination of the link …

After Seattle: Public International Organizations, Non-Governmental Organizations (Ngos), And Democratic Legitimacy In An Era Of Globalization: An Essay In Contested Legitimacy, Kenneth Anderson

Working Papers

This working monograph (about 120,000 words) analyzes the relationship between public international organizations such as the United Nations system and international non-governmental organizations under conditions of globalization. It argues that international organizations and international NGOs are locked in an embrace of mutual legitimation, each giving the other important political legitimacy, in favor of liberal internationalism and at the expense of democratic sovereignty. The monograph argues that the legitimacy that each gives the other is based on flawed assumptions about the nature of civil society and "international civil society," on the one hand, and global governance and the possibilities of international, …

The Effect Of A Domestic Amnesty On The Ability Of Foreign States To Prosecute Alleged Perpetrators Of Serious Human Rights Violations, Roman Boed

Cornell International Law Journal

No abstract provided.

The Lawful Scope Of Human Rights Criteria In World Bank Credit Decisions: An Interpretive Analysis Of The Ibrd And Ida Articles Of Agreement, John D. Ciorciari

Cornell International Law Journal

No abstract provided.

Defining The Agenda: A New Struggle For African-American Women In The Fight For Reproductive Self-Determination, Melanie M. Lee

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Law And Politics Of The Pinochet Case, Michael Byers

Duke Journal of Comparative & International Law

No abstract provided.

Reinterpreting Palestinian Refugee Rights Under International Law, And A Framework For Durable Solutions, Susan M. Akram

Faculty Scholarship

Background

The paper presented here is based on a much larger brief produced by two experts in international refugee law, Susan Akram and Guy Goodwin-Gill assisted by a team of law students at Boston University. Both the larger brief and the paper presented here argue for a re-interpretation of the current international refugee law which adequately expresses the principle of heightened protection for Palestinian refugees, a principle which had guided the drafting and consequent approval of international law and UN resolutions.

The author argues that the current lack of legal protection of Palestinian refugees derives from the misinterpretation of the …

Evolving Human Rights Norms Around Sexuality, Kristen L. Walker

ILSA Journal of International & Comparative Law

International human rights law has only very recently begun to address issues of sexual identity.

Human Rights Environment And Development In South Asia, Ali M. Qazilbash

ILSA Journal of International & Comparative Law

The fundamental importance of the issue of Human Rights and the environment to any society is deeply appreciated today.

Self-Determination For Indigenous Peoples After Kosovo: Translating Self-Determination "Into Practice" And "Into Peace", Lorie M. Graham

ILSA Journal of International & Comparative Law

Numerous scholars have traced the early origins of self-determination from the Marxist precepts of class liberation to the Wilsonian ideals of democracy and freedom.

The Imprint Of Kosovo On The Law Of Humanitarian Intervention, Julie Mertus

ILSA Journal of International & Comparative Law

For nearly ten years, human rights advocates have tried to focus public attention on Kosovo.

Human Rights, Environment And Development In South Asia: The Importance Of International Human Rights Law, Clarence J. Dias

ILSA Journal of International & Comparative Law

At first blush, development would appear to be the prime vehicle for promoting realization of human rights such as the right to an adequate standard of living; rights of education, food, and housing; the right to work; and the right to social security.

Restricting The Rights Of Poor Mothers: An International Human Rights Critique Of "Workfare", Shruti Rana

Faculty Scholarship

In every society, the work that women do is undervalued and unrecognized. Political and social tensions behind conceptions of work, motherhood, and equality can ignite movements that threaten the human rights of women. One such movement is underway in the United States where recent “Workfare” provisions specifically target and punish the most vulnerable members of society under the guise of reform and morality. This critique of Workfare aims to demonstrate some of the dynamism and power of a human rights framework, and to lay the groundwork for effective action to improve the plight of the single mothers who rely on …