Human Rights Law Commons^™

State And Local Human Rights Agencies: Recommendations For Advancing Opportunity And Equality Through An International Human Rights Framework, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

State and local human rights agencies can play a critical role in promoting and protecting human rights close to home. State and local human rights and human relations commissions already operate every day to prevent and eliminate discrimination. These institutions have multiple functions that include enforcing anti-discrimination laws, engaging in community education and training and advocacy. Central to their mission is encouraging and facilitating institutional change to eradicate discrimination and promote equal opportunity. Thus, advancing human rights protections intersects with and, in fact, supports the work of state and local human rights and human relations commissions to encourage and ensure …

Human Rights Without Foundations, Joseph Raz

Faculty Scholarship

This is a good time for human rights. Not that they are respected more than in the past. The flagrant resort to kidnapping, arbitrary arrests, and torture by the United States of America (USA), and the unprecedented restriction of individual freedom in the USA, and in Great Britain (GB), cast doubt about that. It is a good time for human rights in that claims about such rights are used more widely in the conduct of world affairs than before. There are declarations of and treaties about human rights, international courts and tribunals with jurisdiction over various human right violations. They …

Human Rights In The Emerging World Order, Joseph Raz

Faculty Scholarship

Pursuing the so-called political account of human rights, this talk first explains some aspects of the relations between legal and moral rights, and between rights and interests, and then applies the analysis to provide an explanation of human rights. Using the rights to health and to education as examples, it rejects the traditional theory that takes human rights to be rights that people have in virtue of their humanity alone. But human rights are synchronically universal. They are rights which all people living today have, a feature that is a precondition of, and a result of, the fact that they …

Making Social Rights Conditional: Lessons From India, Madhav Khosla

Faculty Scholarship

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

Climate Change And The Right To Food: A Comprehensive Study, Human Rights Institute

Human Rights Institute

Climate change and the policies instituted to combat it are affecting the realiza- tion of the right to food in myriad, often unnoticed ways. This report highlights how – despite the common objective to preserve human welfare for present and future generations – the climate change regime and the human rights regime addressing the right to food have failed to coordinate their agendas and to collab- orate to each other’s mutual benefit. The current climate change regime fails to accurately address the human harms resulting from climate change itself, and is not operating with the necessary safeguards and preventive measures …

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the …

Secondary Human Rights Law, Monica Hakimi

Faculty Scholarship

In recent years, the United States has appeared before four different treaty bodies to defend its human rights record. The process is part of the human rights enforcement structure: each of the major universal treaties has an expert body that reviews and comments on compliance reports that states must periodically submit. What's striking about the treaty bodies' dialogues with the United States is not that they criticized it or disagreed with it on the content of certain substantive rules. (That was all expected.) It's the extent to which the two sides talked past each other. Each presumed a different set …

Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman

Faculty Scholarship

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned …

Beyond Protection, Philip A. Hamburger

Faculty Scholarship

Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly dificult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection.

This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no …

Human Rights, Social Justice And State Law: A Manual For Creative Lawyering, Program On Human Rights And The Global Economy, National Economic And Social Rights Initiative (Nesri), Human Rights Institute

Human Rights Institute

This manual is written to help lawyers consider the role of transnational law as an interpretive tool in state constitutional and other state law litigation to protect economic and social rights.9 In Chapter I, the manual provides an overview of the relationship between state law and transnational law. In Chapter II, the manual covers key economic and social rights and provides examples of how courts have found those rights to be justiciable in a range of contexts. The principal economic and social rights discussed in Chapter II are:

• The right to health
• The right to housing
• The right to food …

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Faculty Scholarship

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …

Human Rights In The United States, Sarah H. Cleveland, Catherine Powell

Faculty Scholarship

This year marks the tenth anniversary of the founding of the Human Rights Institute (HRI) at Columbia Law School. Appropriately, it also marks the sixtieth anniversary of the Universal Declaration of Human Rights, the foundational instrument of the modern international human rights regime.

When HRI was founded in 1998, it was established as a crossroads for human rights at Columbia, which would bridge theory and practice, human rights and constitutional rights, and law and other disciplines. From its inception, HRI has been a partner with the university-wide Center for the Study of Human Rights, which was established twenty years earlier …

The Legacy Of Louis Henkin: Human Rights In The "Age Of Terror" – An Interview With Sarah H. Cleveland, Sarah H. Cleveland

Faculty Scholarship

What effect has Professor Henkin's work had upon your own thoughts or scholarship in the human rights field?

My scholarly work spans the fields of international human rights and U.S. foreign relations law. I am particularly interested in the process by which human rights norms are implemented into domestic legal systems, the role the United States plays in promoting the internalization of human rights norms by other states, and the mechanisms by which the values of the international human rights regime are incorporated into the United States domestic legal system.

To say that Professor Henkin's work has contributed to my …

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe

Faculty Scholarship

The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court's international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system.

This Article argues that the focus on doctrine masks underlying international relations …

The Twail Discourse: The Emergence Of A New Phase, Madhav Khosla

Faculty Scholarship

One of the most important discourses to have emerged in opposition to mainstream international law has been the third world approaches to international law (TWAIL). This discourse may be divided into two historical phases: TWAIL I and TWAIL II. While TWAIL I was characterised by a focus on colonization and the hegemonic use of international law by powerful nations, TWAIL II has concentrated on international institutions and the impact of globalisation. It is posited that the TWAIL discourse is in the process of entering into a new phase post 9/11. This phase can be understood as one in which TWAIL …

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …

Recognizing Victimhood, Christine Wilke

Studio for Law and Culture

The category of victimhood resonates deeply with many contemporary struggles for recognition without, however, receiving similar attention by political theories of recognition. Many “struggles for recognition” are fought with explicit reference to massive injustice that have ceased without having been publicly recognized as injustices. The state responses to claims for the recognition of victimhood mirror, I will argue, the state’s dominant conceptions of justice and injustice. In many cases, the state affirms its conceptions of injustice and moral innocence through the selective recognition of victims. For example, the U.S. government has granted Japanese-Americans interned during the Second World War an …

The Limits Of Courage And Principle, Jedediah S. Purdy

Faculty Scholarship

Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology …

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

The Alien Tort Statute, Civil Society, And Corporate Responsibility, Sarah H. Cleveland

Faculty Scholarship

The topic of this panel is civil participation in the global trading system, with a particular focus on Doe v. Unocal Corp. and use of the Alien Tort Statute (ATS) to enforce fundamental human rights norms against multinational corporations. These comments will therefore attempt to locate Doe v. Unocal and other ATS litigation in the broader efforts of civil society to establish and maintain normative principles for corporate responsibility in the global trading regime. This comment first explains the role of ATS litigation in the broader civil society context and the contribution of ATS cases to the development and enforcement …

Bi-Polar And Polycentric Approaches To Human Rights And The Environment, Michael Burger

Sabin Center for Climate Change Law

Within the well-established human rights system, there exist at least three ways to promote environmental ends (each of which is discussed further in Section III below): (1) mobilizing existing rights to achieve environmental ends; (2) reinterpreting existing rights to include environmental concerns; and (3) creating new rights, such as the right to a clean environment. To justify engaging in any one of these processes, an advocate must recognize both their moral legitimacy and legal utility. As one author has argued, "the justification for rights is to be found in the way in which they enable us to address a key …

Inter-American Court Of Human Rights Amicus Curiae Brief: The United States Violates International Law When Labor Law Remedies Are Restricted Based On Workers' Migrant Status, Sarah H. Cleveland, Beth Lyon, Rebecca Smith

Faculty Scholarship

Immigrant workers in the United States of America are among the most poorly paid and poorly treated in the workforce. Amici’s attempts to protect the rights of immigrants, including unauthorized workers, have been severely hampered by domestic U.S. laws that discriminate on the basis of alienage and immigration status, and especially by a recent decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002).

Immigrant workers in particular employment-related visa categories are explicitly excluded from the protections of certain U.S. labor and employment laws. So, too, immigrant workers …

Human Rights, Terrorism, And Trade – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

By putting human rights first and terrorism in the middle, I hope to open up questions about linkages among these regimes and whether measures within one regime can advance objectives of the others.

Interpreting U.S. Treaties In Light Of Human Rights Values, Lori Fisler Damrosch

Faculty Scholarship

International treaty law occupies a more secure place in U.S. constitutional text than customary international law. Treaties, we know, are the “supreme law of the land” under Article VI of the Constitution and are routinely applied both in state courts and in federal courts under Article III. So the “awkward relationship” to which I will address myself is how U.S. courts should determine the meaning of an international treaty to which the United States is bound, when the parties involved in court have different views on the substance of the obligation that the United States has undertaken. Thus my general …

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of …

Norm Internalization And U.S. Economic Sanctions, Sarah H. Cleveland

Faculty Scholarship

The fifty years since the adoption of the Universal Declaration of Human Rights have seen a revolution in the promulgation and universalization of human and labor rights. Human rights conventions have proliferated in the areas of civil and political rights, social and economic rights, and the rights of women, children, minorities, and refugees. Many of these conventions have been ratified by a majority of the nations of the world. International monitoring of human and labor rights compliance is conducted by international institutions such as the U.N. Human Rights Commission and the International Labour Organization (ILO), by regional entities such as …

Report Of The Commission Of Enquiry Into Certain Allegations Of Cruelty And Human Rights Abuse Against Anc Prisoners And Detainees By Anc Members, Motsuenyane Commission Of Inquiry, Margaret A. Burnham, Bernard E. Harcourt, David E. Loftis, Samuel M. Motsuenyane, David M. Zamchiya

Faculty Projects

The Motsuenyane Commission of Inquiry was appointed by the President of the African National Congress of South Africa (ANC), Dr. Nelson Mandela, to investigate allegations of human rights abuses and alleged disappearances among its members. Its terms of reference were dated the 12th January, 1993. This is a historic event insofar as it is the first time that a liberation movement has engaged an independent commission to review allegations that its members violated human rights guarantees within its ranks.