Human Rights Law Commons^™

Toward A Jurisprudence Of Law, Peace, Justice, And A Tilt Toward Non-Violent And Empathic Means Of Human Problem Solving, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this essay the author sets out some questions about whether law can be made a site of encouraging more positive, peace seeking, non-violent, and pro-social behaviors. These questions derive from my own family history, as well as from my experience as a social and political activist, and also as a practicing lawyer and legal scholar. She begins in the introduction by setting out these questions in light of current conditions of domestic and international violence and some past considerations of categories of law. In the second section of this essay the author explains where her questions come from—her personal …

Neo-Democracy, National Security, And Liberty, David Cole

Georgetown Law Faculty Publications and Other Works

In his new book, Liberty and Security, Conor Gearty, professor of law at the London School of Economics and one of the United Kingdom’s leading authorities on civil liberties and national security, argues that many Western nations are in effect “neo-democracies” that fail systematically to live up to the fundamental egalitarian premises of true democracy, and that this development is seen in particular in the context of counter-terrorism policy. This review assesses that claim, and maintains that while Gearty is correct that many counter-terrorism measures are predicated on double standards, that critique is insufficient to answer the many difficult questions …

Black Male Exceptionalism? The Problems And Potential Of Black Male-Focused Interventions, Paul D. Butler

Georgetown Law Faculty Publications and Other Works

“Black male exceptionalism” is the premise that African American men fare more poorly than any other group in the United States. The discourse of Black male exceptionalism presents African American men as an “endangered species.” Some government agencies, foundations, and activists have responded by creating “Black male achievement” programs. There are almost no corresponding “Black female achievement” programs. Yet empirical data does not support the claim that Black males are burdened more than Black females. Without attention to intersectionality, Black male achievement programs risk obscuring Black females and advancing patriarchal values. Black male achievement programs also risk reinforcing stereotypes that …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

Towards A Framework Convention On Global Health: A Transformative Agenda For Global Health Justice, Lawrence O. Gostin, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

International law has responded weakly to the inequities in health care, public health, and the broader determinates of health that collectively cause the greatest loss of lives and human potential every year. Approximately one-third of global deaths can be attributed to enduring and unconscionable inequities. Despite significant progress in improving global health over the past several decades, these inequities persist. Current global governance for health is inadequate to the task of resolving these inequities, from lack of accountability and enforcement to inadequate funding and the absence of leadership required to respond to the threats to health that arise from other …

Lessons For International Law From The Arab Spring, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Overview And Operation Of U.S. Financial Sanctions, Including The Example Of Iran, Barry E. Carter, Ryan Farha

Georgetown Law Faculty Publications and Other Works

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.

In spite of …

Bloomberg’S Health Legacy: Urban Innovator Or Meddling Nanny?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Michael Bloomberg leaves the mayoralty of New York City, with his health legacy is bitterly contested. The public health community views him as an urban innovator—a rare political and business leader willing to fight for a built environment conducive to healthier, safer lifestyles. To his distractors, however, Bloomberg epitomizes a meddling nanny—an elitist dictating to largely poor and working class people about how they ought to lead their lives. His policies have sparked intense public, corporate, and political ire—critical of sweeping mayoral power to socially engineer the city and its inhabitants.

Here, I seek to show how Bloomberg has fundamentally …

Why Jeremy Waldron Really Agrees With Me, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Herewith a response to Jeremy Waldron's review of my book, On Constitutional Disobedience. I conclude that Waldron actually agrees with all of my key claims.

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …

Reflections On Kony 2012, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In spring 1997, few people outside Uganda had heard of the Lord’s Resistance Army (LRA). The LRA arose in the late 1980s out of the ashes of Alice Lakwena’s Holy Spirit Movement, and over the next decade, LRA raids killed thousands of villagers in Northern Uganda. Hundreds of thousands were displaced, and an estimated 10,000 children were forcibly abducted by the LRA and brutally coerced into becoming killers, sex slaves or both. But in the spring of 1997, the LRA had yet to make CNN.

Bridging International Law And Rights-Based Litigation: Mapping Health-Related Rights Through The Development Of The Global Health And Human Rights Database, Benjamin Mason Meier, Oscar A. Cabrera, Ana Ayala, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The O'Neill Institute for National and Global Health Law at Georgetown University, the World Health Organization, and the Lawyers Collective have come together to develop a searchable Global Health and Human Rights Database that maps the intersection of health and human rights in judgments, international and regional instruments, and national constitutions. Where states long remained unaccountable for violations of health-related human rights, litigation has arisen as a central mechanism in an expanding movement to create rights-based accountability. Facilitated by the incorporation of international human rights standards in national law, this judicial enforcement has supported the implementation of rights-based claims, giving …

The Taint Of Torture: The Roles Of Law And Policy In Our Descent To The Dark Side, David Cole

Georgetown Law Faculty Publications and Other Works

Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Georgetown Law Faculty Publications and Other Works

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

Developing The Substantive Best Interests Of Child Migrants: A Call For Action, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

This Article attempts to accomplish two goals. First, it provides an overview of what is known and unknown about international child migrants. While this Conference will focus to some degree on child migrants in the United States, this Article shows how significant this phenomenon is around the world. Therefore, this Article provides data and points out the research gaps surrounding this issue.

Equally significant is the lack of legal and policy tools available for governments to respond well and in accordance with the Convention on the Rights of the Child ("CRC") to the children themselves. First, informed by social science …

Military Lawyers And The Two Cultures Problem, David Luban

Georgetown Law Faculty Publications and Other Works

Military and humanitarian lawyers approach the laws of war—labeled “law of armed conflict” by the former and “international humanitarian law” by the latter—in very different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. This article argues that from these radically different axioms legal consequences systematically follow regarding treaty interpretation, the sources and reach of customary international law, the nature of international law, deference and discretion to military commanders, and the connection between …

Judicial Engagement Through The Lens Of Lee Optical, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Keynote remarks at the symposium on "Judicial Engagement and the Role of Judges in Enforcing the Constitution", delivered on March 22, 2012 at the George Mason University School of Law.

A Talent For Risk And Trust: A Tribute To Aryeh Neier, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This essay is a tribute to Aryeh Neier, former president emeritus of the Open Society Foundations and founder of the Human Rights Watch. The author discusses Aryeh Neier's talent for risk and trust.

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …

Strange Bedfellows: The Convergence Of Sovereignty-Limiting Doctrines In Counterterrorist And Human Rights Discourse, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

It is hard to imagine two groups with less in common than national security hawks and human rights activists. They represent different cultures with different views on the use of force, the role of rights, and the constraining power of international law. Yet despite their differences, the two groups seem to be converging on an understanding of state sovereignty as limited and subject to de facto waiver—an understanding that appears to legitimize military inter­ventions even in the absence of state consent and Security Council authorization.

This convergence is reached via different routes in each community: for the national security community, …

Alien Tort Claims And The Status Of Customary International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was …

Sent ‘Home’ With Nothing: The Deportation Of Jamaicans With Mental Disabilities, Georgetown University Law Center, Human Rights Institute

HRI Papers & Reports

No abstract provided.

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Democracy Promotion In The Obama Administration: An Opportunity To Match Action To Rhetoric, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Carl Schmitt And The Critique Of Lawfare, David Luban

Georgetown Law Faculty Publications and Other Works

“Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law—lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately …

They Did Authorize Torture, But..., David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

A Migrants' Bill Of Rights—Between Restatement And Manifesto, Gerald Neuman

International Migrants Bill of Rights Symposium

These comments first provide a general perspective on the nature of the proposed International Migrants Bill of Rights (IMBR) and then offer some specific observations on the current draft, in particular its provisions on the subject of equality or nondiscrimination, including but not limited to Article 2.

Avoiding Evasion: Implementing International Migration Policy, Justin Gest

International Migrants Bill of Rights Symposium

Despite the broadening range of international arbiters of global migration, the state—with its sovereign control of its territory and its subjection to the politics of its society—remains the only arbiter that oversees the actual interactions during which a proposed bill of rights would be followed. “As long as the nation-state is the primary unit for dispensing rights and privileges, it remains the main interlocutor, reference and target of interest groups and political actors, including migrant groups and their supporters.” This suggests that the normative persuasion and mobilization of even the most powerful non-state actors can only be in the ultimate …

The Most-Favoured Nation Principle, Equal Protection, And Migration Policy, Tomer Broude

International Migrants Bill of Rights Symposium

This article discusses the theoretical interaction between the economically grounded most-favoured nation (MFN) treatment principle and the human-rights based concept of equal protection of migrants. In the multilateral law of international trade, MFN is an article of faith that lays a valid claim to having significantly contributed to the success of the trade-liberalizing and welfare-enhancing role of the General Agreement on Tariffs and Trade /World Trade Organization (GATT/WTO). Above and beyond its trade-related economic roles, when it applies to individuals of different nationalities, the logic of MFN also appears to generally conform to fundamental principles of equal protection of the …