Human Rights Law Commons^™

The Relationship Between Inter-American Jurisdiction And States (National Systems): Some Pertinent Questions, Sergio GarcíA RamíRez

Notre Dame Journal of International & Comparative Law

In this Article, Judge Sergio García Ramírez of the Inter-American Court of Human Rights explores the complex and often vexing relationship between the Inter-American Human Rights system and the domestic human rights protections within the system's member states. García Ramírez identifies a number of challenges to implementing human rights protections in Latin America, many of which are rooted in a history of authoritarianism in the twentieth century and the nascent nature of the region's democratic institutions. Yet he sees solutions in the role of the Inter-American Court in the region. García Ramírez highlights the Court's role in interpreting international human …

Grounding Human Rights In Natural Law, John M. Finnis

Journal Articles

Of the published reviews of Natural Law and Natural Rights, one of the most, and most enduringly, influential was Ernest Fortin's review-article "The New Rights Theory and the Natural Law" (1982). The present essay takes the occasion of that review's latest republication to respond to its main criticisms of the theory of natural law and natural or human rights that is articulated in Natural Law and Natural Rights. The response deals with a number of fundamental or strategically important issues: the freedom of thought and/or the intellectual autonomy and integrity of work within an intellectual tradition that overlaps with a …

The Anglo-Latin Divide And The Future Of The Inter-American System Of Human Rights, Paolo G. Carozza

Journal Articles

A former President of the Inter-American Commission on Human Rights, Paolo Carozza draws on his personal experience to identify and propose solutions for a key flaw in the Inter-American Human Rights System: the division between English-language member states and states with Latin-based languages. Terming this division "The Anglo-Latin Divide," Carozza traces the division not only to linguistic difference, but also to differences in legal traditions. He explains how the differences between Anglo tradition of common law and the Latin tradition of civil law manifest in both substantive and procedural divides within the Inter-American Human Rights system, including in sensitive areas …

Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Douglass Cassel

Journal Articles

If American citizens or corporations commit gross violations of human rights against foreign victims on foreign shores, can the victims sue the Americans for damages in United States federal courts? Until recently the answer was clearly yes. However, following the diverse opinions in the Supreme Court’s 2013 ruling in Kiobel v. Royal Dutch Petroleum Co., the question has divided lower courts to date.

This Article argues that, as a matter of both domestic and international law, and under both the majority and minority rationales in Kiobel, federal courts can and should hear tort suits against American nationals for human rights …

The Future Of Human Rights Litigation After Kiobel, Roger P. Alford

Journal Articles

This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. As others have argued in this issue, that premise may not be correct. Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.

No Excuse: The Failure Of The Icc’S Article 31 “Duress” Definition, Benjamin J. Risacher

Notre Dame Law Review

This Note proceeds in four Parts. Part I traces the historical development of “duress” through the common and civil law systems, World War II cases, the Model Penal Code (MPC) and, finally, through an in-depth analysis of the Erdemovic case before the ICTY Appeals Chamber discussed in the introduction. Part II then discusses “duress” under Article 31 of the Rome Statute and includes a survey of the Article’s drafting history, a statutory analysis of Article 31, and an application of the ICC definition of “duress” to the Erdemovic set of facts. This Part highlights the unjust result that inevitably occurs …

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

New Trends In Latin American Constitutionalism: An Overview, Santiago Legarre

Notre Dame Journal of International & Comparative Law

In this introduction to the issue on New Trends in Latin American Constitutionalism, Santiago Legarre offers his remarks at the opening of the conference on New Trends in Latin American Constitutionalism held at Notre Dame Law School in 2013. After briefly recounting the origins of the conference, Legarre summarizes some of the key modern challenges in Latin America and the role of constitutionalism in addressing these challenges. Legarre pays particular attention to the rapid growth of income inequality in the region. He ultimately concludes that some of the major challenges to the region are rooted in a lack of consensus …

Letter From The Conference Organizer, Pier Pigozzi

Notre Dame Journal of International & Comparative Law

Pier Pigozzi writes to introduce the Spring 2013 conference, "New Trends in Latin American Constitutionalism."

Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri D.K. Basu V. State Of West Bengal, Sam F. Halabi

Notre Dame Journal of International & Comparative Law

The discipline of comparative constitutional law today is focused in significant part on the study of how and why judges use foreign precedent. Scholars debate the propriety of using foreign precedent as “authority,” circumstances under which such use is consistent with democracy (or a product of democratization), and which constitutional traditions may derive the greatest benefit from comparison. While comparative law theorists have long reflected on, and struggled with, a standard disciplinary vocabulary to describe what judges do when they engage in “comparative constitutional law,” the existing scholarship generally distributes judges’ use of foreign precedent into one of three modes …

Ungoverned Spaces, Transnational Crime, And The Prohibition On Extraterritorial Enforcement Jurisdiction In International Law, Dan E. Stigall

Notre Dame Journal of International & Comparative Law

This Article explicates the international legal framework governing State action against transnational crime; it also explores the disparity in what international law permits military actors to do in situations of armed conflict versus what actions civilians may undertake in the course of extraterritorial law enforcement operations. This Article argues that the trend of militarization in the U.S. approach to transnational crime law is, in part, a function of this legal disparity and that this trend could be reversed a degree if international law recognized a greater degree of flexibility for certain limited categories of extraterritorial law enforcement actions by civilian …

Letter From The Editor, Adrienne M. De La Rosa

Notre Dame Journal of International & Comparative Law

A letter from the editor

Conscientious Objection Of Health Care Providers: Lessons From The Experience Of The United States, Soledad Bertelsen

Notre Dame Journal of International & Comparative Law

In recent years, legislation and regulations in different countries of the world have raised questions about the conscientious objection of health care providers. In Spain, the Sexual and Reproductive Health and Voluntary Interruption of Pregnancy Act of 2010 (Sexual and Reproductive Health Act) recognizes the right to conscientious objection of professionals directly involved in the termination of pregnancy but also expands the possibility to perform abortions in relation to previous legislation. The application of the conscientious objection clause, however, leaves multiple questions open, and both the administration and the judiciary have reached different conclusions in its interpretation. The discussion about …

Ecowas's Right To Intervene In Côte D'Ivoire To Install Alassane Ouattara As President-Elect, Julie Dubé Gagnon

Notre Dame Journal of International & Comparative Law

On January 6, 2011, President-elect Alassane Ouattara of Côte d’Ivoire requested the Economic Community of West African States (ECOWAS) to intervene in order to remove incumbent Laurent Gbagbo, who refused to leave power following the democratic presidential elections of November 2010. In December 2010, ECOWAS gave a final ultimatum to Laurent Gbagbo to comply with its request on ceding his throne. Otherwise, ECOWAS warned, it would be compelled to use legitimate force to serve the demands of the Ivorian people. This Article ascertains the illegality of a military intervention for pro-democratic motives in light of the current postelection crisis in …

The Priority Of Persons Revisited, John M. Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood. …

A Response To Harel, Hope, And Schwartz, John M. Finnis

Journal Articles

A seminar held in the Hebrew University of Jerusalem in December 2012 discussed critical comments by Alon Harel, Simon Hope, and Daniel Schwartz on themes and theses in Human Rights and Common Good, volume III of Collected Essays of John Finnis (Oxford University Press, 2011). Revised versions of these comments, and of the response I gave at this seminar, are now published in the Jerusalem Review of Legal Studies. The Response retains the informal and engaged character of this very good academic occasion. Section I considers Harel’s thesis that judicial review of legislation can be defended because my “in-authenticity” …

The Prohibition Of The Use Of Force, Mary O'Connell

Book Chapters

From the Publisher
Chapter 4
This chapter concerns the central international legal rule against violence: Article 2(4) of the United Nations Charter. Article 2(4) generally prohibits the use of force by states. It is a treaty rule that is also widely regarded as a rule of customary international law and, indeed, in certain respects, as a peremptory rule or rule of jus cogens. Article 2(4) was adopted along with the rest of the Charter in 1945 after the catastrophe of the Second World War in which an estimated 60 million people died. Despite its relatively recent adoption, Article 2(4) …

Defining The Badges And Incidents Of Slavery, Jennifer Mason Mcaward

Journal Articles

Most agree that Section Two of the Thirteenth Amendment empowers Congress to legislate regarding the “badges and incidents of slavery.” Few, however, have explored in depth the precise meaning of this concept. The goal of this Article is to provide a historical and conceptual framework for interpreting and identifying the badges and incidents of slavery. It examines the original public meaning of the terms “badge of slavery” and “incident of slavery” as well as how the “badges and incidents” concept has been incorporated into and used in Thirteenth Amendment jurisprudence. It considers several analytical variables from historical, jurisprudential, and policy …

The Catholic Church, Human Rights, And Democracy: Convergence And Conflict With The Modern State, Paolo G. Carozza, Daniel Philpott

Journal Articles

The author traces the history of the Catholic Church's relationship to the modern state, focusing on the idea of sovereignty and the development of human rights and democracy. It argues that the Catholic Church's relationship to human rights and democracy in the modern world can only be understood as reflective of both a historical convergence and a persistent tension and ambivalence. The first part argues for this dual theme in the development of Catholic doctrine, where today, as over the past several centuries, the Church's conception of the common good yields both an embrace of human rights and democracy and …

Esperienza Elementare E Dritto = Elementary Experience And Law, Paolo G. Carozza, Andrea Simoncini, Lorenza Violini, Marta Cartabia

Books

Translated by Mariangela Sullivan

Preface by Julián Carrón

...The essays making up this book reveal that law finds itself at a crossroads that is more anthropological than juridical. Indeed one’s concept of law flows directly from one’s concept of humanity. For this reason it seems to me entirely appropriate that the authors have refused to reduce elementary experience to doctrine or other abstract formulas to be imposed mechanically upon reality. Only an individual capable of feeling one’s own elementary experience alive within herself can make a valuable contribution to the debate that will lead us through this crossroads in the …

Jacques Maritain, Man And The State (1951), Richard W. Garnett

Journal Articles

From the Article

Jacques Maritain was one of the twentieth century’s most important and influential Christian philosophers and political thinkers. That said, his work, thought, and aspirations were not limited by the boundaries of any particular academic disciplines or traditions. His was, as Professor Brennan has observed, a “quest to understand the whole of reality, created and redeemed.” A great scholar of the medieval accomplishments of the Angelic Doctor, St. Thomas Aquinas, Maritain’s distinctive Christian Humanism shaped the Universal Declaration of Human Rights, the Second Vatican Council, and the writing of the late Pope John Paul II.

Ngo Standing And Influence In Regional Human Rights Courts And Commissions, Lloyd Hitoshi Mayer

Journal Articles

This article explores the extent to which nongovernmental organizations (NGOs) have standing to bring claims in the European, Inter-American, and African human rights enforcement systems, examines the degree to which NGOs in fact bring such cases, and analyzes the ramifications of NGO involvement in these systems. Part I of this article considers how NGOs can be involved in the European Court of Human Rights, the Inter-American Human Rights Commission and the Inter-American Court of Human Rights, and the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. As detailed in this part, while …

Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia Jr.

Journal Articles

Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States's constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium–Re-examining Customary International Law and the Federal Courts–aspires to help advance the debate over the status of customary international law in the federal courts.

The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos M. Vizquez, and …

Persone Incapaci E Decisioni Di Fine Vita (Con Uno Sguardo Oltreoceano), O. Carter Snead, Andrea Simoncini

Journal Articles

Title in English: Incapacitated Persons and End of Life Decision Making (with an Across-the-Ocean View) No translation available.

The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward

Journal Articles

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual …

International Human Rights Law And Security Detention, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …

Fifty Years Of The European Court Of Human Rights Viewed By Its Fellow International Courts, Paolo G. Carozza

Book Chapters

Remarks by Paolo Carozza, President of the Inter-American Commission on Human Rights Strasbourg, January 30, 2009

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

Journal Articles

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

Catholic Social Teaching And Global Migration: Bridging The Paradox Of Universal Human Rights And Territorial Self-Determination, Vincent D. Rougeau

Journal Articles

In this essay, I will consider how law, religion, and democratic pluralism revolve around a particular issue: global migration. I use the term global migration to encompass a number of related issues that are often collapsed under the term immigration. In nations that have constructed their identities around waves of settlers or migrants -- places like the United States, Canada, Australia, and New Zealand -- immigration involves the formal reception of foreigners into the host country as potential new citizens. This is just one part of the migration of peoples around the globe. Migration also encompasses emigration, asylum, economic migration,and …