Human Rights Law Commons^™

Slamming The Courthouse Door: 25 Years Of Evidence For Repealing The Prison Litigation Reform Act, Andrea Fenster, Margo Schlanger

Other Publications

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act. The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits. For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find …

U.S. Race Relations And Foreign Policy, Susan D. Page

Michigan Journal of Race and Law

It is easy for Americans to think that the world’s most egregious human rights abuses happen in other countries. In reality, our history is plagued by injustices, and our present reality is still stained by racism and inequality. While the Michigan Journal of International Law usually publishes only pieces with a global focus, we felt it prudent in these critically important times not to shy away from the problems facing our own country. We must understand our own history before we can strive to form a better union, whether the union be the United States or the United Nations. Ambassador …

Increasing Case Traffic: Expanding The International Criminal Court's Focus On Human Trafficking Cases, Nadia Alhadi

Michigan Journal of International Law

Human trafficking falls within the jurisdictional competence of the International Criminal Court (“ICC”) as one of the article 7 crimes against humanity, whether committed in an atmosphere of conflict or in times of relative peace. Despite the ICC’s jurisdiction, as well as the globally pervasive nature of peacetime trafficking in particular, the ICC has not yet heard a human trafficking case.

Accountability at the international level, however, is crucial, and the ICC’s oversight has the potential to fill gaps in the current anti-trafficking regime. This note explores this potential, and then examines whether the text of the Rome Statute or …

Unmuddying The Waters: Evaluating The Legal Basis Of The Human Right To Water Under Treaty Law, Customary International Law, And The General Principles Of Law, Ndjodi Ndeunyema

Michigan Journal of International Law

This article evaluates the existence of a freestanding, general human right to water under each of the three principal sources of international law: treaty, customary international law, and the general principles of law. To date, the right to water has been derived from treaty law, most prominently as part of the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights (as implied by General Comment 15 to the ICESCR). The potential importance of a non-treaty based right to water––as a matter of customary international law or a general principle …

Making The Case For A Right To A Healthy Environment For The Protection Of Vulnerable Communities: A Case Of Coal-Ash Disaster In Puerto Rico, Sarah Dávila-Ruhaak

Michigan Journal of Environmental & Administrative Law

The connection between the environment and human rights is not a surprising one. The enjoyment of human rights depends on a person’s ability to live free from interference and to have his or her rights protected. The interdependence of human rights and the protection of the environment is manifested in the full and effective enjoyment of the right to a healthy environment. This article argues that in order to protect vulnerable persons and communities facing environmental harm, a human rights framework—specifically the right to a healthy environment—must be applied. A human rights approach complements environmental justice work, recognizing that individuals …

Introduction To The Symposium On Soft And Hard Law On Business And Human Rights, Steven R. Ratner

Articles

This symposium turns to a major debate within a field of international law that has moved from the periphery to center stage in just a few decades—business and human rights, or BHR: Can and should international law's approach to the human rights impacts of business activity shift from today's mostly soft-law framework to a multilateral treaty regime? While advocates for and against such a treaty debate this point at the UN Human Rights Council and other venues, this symposium examines the problem from four theoretical perspectives. Each contribution offers insights for practitioners and scholars alike, but they suggest no easy …

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

Taxation And Business: The Human Rights Dimension Of Corporate Tax Practices, Reuven S. Avi-Yonah

Law & Economics Working Papers

If we want to narrow the North-South divide that threatens our world, some limits on tax competition are inevitable. The world faces a crucial choice in the 2020s. We can either continue retreating from globalization in favor of xenophobic nationalism, tariffs, immigration restrictions, and exchange controls. That road leads ultimately to war, as it did in the 1930s. Or we can revive globalization by investing in a robust social safety net, infrastructure, education, and job creation. While more needs to be done, we have made significant progress in curbing tax competition in the last decade. The key move now is …

Series Editor's Preface, James C. Hathaway

Other Publications

Could we – should we – think differently about the ways in which refugees are assisted and protected? Is it possible to turn traditional thinking on its head by seeing refugees not as the objects of protection and assistance, but instead as the architects and managers of solutions?

Introduction: International Law Governing Armed Conflict, Christian Marxsen, Anne Peters

Book Chapters

Wars are emergency situations, but in contrast to the saying according to which necessity knows no law, they are not lawless situations at all. Quite to the contrary, an extensive body of international treaties and customary international law provides detailed regulations. However, which rules do and should apply to what kinds of situation is a hotly debated issue and the subject of this book. Different regulatory paradigms are competing for how wartime situations shall be regulated – with significant legal, practical and institutional implications. This book approaches the legal issue in a Trialogue. The characteristic feature of a Trialogue is …

Reinvigorating The Human Right To Technology, Haochen Sun

Michigan Journal of International Law

The right to technology is a forgotten human right. Dating back to 1948, the right was established by the Universal Declaration of Human Rights (“UDHR”) in response to the massive destruction wrought by technologically advanced weapons in the Second World War. This human right embodies one of the most profound lessons the framers of the UDHR learned from this war: Technology must benefit humanity rather than harm it.

It has been more than seventy years since the adoption of the UDHR, and technology has advanced at a rapid pace and become more important than ever in our daily lives. Yet …

Taxation And Human Rights: A Delicate Balance, Reuven S. Avi-Yonah, Gianluca Mazzoni

Book Chapters

This chapter assesses the appropriate balance between strengthening tax revenue collection tools to ensure states have adequate resources to meet their human rights obligations, and protecting taxpayer rights to privacy and data security. On the one hand, the ability of rich residents of developing countries and multinational corporations operating in those countries to evade or avoid taxation is directly linked to violations of human rights in those countries, especially from the perspective of social and economic rights like health and education. Providing such countries with the means to fight back and collect adequate revenues is essential in advancing such rights. …

Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway

Articles

The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.

Between The Margins And The Mainstream: The Case Of Women's Rights, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

This chapter investigates the conceptual limits of the field of women’s rights. It identifies two main currents of activity in the field: the elaboration of human rights standards, particularly through the UN Convention on the Elimination of All Forms of Discrimination against Women of 1979; and the development of the ‘Women, Peace and Security’ agenda by the UN Security Council since 2000. Both areas are limited in their understandings of the diverse lives of women. The chapter argues that campaigns for the recognition of women’s rights shuttle between the mainstream and the margins of international law and that the structural …

The Hague Rules On Business And Human Rights Arbitration, Bruno Simma, Diane Desierto, Martin Doe Rodriguez, Jan Eijsbouts, Ursula Kriebaum, Pablo Lumerman, Abiola Makinwa, Richard Meeran, Sergio Puig, Steven Ratner, Giorgia Sangiuolo, Martijn Scheltema, Anne Van Aaken, Katerina Yiannibas

Other Publications

The Hague Rules on Business and Human Rights Arbitration provide a set of procedures for the arbitration of disputes related to the impact of business activities on human rights. The Hague Rules are based on the Arbitration Rules of the United Nations Commission on International Trade Law (with new article 1, paragraph 4, as adopted in 2013) (the “UNCITRAL Rules”), with modifications needed to address certain issues likely to arise in the context of business and human rights disputes. Each article is accompanied by a commentary, which includes background on the drafting of various provisions in the Rules, explaining in …

International Civil Individual Responsibility And The Security Council: Building The Foundations Of A General Regime, Vincent-Joël Proulx

Michigan Journal of International Law

This Article focuses on a few tools at the disposal of the United Nations Security Council (“UNSC”) to enhance individual (read: civil) responsibility concerning nonstate terrorist actors with a view to opening other avenues of inquiry regarding other subversive nonstate actors (“NSAs”), for instance in the areas of transnational torts, human rights (“HR”) violations, and environmental damage caused by business entities. As discussed in Part V, recent developments surrounding the application of the Alien Tort Claims Act (“ATCA”) in the United States and the prospect of establishing a basis for universal civil jurisdiction further signal that no such solid basis …

Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel

University of Michigan Journal of Law Reform

The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …

Religious Slaughter And Animal Welfare Revisited: Cjeu, Liga Van Moskeeen En Islamitische Organisaties Provincie Antwerpen (2018), Anne Peters

Articles

The article comments on a Grand Chamber judgment by the Court of the European Union on animal slaughter according to Islamic prescriptions. The relevant European Union laws prescribe that religious slaughter without stunning of the animal may only take place in approved slaughterhouses. This causes a shortage during the Muslim Feast of Sacrifice in the Belgian province ofAntwerp. The EU law provisions are in conformity with the animal welfare mainstreaming clause of the Treaty on the Functioning of the European Union. Moreover, the EU regulation and its application in the concrete case does not violate the fundamental right of free …

From Pelican Bay To Palestine: The Legal Normalization Of Force-Feeding Hunger-Strikers, Azadeh Shahshahani, Priya Arvind Patel

Michigan Journal of Race and Law

Hunger-strikes present a challenge to state authority and abuse from powerless individuals with limited access to various forms of protest and speech—those in detention. For as long as hunger-strikes have occurred throughout history, governments have force-fed strikers out of a stated obligation to preserve life. Some of the earliest known hunger-strikers, British suffragettes, were force-fed and even died as a result of these invasive procedures during the second half of the 19th century.

This Article examines the rationale and necessity behind hunger strikes for imprisoned individuals, the prevailing issues behind force-feeding, the international public response to force-feeding, and the legal …

Access To Justice In The United Nations Human Rights Committee, Vera Shikhelman

Michigan Journal of International Law

This Article has two main purposes. The first is to describe and evaluate empirically the right of individuals to access the HRC under the OP in light of the special goals of this procedure as perceived by the different stakeholders. The second is to recommend ways to improve individuals’ access to the HRC and thereby to international justice in general. In order to address the first question, the Article uses a mixed-methods approach—a combination of quantitative and qualitative research methods.

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined …

Justice In Syria: Individual Criminal Liability For Highest Officials In The Assad Regime, Seema Kassab

Michigan Journal of International Law

Seven years have passed since revolution broke out in Syria in March of 2011. During those six years, hundreds of thousands of Syrians lost their lives, millions of Syrians were internally displaced or left the country seeking refuge, and a beautiful and diverse country was hijacked and terrorized by civil war. Every day in Syria, people are detained, tortured, raped, and killed. Attacks on homes, hospitals, markets, and schools are common occurrences. At this stage of the conflict, there is little doubt that it is the most horrific and dire humanitarian crisis since World War II. The conflict began as …

Human Rights, Christine M. Chinkin

Book Chapters

The legalisation and judicialisation of international human rights have founded arguments that human rights constitutes a sub-discipline of international law, a ‘distinct jurisprudential phenomenon’, indeed a ‘special law’, central to the anxieties about the fragmentation of international law. The human rights world is a very different one from that envisaged by the VCLT: the latter is an empty, amoral world where States have reciprocal dealings only with other States, where there are no people hurt by States’ actions and demanding reparations, no international institutions creating special mechanisms peopled by experts for monitoring and reporting and no non-governmental organizations (NGOs) demanding …

Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova

University of Michigan Journal of Law Reform

One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …

Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway

Michigan Journal of International Law

It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.

The Michigan Guidelines On Refugee Freedom Of Movement

Michigan Journal of International Law

Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond Eastern Europe to other regions—a growth …

The International Right To Health Care: A Legal And Moral Defense, Michael Da Silva

Michigan Journal of International Law

In the following, I outline the case against the international right to health care and explain why recognition of such a right is still necessary. The argument is explicitly limited to international human rights law and is primarily descriptive in nature, but I go on to explain the moral reasons to accept this account. Both the positive law and moral reasoning could be used in other health rights debates, but I do not attempt to make such claims here.

The structure of my work is as follows. I first outline three problems with recognizing an international right to health care. …

Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck

Michigan Journal of International Law

This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”

Dialog About A New Asylum System, James C. Hathaway

Articles

The mechanisms for implementing the obligations under the Refugee Convention are fiawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. A five-point plan could revitalize the Refugee Convention. A managed and collectivized approach to the implementation of refugee protection obligations would include planning for refugee movements, embracing common but differentiated State responsibility and international administration of refugee protection.