Human Rights Law Commons^™

Transitional Justice In Housing Injustice: The Case Of Housing Rights Violations Within Settler Democracies, Manal Totry-Jubran

Vanderbilt Journal of Transnational Law

The right to housing is recognized by international human rights treaties as an integral part of the right to an adequate standard of living. Many states have ratified these treaties and incorporated protection of some aspects of housing rights into their constitutions and domestic legislation. Other states have not enacted any legislation in recognition of housing rights, but they provide judicial remedies for violations of rights. Despite that, domestic and international reports indicate that housing rights are constantly being violated in countries across the world at different levels.

This Article focuses on housing rights violations within "settler democracies." Such countries …

The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben

Vanderbilt Journal of Transnational Law

Consumers are increasingly demanding that the goods and services they consume be produced in a way that meets their social expectations. By extension, they are exhibiting greater willingness to pay more at the cash register for products made in good working conditions, and they are willing to punish companies that do not satisfy these expectations. Driving these "citizen-consumers" is what this Article terms the "consumer imaginary," which is defined as the narratives that consumers tell themselves about the people that make their things--people whom consumers will likely never meet, and whose lived experiences are distant from their own. Policymakers have …

In Defense Of Human Rights, Karima Bennoune

Vanderbilt Journal of Transnational Law

This Article argues that international human rights law, and the human rights movement more generally, need more defenders than critics in the current international political environment. Groups ranging from academics to governments have taken stances critical of human rights, and this Article seeks to defend the rights framework from some of these while also arguing for the importance of human rights in today's world. Noting that the field of human rights is not beyond criticism, this Article embraces some of those criticisms. However, it suggests that human rights law specialists need to spend at least as much time defending human …

"Human Rights, Responsibilities, And Democracy," Comments On Tasioulas And Moyn Papers: "Symposium On The Future Of International Human Rights Law", Kathryn Sikkink

Vanderbilt Journal of Transnational Law

It is a pleasure and a challenge to comment on these two very different Articles, "Saving Human Rights from Human Rights Law," by John Tasioulas, and 'On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory," by Samuel Moyn. Both are rich, complex, and thought-provoking. To the degree they share any common dimension, it would be their skepticism toward human rights law, and in particular toward the judicialization of human rights law. But the skepticism comes from quite different directions and from their different disciplines. In the case of Tasioulas's paper, the skepticism derives from his belief that legal human …

Looking To The Future: The Scope, Value And Operationalization Of International Human Rights Law, Lorna Mcgregor

Vanderbilt Journal of Transnational Law

The international human rights system of which international human rights law (IHRL) is a part has been critiqued for being ineffective, too legal, insufficiently self-critical, and elitist, with some claiming that it self-generates some of the challenges it faces. This Article challenges this presentation of IHRL and in doing so, sets out three priorities for its future development. These are first, that it should continue to engage in critical analysis of how IHRL can effectively respond to the complex and multifactorial challenges it faces. Second, rather than refrain from developing due to critiques of over expansion, IHRL should prioritize the …

On Human Rights And Majority Politics, Samuel Moyn

Vanderbilt Journal of Transnational Law

This symposium piece is primarily a reading of Felix Frankfurter's dissent in West Virginia State Board of Education v. Barnette, attempting to draw some lessons from his theory of majoritarian rights for our own moment of crisis for the human rights movement. The situations then and now are only partly comparable, but Frankfurter's call for allowing democratic processes to self-correct even when elite shortcuts beckon--including when it comes to defining and protecting rights--provides food for thought.

Whither And Whether With The Formative Aim Thesis, Gopal Sreenivasan

Vanderbilt Journal of Transnational Law

According to John Tasioulas, the formative aim of international human rights law is to give effect to moral human rights (insofar as it is appropriate for international law to do so, through the technique of assigning a uniform set of individual legal rights to all humans). In cases of pure human rights inflation, an international legal human right fails to give effect to any moral human right. Tasioulas regards international legal human rights that fit this criterion as morally unjustified. This Article scrutinises various bases on which the inference underlying his conclusion might be validated and argues that none of …

Access To Justice, Rationality, And Personal Jurisdiction, Adam N. Steinman

Vanderbilt Law Review

After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court's recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court's new case law has unquestionably made it harder to establish general jurisdiction-that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic …

The Political Economy Of Corporate Exit, Susan S. Kuo, Benjamin Means

Vanderbilt Law Review

Critics contend that corporations subvert democracy by using their economic resources to lobby for corporate-friendly policies and to elect accommodating politicians.' Those who take a more sanguine view-notably, a majority of the Supreme Court-reject the claim that corporate dollars corrupt the political process. Yet, there is general agreement that corporate political activity includes financial contributions, lobbying efforts, participation in trade groups, and political advertising, all of which give corporations a "voice" in public decisionmaking.

This Essay contends that the accepted definition of corporate political activity is too narrow and overlooks the importance of "exit." When faced with objectionable laws or …

Rethinking Conspiracy Jurisdiction In Light Of Stream Of Commerce And Effects-Based Jurisdictional Principles, Alex Carver

Vanderbilt Law Review

For decades, some courts have been willing to exercise personal jurisdiction over nonresident defendants based solely on the forum contacts of their coconspirators. This practice, termed "conspiracy jurisdiction," has proven controversial among courts and commentators alike. On one hand, the actions of one member of a conspiracy are ordinarily attributable to other members of the conspiracy, and jurisdiction-conferring acts should arguably be no exception. On the other hand, attributing forum contacts from one actor to another based solely on their joint membership in a civil conspiracy seems to stretch due process protections to the breaking point. This Note provides new …

Investor-State Arbitration And Human Rights, Timothy J. Feighery

Vanderbilt Journal of Entertainment & Technology Law

After decades of growth and popularity, the international investor-state dispute settlement (ISDS) regime has come under intense criticism recently-particularly concerning the perceived chilling effect the regime imposes on states' ability to regulate in the public interest. This Article seeks to contextualize this criticism by examining the historical antecedent of ISDS in international law: the law of diplomatic protection. It proceeds to focus on the flexibility of ISDS as a critical advance over diplomatic protection, and shows how ISDS has evolved over time-particularly as developed states have moved from approaching the regime from a predominantly investment-exporting perspective to a more balanced …

Humanitarian Regulation Of Hostiles: The Decisive Element Of Context, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

Today, isolated force-on-force battles are considered a relic of the past. Instead, armed forces must expect to conduct combined arms maneuver operations in and around civilians and civilian population centers. And this expectation is only increased when anticipating operations against enemies who see embedding their vital assets in densely populated areas as a force multiplier. This perception is based on not only the inherent tactical advantages of embedding assets among civilian population centers (such as ready access to logistics and lines of communication), but also their recognition that the complexity of conducting operations against these assets in a legally compliant …

International Human Rights Law: An Unexpected Threat To Peace, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

It is a great honor to deliver this lecture in honor of the late Dean Robert F. Boden. I am grateful to all of you for attending. My topic tonight is international law and peace among nations. It may seem a poor fit for a lecture honoring Dean Boden. I did not know him, but I have read that Dean Boden was passionately dedicated to teaching law students about the actual day-to-day practice of law. He believed that law schools should be focused on that sort of professional training—not on policy questions or preparing students to be “architects of society,” …

When Genealogy Matters: Intercountry Adoption, International Human Rights, And Global Neoliberalism, Barbara Stark

Vanderbilt Journal of Transnational Law

Genealogy isn't what it used to be. Once genealogy was the route to "legitimacy," whether literally--a "fillius nullius," a child of no one, was illegitimate, a bastard--or more fancifully--a tastefully mounted family crest could be obtained for virtually any surname, for a price. Or genealogy referred to the painstaking search for roots, the recovery of a personal history, the excavation of a trajectory that would give meaning to the present. But we are all legitimate now. And DNA testing provides more information than anyone can process, including, for some, the refutation of cherished ancestral myths, a good chance of developing …

The Evolution And Identification Of The Customary International Law Of Armed Conflict, Sir Michael Wood

Vanderbilt Journal of Transnational Law

Despite the many widely ratified treaties on the law of armed conflict (LOAC, also referred to as international humanitarian law (IHL)), customary international law remains of great importance in this branch of international law. So far as concerns international armed conflicts, customary international humanitarian law (CIHL) is of special importance in connection with states not party to Additional Protocol I of 1977. So far as concerns non-international armed conflicts, CIHL is of crucial importance for all states, since, for the most part, treaty provisions are rudimentary. The International Court of Justice has also had occasion to state that "a great …

Proportionality Under International Humanitarian Law: The "Reasonable Military Commander" Standard And Reverberating Effects, Ian Henderson, Kate Reece

Vanderbilt Journal of Transnational Law

The principle of proportionality protects civilians and civilian objects against expected incidental harm from an attack that is excessive to the military advantage anticipated from the attack. However, despite its status as a fundamental norm of international humanitarian law (IHL), key terms are not defined in relevant treaties nor do they benefit from critical judicial explanation. This has caused challenges for both academics and military commanders alike in explaining and applying the test for proportionality.

The Article expands upon two points that were raised and generated interesting discussion at The Second Israel Defense Forces International Conference on the Law of …

Understanding Serious Bodily Or Mental Harm As An Act Of Genocide, Nema Milaninia

Vanderbilt Journal of Transnational Law

What is genocide? The typical answer immediately brings to mind incidents of large-scale killings like those in World War II, Rwanda, and Srebrenica. The same images, however, create an incomplete and potentially misleading picture of the crime. Genocide is a far broader concept than mass executions. The crime was deliberately designed to capture the variant and innumerable ways individuals or organizations might try to destroy racial, ethnic, religious, or national groups. And while certain acts, like rape and other acts of sexual violence, never formed part of the crime's initial understanding, these acts are now accepted as tools of destruction …

Reexamining Eli Lilly V. Canada: A Human Rights Approach To Investor-State Disputes, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed. …

International Law In The Post-Human Rights Era, Ingrid (Wuerth) Brunk

Vanderbilt Law School Faculty Publications

International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what might be termed the golden-age of international human rights law is over, at least for now. Whether measured in terms of the increasing number of authoritarian governments, the decline in international human rights enforcement architecture such as the Responsibility to Protect and the Alien Tort Statute, the growing …

Contorting Common Article 3, Michael A. Newton

Vanderbilt Law School Faculty Publications

This short Essay describes the circularity of support between the ICRC and the Pre-Trial Chambers of the ICC. Its successive sections describe the problematic potential of extending the substantive coverage of Common Article 3 to encompass members of the same armed group who commit criminal acts against one another.' In particular, the Revised Commentary fails to address the due process ramifications of an enlarged Common Article 3, even as the development of the text documented by the readily available negotiating record warrants an alternative understanding. Lastly, the ICRC position could indicate a radical shift in the very design of the …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

Vanderbilt Journal of Entertainment & Technology Law

This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Gene Editing And The Rise Of Designer Babies, Tara R. Melillo

Vanderbilt Journal of Transnational Law

Nearly as long as human beings have existed on this earth, many people have sought out the ideal of perfecting their population: infanticide in Sparta during the Hellenistic era; compulsory sterilization in the 1920s in the United States; and the unimaginable atrocities of the Holocaust in the 1940s in Europe. The goal of alleged perfection leaves many hesitant to repeat the mistakes of our past. Today, a new frontier of science has emerged, gene editing using CRISPR-Cas9, reigniting ethical debate as to how far humans should go in manipulating the population. While many proponents herald this technology as a potential …

The Human Rights Obligations Of State-Owned Enterprises: Emerging Conceptual Structures And Principles In National And International Law And Policy, Larry C. Backer

Vanderbilt Journal of Transnational Law

The distinction between the obligations of public and private entities, and their relation to law, is well known in classical political and legal theory. States have a duty that is undertaken through law; enterprises have a responsibility that is embedded in their governance. These fundamental divisions form part of the current international efforts to institutionalize human rights-related norms on and through states and enterprises, and most notably through the U.N. Guiding Principles for Business and Human Rights. The problems of conforming to evolving norms becomes more difficult where states project their authority through commercial enterprises.

Hunt Or Be Hunted, Jeremiah Cioffi

Vanderbilt Journal of Transnational Law

Bulgaria is the geographic and political center of the European migrant crisis, which has the Bulgarian citizenry uneasy about its security. Bulgaria's societal disdain for Middle Eastern migrants stems from hundreds of years of subjugation and non-Muslim Bulgarians' second-class citizenship under the Ottoman Empire. Roving bands of civilian migrant hunters have begun taking the law into their own hands by capturing migrants and turning them over to the Bulgarian authorities for deportation. This Note discusses the illegality of such migrant hunting under Bulgarian domestic law. It then discusses how the impunity enjoyed by migrant hunters is an abdication of Bulgarian …

Human Trafficking In Multinational Supply Chains: A Corporate Director's Fiduciary Duty To Monitor And Eliminate Human Trafficking Violations, Laura Ezell

Vanderbilt Law Review

Corporate directors cannot afford to remain ignorant of human trafficking violations in corporate supply chains.' Corporations in the United States that benefit from supply-chain trafficking have been able to escape liability when the trafficking occurs in the labor force of their suppliers instead of the labor force of the corporation itself. However, the 2008 reauthorization of the Trafficking Victims Protection Act specifically targets this behavior under its criminal and civil provisions regarding financial benefit from labor trafficking. Corporations with trafficking violations in their supply chains risk criminal prosecution and civil suits filed by foreign and domestic victims, and the directors …

Justice By Proxy: Combatting Forced Labor In The Greater Mekong Subregion By Holding U.S. Corporations Liable, Sasha Beatty

Vanderbilt Journal of Transnational Law

Human trafficking in Southeast Asia is still a thriving and lucrative industry. Despite these blatant human rights violations, international and local laws have struggled to keep ahead of the rapidly growing human trafficking industry. The result is a legal system that cannot effectively combat human trafficking in this region. This Note highlights the United States' significant financial contribution to the growth of this slavery industry, particularly in the purchase of significant quantities of goods produced by forced labor in this region. This Note argues that a way to expedite change in this region should be from external, foreign law targeting …

Politics By Other Means: The Battle Over The Classification Of Asymmetrical Conflicts, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift …

"Measuring" The Erosion Of Academic Freedom As An International Human Right, Klaus D. Beiter, Terence Karran, Kwadwo Appiagyei-Atua

Vanderbilt Journal of Transnational Law

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries' constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but "politically" binding, and which concretizes international human rights requirements in respect …

A Post-Millennial Inquiry Into The United Nations Law Of Self-Determination: A Right To Unilateral Non-Colonial Secession?, Dr. Glen Anderson

Vanderbilt Journal of Transnational Law

The present Article inquires whether a right to unilateral non-colonial (UNC) secession is grounded in the United Nations (UN) law of self-determination. The Article argues that peoples subjected to deliberate, sustained, and systematic human rights abuses in extremis (e.g., ethnic cleansing, mass killings, or genocide) by the existing state have an international customary law right to UNC secessionist self-determination. This right is coextensive with the "remedial-rights-only" philosophical approach to UNC secession. The Article further argues that in the post-millennial era two developments are likely for the law of UNC secessionist self-determination: first, the right will become available in response to …

Human Trafficking And Labor Migration: The Dichotomous Law And Complex Realities Of Filipina Entertainers In South Korea And Suggestions For Integrated And Contextualized Legal Responses, Yoon J. Shin

Vanderbilt Journal of Transnational Law

This Article examines the complex legal situation of Filipina "entertainers" in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The Article investigates how the dichotomous law fails to recognize these entertainers as either trafficking victims or as migrant workers. The law therefore denies proper legal rights and remedies for the serious rights violations they suffer in the destination state. This research demonstrates that these migrants have diverse needs, aspirations, and transnational experiences that embrace both victimhood and agency. It illuminates the fundamental problems of the current global anti-trafficking regime, …