Human Rights Law Commons^™

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Agricultural Biotechnology: Drawing On International Law To Promote Progress, J. Janewa Oseitutu

Faculty Publications

In Bowman v. Monsanto, the Supreme Court declined to apply the principle of exhaustion to limit the patentee’s ability to control the reproduction of self-replicating inventions. This decision was justified from a patent law perspective on the basis that patent holder has a right to prevent others from making the invention. But what happens when we take other perspectives into account? For instance, a farmer might have human rights or other rights that may need to be balanced against the patentee’s right. Since globalized intellectual property standards were established through international agreements and much of the resistance to intellectual property …

Corporate "Human Rights" To Intellectual Property Protection?, J. Janewa Oseitutu

Faculty Publications

The global intellectual property system protects the interests of intellectual property owners, sometimes to the detriment of competing interests like public health or access to knowledge. Some scholars have proposed a human rights framework for intellectual property as a way to inject balance into the current system. However, the assertion that human rights will bring balance is often coupled with the assumption that corporations are, by definition, excluded from human rights-based intellectual property claims. Yet, corporations have used, and are likely to continue to use, human rights law to ground their intellectual property claims. Since multinational corporations were a major …

Beyond Culture: Human Rights Universalisms Versus Religious And Cultural Relativism In The Activism For Gender Justice, Cyra Akila Choudhury

Faculty Publications

No abstract provided.

Standing For Human Rights Abroad, Evan J. Criddle

Faculty Publications

When may states impose coercive measures such as asset freezes, trade embargos, and investment restrictions to protect the human rights of foreign nationals abroad? Drawing inspiration from Hugo Grotius’s guardianship account of humanitarian intervention, this Article offers a new theory of states’ standing to enforce human rights abroad: under some circumstances, international law authorizes states to impose countermeasures as fiduciary representatives, asserting the human rights of oppressed foreign peoples for the benefit of those peoples. The fiduciary theory explains why all states may use countermeasures to vindicate the human rights of foreign nationals abroad despite the fact that they do …

Protecting Human Rights During Emergencies: Delegation, Derogation, And Deference, Evan J. Criddle

Faculty Publications

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximize human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals …

Disability, Development, And Human Rights: A Mandate And Framework For International Financial Institutions, Michael Ashley Stein, Penelope J. S. Stein

Faculty Publications

No abstract provided.

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Faculty Publications

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.

The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

Humanitarian Financial Intervention, Evan J. Criddle

Faculty Publications

Over the past several decades, states have used international asset freezes with increasing frequency as a mechanism for promoting human rights abroad. Yet the international law governing this mechanism, which I refer to as ‘humanitarian financial intervention’, remains fragmented. This article offers the first systematic legal analysis of humanitarian financial intervention. It identifies six humanitarian purposes that states may pursue through asset freezes: preserving foreign assets from misappropriation, incapacitating foreign states or foreign nationals, coercing foreign states or foreign nationals to forsake abusive practices, compensating victims, ameliorating humanitarian crises through humanitarian aid or postconflict reconstruction, and punishing human rights violators. …

China’S Human Rights Footprint In Africa, Timothy Webster

Faculty Publications

A significant amount of recent scholarship and commentary accuses China of plundering the African continent, coddling its dictators, and flouting labor and environmental standards. This paper makes the counterintuitive claim that, despite irrefutable cases of abuse, China’s engagement with Africa has actually improved the human rights conditions of millions of Africans. First, it places China’s abuses in context, showing that they differ little from the abuses and patronage politics of the major Western powers. Second, it examines the evolution of international relations between China and various African countries, from the exportation of political revolution in the 1950s and 1960s, to …

Interest-Balancing Vs. Fiduciary Duty: Two Models For National Security Law, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

No abstract provided.

Note: Aimed At Protecting Ethnic Groups Or Women? A Look At Forced Pregnancy Under The Rome Statute, Alyson M. Drake

Faculty Publications

No abstract provided.

Proportionality In Counterinsurgency: A Relational Theory, Evan J. Criddle

Faculty Publications

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use …

Human Rights, Emergencies, And The Rule Of Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

This article illuminates the normative basis for international law’s regulation of public emergencies by arguing that human rights are best conceived as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary theory disarms Carl Schmitt’s critique of constitutionalism by explaining how emergency powers can be reconciled with the rule of law.

Bringing Nuremberg Home: Justice Jackson's Path Back To Buffalo, October 4, 1946, John Q. Barrett

Faculty Publications

During one permanently consequential decade in the history of the United States and the world, United States Supreme Court Justice Robert H. Jackson delivered three major lectures at the University of Buffalo. The last of these was Jackson's May 9, 1951, James McCormick Mitchell Lecture, "Wartime Security and Liberty under Law," which inaugurated this distinguished lecture series. Justice Jackson's first formal lecture at the University of Buffalo occurred on February 23, 1942, halfway through his first year as a Supreme Court Justice and just twelve weeks after the attack on Pearl Harbor brought the United States into World War II. …

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively …

Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, Cyra Akila Choudhury

Faculty Publications

This article examines the global export of domestic U.S. legal projects and strategies in the realm of family law and gender justice to South Asia. While such projects have undoubtedly achieved substantial gains for women in the U.S., there have also been costs. At a remove of two decades, scholars have now begun to theorize those costs and argue that feminism needs to reconsider its commitments to particular projects that have been held central to women’s emancipation. Yet much of these critiques have not reached the transnational women’s movements that are led by U.S. feminist activists and scholars. Relying on …

The Price Of The Ottoman Failure, Mark L. Movsesian

Faculty Publications

(Excerpt)

The question of the implications of secularization for Christian communities in today’s Middle East is a difficult one, both because the extent of contemporary secularization in the region is contested, and because the term itself has so many different meanings. Nonetheless, a preliminary consideration imposes itself. Whatever else it means, secularization means legal equality for religious minorities, including Christians. Formal equality often exists in the Middle East today. Yet legal restrictions – apostasy prosecutions, limitations on clergy and churches, and so on – continue to pose real threats to Christians. Moreover, as Abdullahi An-Na‘im notes, ‘tension with the traditional …

The Trouble With Treaties: Immigration And Judicial Law, Angela M. Banks

Faculty Publications

No abstract provided.

Monitoring The Convention On The Rights Of Persons With Disabilities: Innovations, Lost Opportunities, And Future Potential, Michael Ashley Stein, Janet E. Lord

Faculty Publications

As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) protects some 650 million persons with disabilities. The CRPD also has an opportunity to progressively reconfigure the structure and process of human rights oversight. While the overall framework for monitoring and implementing the CRPD resembles existing core human rights instruments, it has some notable features. The CPRD Committee is endowed with several innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more …

International Human Rights Law In Japan: The View At Thirty, Timothy Webster

Faculty Publications

Japanese courts have become increasingly open to the use of international human rights law in the past two decades. This paper examines several of the key decisions that reflect the judiciary's embrace of international law, particularly in the areas of criminal procedure and minority rights. I argue that the judiciary has eclipsed the other branches of government as the primary disseminator of human rights norms in Japan.

Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins

Faculty Publications

No abstract provided.

Rethinking International Women's Human Rights Through Eve Sedgwick, Darren Rosenblum

Faculty Publications

(Excerpt)

Thanks to Janet Halley and Jeannie Suk for organizing this amazing workshop. Since the death of Eve Kosofsky Sedgwick, I have wanted to honor her memory, and this panel is the perfect venue. Sedgwick's foundational understandings of sexuality, gender, and identity set the stage for much of my work and that of those I admire.

My own work looks at how the state regulates gender in the "public" sphere. I attempt to challenge the tensions and intersections among international and comparative notions of equality and identity. Group identity constructions vary across cultural lines and conflict with liberal notions of …

Elusive Equality: The Armenian Genocide And The Failure Of Ottoman Legal Reform, Mark L. Movsesian

Faculty Publications

I would like to thank the organizers for inviting me to deliver some remarks this morning. By way of background, I am not a historian or genocide scholar, but a law professor with an interest in comparative law and religion. Comparative law and religion is a relatively new field. It explores how different legal regimes reflect, and influence, the relationships that religious communities have with the state and with each other. My recent work compares Islamic and Christian conceptions of law, a subject that has engaged Muslims and Christians since their first encounters in the seventh century.

When I approach …

From Kosovo To Catalonia: Separatism And Integration In Europe, Christopher J. Borgen

Faculty Publications

In July 2010 the International Court of Justice rendered its Advisory Opinion on the legality of Kosovo's declaration of independence and the Constitutional Court of Spain rendered an opinion concerning the autonomy of Catalonia. Two very different cases, from very different places, decided by very different courts. Nonetheless, they each provide insights on the issue of separatism in the midst of European integration. Does the Kosovo opinion open the door for other separatist groups? Does the process of European integration increase or undercut separatism? In addressing these questions, this article proceeds in three main parts. Part A briefly recaps the …

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

Book Review Of Global Responsibility For Human Rights: World Poverty And The Development Of International Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

Social Rights And The Relational Value Of The Rights To Participate In Sport, Recreation And Play, Janet E. Lord, Michael Ashley Stein

Faculty Publications

No abstract provided.

Atrocity Crimes Litigation: 2008 Year-In-Review, Beth Van Schaack

Faculty Publications

This survey of 2008's top developments in these international fora will focus on the law governing international crimes and applicable forms of responsibility. Several trends in the law are immediately apparent. The tribunals continue to delineate and clarify the interfaces between the various international crimes, particularly war crimes and crimes against humanity, which may be committed simultaneously or in parallel with each other. Several important cases went to judgment in 2008 that address war crimes drawn from the Hague tradition of international humanitarian law, and the international courts are demonstrating a greater facility for adjudicating highly technical aspects of this …