Human Rights Law Commons^™

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Human Development As A Core Objective Of Global Intellectual Property, J. Janewa Oseitutu

Faculty Publications

Global intellectual property obligations shape domestic laws and policies. More than twenty years since the first multilateral trade-based intellectual property agreement, critics contend that global intellectual property law prioritizes intellectual property rights over other interests, and profits over people. Faced with international intellectual-property obligations, nations have been forced to justify laws and policies designed to promote human development in areas such as health and education as exceptions to intellectual property protection. This is the result of legal interpretations that treat the objectives of intellectual property protection and human development as inconsistent with one another. Drawing on the objectives of trade …

Some Newly Emergent Geographies Of Injustice: Boundaries And Borders In International Law, Upendra V. Baxi

Indiana Journal of Global Legal Studies

This conversation examines the relationship between the boundaries and borders in international law and the production of geographies of injustice through the lens of the colonial epistemologies, especially of private international law in the face of mass social disasters like the archetypal Bhopal catastrophe. I also address the languages and logics of coloniality and postcoloniality, as states of consciousness and social organization, under the complex and contradictory unity of neoliberalism.

To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein

Indiana Journal of Global Legal Studies

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …

Rfras And Reasonableness, Steve Sanders

Indiana Law Journal

The organized opponents of legal and social equality for gays and lesbians, particularly the foes of marriage for same-sex couples, have coalesced in recent years around the rallying cry of "religious liberty." In 2015, the conflict between LGBT rights and religious liberty intensified as legislators in seventeen states considered adopting Religious Freedom Restoration Acts (RFRAs). Most of the national attention focused on Indiana, where legislators adopted a RFRA under pressure from religious conservatives, only to later amend it under pressure from business and civic leaders over concerns that the law sent a message endorsing anti-gay discrimination.

RFRAs, which typically require …

Human Rights And Extractive Industries: Environmental Law And Standards, Sara Seck

Articles, Book Chapters, & Popular Press

The importance of environmental laws and standards for sustainable development of extractive industries has been well recognized by the international community for decades. More recently, the relationship between human rights and environmental protection has received greater attention in light of increased global and local recognition of both substantive and procedural environmental rights. Extractive industries search for, discover and develop natural resources in countries in which the governmental and civil society institutions necessary to protect human rights may not exist or where governments lack the capacity or will to effectively ensure the protection of human rights. Allegations of human rights violations …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Faculty Scholarship

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Poetic Justice, Darrell Cannon

Public Interest Law Reporter

No abstract provided.

The Invisibility Of Female Farmworkers: How Current Workers' Rights Legislation Fails To Adequately Protect Female Farmworkers And Exposes Them To Serious Health And Safety Risks, Martha Laura Garcia

Public Interest Law Reporter

Migrant and seasonal farmworkers are one of the most isolated and vulnerable population groups in the United States. Not only is the nature of their work exhausting and dangerous, but many times, the workers face other challenges, like cultural and language barriers and limited access to legal, health, and educational services. Female farmworkers are particularly vulnerable to the many risks seasonal and migrant farmworkers face, with the additional challenge of having limited forms of legal relief. By giving an overview of current labor laws and presenting the main risks female farmworkers face, this article will demonstrate that labor laws and …

Tunnel Vision: How The System Chooses Its Target, Alison Hill

Public Interest Law Reporter

No abstract provided.

Many Poor Americans Are Not Getting Access To Clean Drinking Water, A Basic Human Right, Keimer Raymond

Public Interest Law Reporter

No abstract provided.

Reform Demanded By Minorities On Police's Use Of Excessive Force And The U.S. Government's Resistance To Change, Jessica Younan

Public Interest Law Reporter

No abstract provided.

Baxian Tremf Anxieties And Patterns Of Norm Entrepreneurship In Canada-Nigerian Human Rights Engagements: A Theoretical Overview, Obiora C. Okafor

Articles & Book Chapters

The article argues that the evidence that has been systematically analyzed in the study that grounds this volume at once support and undermine certain elements of the two theoretical frameworks that grounded the research: Upendra Baxi’s germinal theory on the emergence to global dominance of a kind of “trade-related market-friendly human rights” (TREMF) paradigm/discourse/mentality, and Martha Finnemore and Karthryn Sikikink’s strategic social constructivist theory on the role of the norm entrepreneur in generating and driving the so-called human rights “norm life cycles.” The article then suggests, in consequence, that both of these theoretical frameworks require a (modest) measure of refinement.

The Nature, Attainments, Problems And Prospects Of Canadian-Nigerian Human Rights Engagements: An Analytical Overview, Obiora C. Okafor

Articles & Book Chapters

By way of a fully developed conclusion, this article offers a broad analytical overview of the insights that have been jointly and severally generated by the main sub-studies on which the articles in this volume are based. It offers such overarching discussions, one after the other, in relation to the nature, attainments, problems, and prospects of Canadian-Nigerian international human rights engagements. Drawing upon these analytical insights, the article then makes some pertinent recommendations that are addressed to the relevant stakeholders, especially in Canada and Nigeria, i.e. policy-makers, practitioners and theorists alike (depending on which of the itemized points they find …

Poverty In The Human Rights Jurisprudence Of The Nigerian Appellate Courts (1999-2011), Obiora C. Okafor, Basil E. Ugochukwu

Articles & Book Chapters

The major objective of this article is to examine the extent to which the human rights jurisprudence of the Nigerian appellate courts has been sensitive and/or receptive to the socio-economic and political claims of Nigeria’s large population of the poor and marginalized. In particular, the article considers: the extent to which Nigerian human rights jurisprudence has either facilitated or hindered the efforts of the poor to ameliorate their own poverty; the kinds of conceptual apparatuses and analyses utilized by the Nigerian courts in examining the issues brought before it that concerned the specific conditions of the poor; and the key …

The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Legal Formulations Of A Human Right To Information: Defining A Global Consensus, Kimberli Morris Kelmor

Law Library Faculty Works

There is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of definitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through all levels of government including national sub-constitutional laws, national constitutions, and regional and international treaties. In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. Thus, the increasing number …

Exposing The Gendered Myth Of Post Conflict Transition: The Transformative Power Of Economic And Social Rights, Madeleine Rees, Christine M. Chinkin

Articles

Post conflict transition has become an industry, with a plethora of states, NGOs, experts, institutes, academics and U.N. bodies, all seeking to find the right formula to effect real and sustainable peace where previously there has been none. It is valuable and important, nevertheless, to note that "more than [fifty] percent of peace agreements fail within the first five years of signature". The evidence is clear: transitions are not working.

In this essay we seek to explain and deconstruct some of the terminology applied to post conflict situations by briefly looking at conceptss of "gender equality" participation, political economy, neo-liberalism, …

Opinion 2/13 Of The Court (C.J.E.U.), Daniel Halberstam

Articles

Opinion 2/13 of the Court of Justice of the European Union (CJEU) declared the draft agreement on European Union accession to the European Convention on Human Rights (ECHR) incompatible with the Treaty on European Union. The Opinion comes toward the end of a long and gradual process of incorporating human and fundamental rights principles into the legal system of the European Community and its successor, the European Union. Opinion 2/13 sends the Commission back to the drawing board on what has long been seen as the capstone of that process—EU accession to the Strasbourg human rights regime as an external …

Examining The Legality Of The Guantánamo Bay Detention Center According To International Humanitarian Law And International Human Rights Law, Sydney T. Winchester

Honors Undergraduate Theses

The purpose of this research paper is to examine how international humanitarian law (IHL) and international human rights law (IHRL) are applied to the Guantánamo Bay detention center. This paper was completed through the research of international treaties, court cases, and secondary sources that thoroughly discussed issues pertaining to Guantánamo and international law.

This paper first examines the differences between the two laws by looking at the particular roles each is meant to play in the subject of international law, as well as how the two have been applied thus far to the situation at Guantánamo. Second, the paper discusses …

The Variation In The Use Of Sub-Regional Integration Courts Between Business And Human Rights Actors: The Case Of The East African Court Of Justice, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

From Rights To Dignity: Drawing Lessons From Aid In Dying And Reproductive Rights, Yvonne Lindgren

Utah Law Review

The transformation of AID from a constitutional rights frame to a healthcare frame highlights the importance of developing a healthcare model related to dignity that isundergirded by social support, legal rights and healthcare access. However, the history of the abortion right cautions against narrowly identifying healthcare within the confines of the individual doctor-patient relationship because it risks subordinating the decisional autonomy of patients to the decision-making of their doctors. Taken together, these movements gesture toward situating rights within a healthcare framing that considers how social, political and economic systems and relationships come to bear upon decision-making. I conclude that while …

Foreign Assistance Complicity, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

When does a government’s provision of assistance to foreign armed groups cross the line from legitimate foreign policy to criminal aiding and abetting of those who use the aid to commit atrocities? The question presents one of the most difficult dilemmas in criminal justice, one that has deep normative implications and has provoked sharp splits among the U.S. federal courts and international tribunals that have faced it.

In 2013, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) sent shockwaves through international legal circles when it acquitted former Yugoslav Army chief Momčilo Perišić of aiding and …

Reconsidering Federal And State Obstacles To Human Trafficking And Entitlements Victim Status, Amanda Peters

Utah Law Review

The crime of human trafficking has received much political and mediaattention in recent years. Lawmakers and actors within the criminal justice system have yet to fully grasp the challenges human trafficking victims face in securing the rights, benefits, services, and protections reserved for this group. One of the qualities of the American criminal justice system is its ability to adapt to new challenges. Law and policy makers must understand whether and why human trafficking victims differ from victims of traditional crime and how entitlements for both groups overlap, yet differ. Without pondering the distinctions, trafficking victims will continue to find …

Obama’S National Security Exceptionalism, Sudha Setty

Faculty Scholarship

This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the …

Canadian-Nigerian Human Rights Engagements (1999-2011): An Introduction, Obiora C. Okafor

Articles & Book Chapters

More contemporary Canadian-Nigerian human rights engagements have occurred against the backdrop of a relatively long history of engagement in this area between the two countries, and alongside an even longer history of Canadian-Nigerian relations more generally. These are histories within which one must situate the human rights engagements between these countries during the specific period under study here. As is well known, Canada established diplomatic relations with Nigeria shortly after Nigeria’s independence from British colonial rule in 1960. Nigeria reciprocated in 1973. It is noteworthy that Canada has for several decades now funded or otherwise supported many human rights efforts …

"During War, The Law Is Silent," Or Is It?: Examining The Legal Status Of Guantanamo Bay, Kate Frisch

Law Student Publications

The use of Guantanamo Bay as an extraterritorial detention center intended to house what the United States deems as "unlawful enemy combatants" has been problematic for several reasons. First, the United States government has argued that Guantanamo exists outside of its immediate territorial sovereignty, and therefore the detainees do not have to be afforded any significant procedural and substantive legal protections under the Constitution. Second, it is unclear how and to what extent United States activities in Guantanamo Bay conform to international human rights standards. Significantly, it has been questioned whether or to what extent public international and human rights …