Human Rights Law Commons^™

Banning Metal Mining In Guatemala, Randall S. Abate, Raquel Aldana

Journal Publications

Metal mining is unsustainable for Guatemala and its harms insurmountable for its people. Guatemalans who oppose metal mining have been fighting for decades domestically and internationally against the environmental degradation and other human rights abuses from metal mining activities in the country with little to show for their efforts. The State is too weak and corrupt to offer much hope for reform. Guatemala requires extensive governance reforms to become the type of strong democracy capable of reaping the potential benefits of metal mining in its territory. This is a long-term project. Most Guatemalans opposed to metal mining already know this, …

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate …

Rationed Justice, Jennifer M. Smith

Journal Publications

In the United States, "equal justice under law" is at the very forefront of our American justice system. "Equal justice" is meant to guarantee equal access to the justice system. "Equal access to the judicial process is the sin qua non of a just society." Many Americans, however, do not have any access to the justice system, never mind that of equal access. "Equal justice" has not reached the nation's indigent, or even many of our moderate-income citizens.

The Color Of Pain: Blacks And The U.S. Health Care System--Can The Affordable Care Act Help To Heal A History Of Injustice?, Part Ii, Jennifer M. Smith

Journal Publications

The state of Americans' health care has been troubling, especially before health care reform.The Affordable Care Act (ACA) is often touted as universal health care, and the initial intention was for the U.S. to have universal health care. However, with all of the compromises involved in its passage, the ACA resulted in comprehensive health insurance reform, significantly increasing the accessibility, affordability, and quality of health care for most, but not all, Americans. The ACA is a substantial step toward universal health care-a near-universal mandate-that may soon provide coverage to all Americans, and even include undocumented immigrants. Americans can find excellent …

Ocean Iron Fertilization And Indigenous Peoples' Right To Food: Leveraging International And Domestic Law Protections To Enhance Access To Salmon In The Pacific Northwest, Randall S. Abate

Journal Publications

Ocean iron fertilization (OIF) is a new and controversial climate change mitigation strategy that seeks to increase the carbon-absorbing capacity of ocean waters by depositing significant quantities of iron dust into the marine environment to stimulate the growth of phytoplankton blooms. The photosynthetic processes of these blooms absorb carbon from the atmosphere and sequester it to the ocean floor. OIF has been criticized on several grounds. including the foreseeable and unforeseeable adverse consequences it may cause to the marine environment, as well as the daunting challenge of reconciling several potentially overlapping sources of international and domestic environmental law, which may …

Myths Meet Reality: How We Are Not Fighting Trafficking Or Supporting Trafficking Survivors, Denise Brennan

NYLS Law Review

No abstract provided.

Innovations In The Fight Against Human Trafficking: Advocates’ Perspectives And Proposals, Florrie Burke

NYLS Law Review

No abstract provided.

Innovation At The Front Lines, Pamela K. Chen

NYLS Law Review

No abstract provided.

An Organizing Approach To Human Trafficking In Domestic Work, Tiffany Williams, Leah Obias

NYLS Law Review

No abstract provided.

The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds

All Faculty Publications

In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

Children, Diane Marie Amann

Scholarly Works

This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

The Problematic Applicability Of Subsidiarity To International Law, Paolo G. Carozza

Journal Articles

This article seeks to explore some of the reasons why the principle of subsidiarity, although applicable in some sectors of international law and particularly in the field of international human rights law, has difficulty in serving as a general principle of public international law more broadly. The obstacles to advancing a more robust understanding of subsidiarity's place in the current structure of global norms and institutions include: the normative and institutional fragmentation of international law; the continuing centrality of state sovereignty in the international legal system; and the endemic weaknesses and incapacity of states and sub-state communities with respect to …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

Book Review, Douglass Cassel

Journal Articles

Reviewing Federico Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (2014)

Fabbrini’s study sheds valuable light on the dynamics that shape the interactions among multiple levels of human rights protection in Europe, and on the consequences for rights protection that tend to ensue. Less successful is his outsized confidence in a comparative approach, especially as applied to political and juridical communities as distinct as the USA and Europe. While the imperfect comparisons yield useful insights, Fabbrini at times overstates their import.

The Transformative Influence Of International Law And Practice On The Death Penalty In The United States, Richard Wilson

Contributions to Books

No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of …

The Human Right To Water: A False Promise?, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

No abstract provided.

Still Not Equal: A Report From The Red States, Clifford Rosky

Utah Law Faculty Scholarship

This chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely …

Same-Sex Marriage Litigation And Children's Right To Be Queer, Clifford Rosky

Utah Law Faculty Scholarship

This essay examines how lawyers and judges have framed the question of children’s queerness in litigation over samesex marriage. First, it argues that in United States v. Windsor and Obergefell v. Hodges, the US Supreme Court invoked the tropes of dignity, injury, and immutability to set the outer limits of sexual liberty for both children and adults. Next, the essay looks back to the early work of queer theorists, legal scholars, and lawyers to unearth a more promising vision of law’s relationship to children’s queerness. By juxtaposing how two judges approached the possibility of the gay child in Utah and …

The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann

Articles & Chapters

No abstract provided.

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter K. Yu

Faculty Scholarship

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to …

State Responsibility To Respect, Protect And Fulfill Human Rights Obligations In Cyberspace, Gabor Rona, Lauren Aarons

Articles

The article argues that international human rights law applies to cyberspace, obligating States to protect individuals' rights online, including privacy, freedom of expression, and assembly. While the legal framework exists, its application remains unsettled, requiring further development to address challenges like balancing security with liberty and regulating non-State actors. The article emphasizes the need for States to adopt a "Golden Rule" approach, prioritizing human rights and security over short-term competitive advantages.

Of Human Dignities, Mark L. Movsesian

Faculty Publications

(Excerpt)

Dignitatis Humanae: “Of Human Dignity.” The Second Vatican Council’s 1965 declaration on religious liberty must have seemed a triumph—an exclamation mark signaling the success of a decades-long project, begun during the Second World War, to restore human rights to the center of Catholic social teaching. In wartime addresses, Pope Pius XII had called for recognition of human rights, based in human dignity, as the foundation for a stable peace. In 1963, Pope John XXIII had made universal human rights, including religious liberty, part of the Magisterium. The project had had effects outside the Church as well. In 1948, …

Social Anxiety Disorder And The Americans With Disabilities Act's Impact On A Professional Athlete's Media Obligations, Matthew Gollub

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Dignity Rights: A Response To Peggy Cooper Davis's Little Citizens And Their Families, Jane M. Spinak

Faculty Scholarship

Professor Spinak responds to Professor Davis’ comment by considering how the concept of human dignity can be used to reassert human rights – of individual members of the family and the family as an entity – that have been diminished, if not destroyed, by poverty and inequality.

The Art Of Nailing Jell-O To The Wall: Reassessing The Political Power Of The Internet, Bryan Druzin, Jessica Li

Journal of Law and Policy

Political observers commonly argue that, given the unique characteristics of the Internet, democratization is an inevitability of its widespread use. The critical role that social media played in the wave of demonstrations, protests, and revolutions that swept across the Arab world in 2011 cemented this perception in the minds of many. Yet China defies this simplistic paradigm—China has been stunningly successful at constraining the political power of its Internet. We argue that the political importance of Internet technology has been overstated, particularly with respect to China. As support for this thesis, we cite recent political events in Hong Kong known …

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 …

Panel I: Fleeing Violence From Latin America, Olga Byrne, Elizabeth Carlson, Walter Ewing, Alice Farmer, Tiffany Nelms, Teresa Woods

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.