Human Rights Law Commons^™

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

Armed Drones: An Age Old Problem Exacerbated By New Technology, Grant H. Frazier

Pomona Senior Theses

The purpose of this thesis is to examine the history behind and the use of militarized drones in modern day conflicts, and to conclude whether the use of these machines, with special attention to the United States, is legal, ethical, and morally defensible. In achieving the aforementioned goals, shortcomings of current policy surrounding drone warfare will be highlighted, acting as the catalyst for a proposal for changes to be made to better suit legal, ethical, and moral considerations. The proposal of a policy to help us work with armed drones is due to the fact that this thesis acknowledges that …

The Quest For Constitutionalism: South Africa Since 1994, Penelope Andrews

Other Publications

No abstract provided.

Securing Child Rights In Time Of Conflict, Diane Marie Amann

Scholarly Works

Each term in the title of this essay seems simple, yet provides much food for analytical thought. The essay thus explores: what is “conflict,” and whether there is a “time” when it is not present; who is a “child”; whether and to what extent children enjoy “rights”; and, finally, how local, national, and international regimes go about “securing” those rights. The essay – based on a talk given at the 2015 International Law Weekend in New York – concludes with a glance at a new potential avenue for child security: the Sustainable Development Goals which the U.N. General Assembly adopted …

Justice Brennan And The Foundations Of Human Rights Federalism, James A. Gardner

Journal Articles

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights …

The Myth Of Gender Equality In Turkey: Her Name Or Sir-Name?, Joseph Zand, Bahar Öcal Apaydın

Cardozo Journal of Equal Rights & Social Justice

Gender equality is one of the most contentious matters in the contemporary Turkish society. Unlike in many other parts of the developed world, Turkish women still struggle to use their maiden name, as well as to pass it on to their children upon marriage. A woman's surname is of crucial importance to her identity. Despite the fact that Turkey is a part of the European Civil Law tradition and the Turkish Civil Code has a specific provision regarding women's surnames, Turkey has failed to grant its female population a choice in relation to their surname after marriage. The European Court …

The Michigan Guidelines On Risk For Reasons Of Political Opinion

Michigan Journal of International Law

The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country

Decentering Human Rights From The International Order Of States: The Alignment And Interaction Of Transnational Policy Channels, Radu G. Mares

Indiana Journal of Global Legal Studies

This article accounts for recent developments in corporate social responsibility, international trade and investment law, international human rights law, development aid, and the laws of home states reaching extraterritorially in order to advance a regulatory perspective on commerce and human rights. While these developments are remarkable, the analysis documents the prevalence of softer strategies and a corresponding scarcity of coercive legalization strategies. The question, then, is how to reason about these recent developments and their genuine potential for human rights protection. The article proposes two elements-a root-cause orientation and the interaction of policy channels-as indispensable for a regulatory and systemic …

Transformations In Statehood, The Investor- State Regime, And The New Constitutionalism, A. Claire Cutler

Indiana Journal of Global Legal Studies

This paper examines the changing boundaries of statehood resulting from transformations in the nature and operation of public and private authority over local and global politico-legal orders. Transformations in the political purposes of states are being driven by powerful elites who advance a new form of constitutional governance. New constitutionalism, as evidenced by the investor-state regime, subordinates the interests, purposes, and rights of national citizens to those of foreign, transnational politico-legal, and economic elites. This regime is a highly privatized order that is expanding in influence, both in terms of the commercial activities under its remit, and in terms of …

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

Michigan Journal of International Law

Refugee status at international law requires more than demonstration of a risk of being persecuted. Unless the risk faced by an applicant is causally connected to one of five specified attributes – his or her race, religion, nationality, membership of a particular social group, or political opinion – the claim to be a refugee must fail. Because the drafters of the Refugee Convention believed that the world’s asylum capacity was insufficient to accommodate all those at risk of being persecuted, they opted to confine the class of refugees to persons whose predicament stems from who they are, or what they …

The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb

Brooklyn Journal of International Law

Whether and to what extent travel restriction should be implemented during international infectious disease epidemics became a controversial issue, most recently, during the 2014 Ebola outbreak. The primary authority on the manner in which to respond to such epidemics is the International Health Regulations (IHR). The IHR is a treaty, established by the World Health Organization (WHO), which governs and coordinates international responses to international infectious disease epidemics. Despite the WHO's strong advisement to the contrary, many countries who were signatories to the IHR implemented travel bans and other types of travel restrictions to prevent the transmission of the disease …

Australians' "Right" To Be Bigoted: Protecting Minorities' Rights From The Tyranny Of The Majority, Jillian Rudge

Brooklyn Journal of International Law

Australia’s Racial Discrimination Act (RDA) is a federal statute prohibiting behavior that offends, insults, humiliates, or intimidates people based on their race, nationality, ethnicity, or immigration status. It appropriately limits the right to freedom of expression where the exercise of that right encroaches on other, equally fundamental rights to equality and freedom from discrimination. The RDA is one of Australia’s few human rights laws focused on fighting racism. It is especially important for protecting the rights of minorities since Australia lacks a constitutional or federal bill of rights. Unfortunately, in 2014 and 2015, conservative politicians called for a repulsion of …

The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin

Brooklyn Journal of International Law

Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights’ case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges’ reasoning: laws targeting homosexual conduct; …

“Chi S’Aiuta, Dio L’Aiuta”: Balancing Italy’S Right To Utilize Assisted Reproductive Technologies With The Teachings Of The Catholic Church, Erin A. Mcmullan

Brooklyn Journal of International Law

Adelina Parrillo never anticipated starting a prolonged legal battle when she requested her embryos be donated for scientific research. The restrictive legislation in place in Italy, inevitably influenced by the Catholic Church, mandated that she either implant the embryos or store them indefinitely. After a long drawn out battle with the Italian courts, she desperately sought assistance from the European Court of Human Rights (ECtHR), a court tasked with protecting the rights of individuals such as Parrillo from the overreaching of Member States. The ECtHR) acknowledged that this decision, to donate her unused embryos to medical research, was within the …

The Principle Of Legality And A Common Law Bill Of Rights—Clear Statement Rules Head Down Under, Dan Meagher

Brooklyn Journal of International Law

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that, at its most critical moments, was (and continues to be) informed by U.S. constitutional law design and statutory interpretation principles. On one level, that is no surprise when “it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” But, what is extraordinary is that the decision of the framers of the Australian Constitution to …

Emerging Issues: Fifa World Cup 2022: Enjoying The Game At The Suffering Of Migrant Workers, Iram Ashraf

University of Baltimore Journal of International Law

On December 2, 2010, the Federation Internationale de Football Association (“FIFA”), granted Qatar the honor of hosting the 2022 World Cup. FIFA’s president, Sepp Blatter, stated that hosting the World Cup in Qatar, an “unstable region of the world,” is intended to unify millions of people that may not otherwise come together, such as Israelis and Palestinians. FIFA has put great efforts towards hosting this event in Qatar, so much so that it changed the tournament to be held in the winter rather than the summer for the first time in history. The logic behind this timing change was to …

Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris

All Faculty Publications

Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (2008-2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be evicted from and forced to sell their …

Bordering The Constitution, Constituting The Border, Efrat Arbel

All Faculty Publications

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border …

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 …

Legacies Of Exceptionalism And The Future Of Gay Rights In Singapore, Stewart Chang

Scholarly Works

This article analyses how the ties between Singaporean exceptionalism and its Western colonial and neocolonial roots explain why the Singapore's legislature and judiciary have retained its anti-sodomy statute under s 377A of the Penal Code. After decolonisation, restrictive laws pertaining to sexual conduct, originally justified by colonial lawmakers as bringing superior Western moral order to the uncivilised Asian territories, evolved into an "Asian values" moral exceptionalism that distinguished Singapore from the overly liberal West. This exceptionalism, however, also illustrates an Oedipal angst of the Singaporean Government to overcome and overtake the old colonial father in its attempt to redefine itself …

Talking Foreign Policy: The Iran Nuclear Accord, Paul Williams, Milena Sterio, Avidan Cover, Mike Newton

Scholarly Articles in Law Reviews & Journals

No abstract provided.

State-Enabled Crimes, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

International crimes are committed by individuals, but many – from genocide in Rwanda to torture at Abu Ghraib – would not have occurred without the integral role played by the State. This dual contribution, of individual and State, is intrinsic to the commission of what I term “State-Enabled Crimes.” Viewing international adjudication through the rubric of State-Enabled Crimes highlights a feature of the international judicial architecture that is typically taken for granted: its bifurcated structure. Notwithstanding the deep interrelationship between individual and State in the commission of State-Enabled Crimes, the international legal system adjudicates the responsibility of each under two …

Independence And Immigration, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Arbitrary Detention? The Immigration Detention Bed Quota, Anita Sinha

Scholarly Articles in Law Reviews & Journals

When President Obama took office in 2009, Congress through appropriations linked the U.S. Department of Homeland Security’s (DHS) funding to “maintaining” 33,400 immigration detention beds a day. This provision, what this Article refers to as the bed quota, remains in effect, except now the mandate is 34,000 beds a day. Since 2009, DHS detentions of non-citizens have gone up by nearly 25 percent. To accommodate for this significant spike over a relatively short period of time, the federal government has relied considerably on private prison corporations to build and operate immigration detention facilities.

This Article takes a comprehensive look at …

Can Parallel Lines Ever Meet? The Strange Case Of The International Standards On Sovereign Debt And Business And Human Rights, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

This special issue is a cooperation of the Yale Journal of International Law and the United Nations Conference on Trade and Development (UNCTAD). It emerged from UNCTAD’s work on sovereign debt workouts, specifically from its Working Group on a Sovereign Debt Workout Mechanism (2013 to 2015). The working group developed a Roadmap and Guide for Sovereign Debt Workouts, published in 2015. It proposes an incremental approach to sovereign debt workouts that relies on the continuous, progressive development of sovereign debt restructuring practice. This work has inspired the adoption of Basic Principles for Sovereign Debt Restructuring by the United Nations General …

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

Advocacy At The Leading Edge Of Social Change: The Importance Of Front Line Innovators, Frank W. Munger

Articles & Chapters

No abstract provided.