Human Rights Law Commons^™

Access To Knowledge And The Global Abortion Policies Database, Joanna Erdman, Brooke Johnson

Articles, Book Chapters, & Popular Press

Research shows that women, healthcare providers, and even policy makers worldwide have limited or inaccurate knowledge of the abortion law and policies in their country. These knowledge gaps sometimes stem from the vague and broad terms of the law, which breed uncertainty and even conflict when unaccompanied by accessible regulation or guidelines. Inconsistency across national law and policy further impedes safe and evidence‐based practice. This lack of transparency creates a crisis of accountability. Those seeking care cannot know their legal entitlements, service providers cannot practice with legal protection, and governments can escape legal responsibility for the adverse effects of their …

An Alternative To Medical Assistance In Dying? The Legal Status Of Voluntary Stopping Eating And Drinking (Vsed), Jocelyn Downie

Articles, Book Chapters, & Popular Press

Medical assistance in dying (MAiD) has received considerable attention from many in the field of bioethics. Philosophers, theologians, lawyers, and clinicians of all sorts have engaged with many challenging aspects of this issue. Public debate, public policy, and the law have been enhanced by the varied disciplinary analyses. With the legalization of MAiD in Canada, some attention is now being turned to issues that have historically been overshadowed by the debate about whether to permit MAiD. One such issue is voluntary stopping eating and drinking (VSED) as an alternative to MAiD. In this paper, I will apply a legal lens …

Submission To The Open Call For Input Regarding The Working Group’S Report On The Gender Lens To The Un Guiding Principles On Business And Human Rights, Sara Seck, Penelope Simons

Articles, Book Chapters, & Popular Press

In October 2017, we co-hosted a conference and policy meeting on the subject of extractive industries and the human rights of women and girls, at the Human Rights Resource Education Centre in Ottawa. This submission will reflect on some of the insights that emerged from the conference and policy meeting, as well as our own subsequent research. A selection of conference papers are forthcoming in a special issue of the Canadian Journal of Women and the Law. We have inserted our submissions in response to some of the specific questions raised by the Working Group.

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

English Abstract

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, headed by 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 …

Understandings Of Self-Managed Abortion As Health Inequity, Harm Reduction And Social Change, Joanna Erdman, Kinga Jelinska, Susan Yanow

Articles, Book Chapters, & Popular Press

This commentary explores how self-managed abortion (SMA) has transformed understandings of and discourses on safe abortion and associated health inequities through an intersection of harm reduction, human rights and collective activism. The article examines three primary understandings of the relationship between SMA and safe abortion: first SMA as health inequity, second SMA as harm reduction, and third SMA as social change, including health system innovation and reform. A more dynamic understanding of the relationship between SMA, safe abortion and health inequities can both improve the design of interventions in the field, and more radically reset reform goals for health systems …

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

Articles, Book Chapters, & Popular Press

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

More Than 'Revenge Porn' Civil Remedies For The Nonconsensual Distribution Of Intimate Images, Suzie Dunn, Alessia Petricone-Westwood

Articles, Book Chapters, & Popular Press

The non-consensual distribution of intimate images, or “revenge porn” as it is colloquially known, is a growing phenomenon in the digital era that has devastated the lives of countless individuals. Targets of this conduct have suffered both short and long-lasting harms that have had serious repercussions on their mental health, physical well-being, and safety. Once their intimate images have been shared without their consent, they can face damage to their personal and professional reputations. There are reported cases where individuals have lost their jobs, have had to relocate, were stalked and harassed, experienced some form of emotional trauma, and had …

Access To Justice Through Limited Legal Assistance, Deborah L. Rhode, Kevin Eaton, Anna Porto

Northwestern Journal of Human Rights

This article describes an empirical survey of a limited legal assistance program designed to assist low-income individuals with family law matters. It begins by exploring the need for such research, given the nation’s shameful level of unmet legal needs, and the lack of rigorous evaluation of strategies designed to address those needs. The article discussion then describes the methodology of a survey of Alaska Legal Services’ limited legal assistance program, and the survey’s major findings. Among the most critical conclusions are that limited assistance is a cost-effective use of resources, but that more effort should center on provision of hands-on …

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

All Faculty Publications

Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable …

R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore

All Faculty Publications

The judgment of the Supreme Court in R. v. K.R.J. reflects an important potential change in the way proportionality analysis is conducted in the review of constitutional rights limitations under Canada’s Oakes test. Previously, most cases came down to the “Minimal Impairment” stage of Oakes. Its dominant role is challenged by KRJ, which places new weight on the subsequent and final “Proportionality of Effects” step. A permanent shift in the focus of the test to the Proportionality of Effects inquiry would be a landmark change in the thirty-year history of proportionality in Canada. The shift does not appear crafted to …

Finding The Forum That Fits: Child Immigrants And Fair Process, Lenni Benson

Roger Williams University Law Review

No abstract provided.

Talking Foreign Policy: Jesner V. Arab Bank, Milena Sterio, Thomas Buergenthal, Carsten Stahn, Avidan Cover, Timothy Webster, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Judge Thomas Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then …

The Military Transgender Policy: The Realization Of Madison’S Incompatible Powers Narrative, Ken Hyle

Cardozo Law Review de•novo

Last summer, President Trump purported to ban all transgender individuals from serving in the military via Twitter: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. military.” In August 2017, the President followed his series of tweets with a Presidential Memorandum that formally dismantled President Obama’s framework to permit transgender individuals to serve openly. These restrictions led to a flurry of lawsuits in federal court. In March 2018, President Trump issued a revised policy that …

The Future Of Freedom Of Expression Online, Evelyn Aswad

Faculty Articles

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their …

Local Human Rights Lawyering, Lauren Bartlett

All Faculty Scholarship

International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.

Victims And Press After War: Tensions Between Privacy, Historical Truth And Freedom Of Expression, Vivian Newman-Pont, Maria P. Angel, Maria Ximena Davila

Scholarly Works

The drive to conduct this research was born out of the tension that developed on May of 2017 in the context of the journalistic coverage of the exhumations of those who died in the Bojayá massacre.   Thus, this document has the purpose of asking and answering, from a socio-legal perspective, the following question: How can the events related to the armed conflict and to the transition to peace be narrated without violating the right to privacy of the victims? Or, how can a journalist record a dramatic event or recount an injuste that moves readers while respecting the limits of …

Book Review: Surrogacy: A Human Rights Violation By Renate Klein, Kate Rose

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Occupational Licensing: How States And Professionals Work To Keep The Poor From Working, Seth Johnson

Public Interest Law Reporter

No abstract provided.

2018 Iaohra Gender Equity Toolkit, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

Human rights provide a valuable tool for assessing and advancing women’s human rights; proactively identifying and changing the laws, policies, and practices that perpetuate inequality; addressing the stereotypes and beliefs that underlie gender discrimination; and shaping initiatives that improve gender equity.

The Corruption And Human Rights Connection: Government Acquiescence In Torture, Edward Popovici

Center for the Advancement of Public Integrity (Inactive)

Corruption has human rights consequences. That was the conclusion of a 2009 study by the International Council on Human Rights Policy and Transparency International and it is a conclusion that the 9th Circuit implicitly reached in Parada v. Sessions, a review of a dismissal of asylum case decided on August 29th, 2018. Despite the fact that such a conclusion enjoys widespread support, courts have been slow to recognize the relationship between corruption and human rights abuses. Parada v. Sessions represents an effort by the 9th Circuit to give legal cognizance to the corruption-human rights link. The holding of the …

Implementation Of The Global Magnitsky Act, Center For The Advancement Of Public Integrity

Center for the Advancement of Public Integrity (Inactive)

The Global Magnitsky Act is an expansion of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (the “Magnitsky Act”). The original statute enabled the U.S. government to sanction individuals from the Russian Federation for torture, extrajudicial killings, and other human rights violations. The bill was named after Sergei Magnitsky, a Russian lawyer who died in prison from police abuse and neglect after exposing fraud by members of the Russian government. The Global Magnitsky Act expands the scope of potential sanctions from covering just Russian nationals to covering persons worldwide who engage in …

Implementing Shared-Use Of Mining Infrastructure To Achieve The Sustainable Development Goals, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Many of the Sustainable Development Goals will only be achieved if the population has access to basic services, such as access to water, power, transport, and telecommunications. However, in many developing countries there is a lack of infrastructure to guarantee these services and there are insufficient public funds to finance growing needs. In resource-rich countries, the mining sector can play a key role in increasing access to infrastructure. Mining-related infrastructure is often developed to serve the exclusive need of the investors, but if it is shared and developed to serve the broader needs and uses of the host economy it …

Business & Human Rights: Optimism And Concern From The U.S. Perspective, Christiana Ochoa

Articles by Maurer Faculty

Forty-five years passed between the release of the first major United Nations report referencing the need to regulate transnational corporations and the release of the Zero Draft. Those years were accompanied by vibrant scholarly work and debate, as well as a significant jurisprudence, corporate engagement, and civil society discourse and activism that, cumulatively, has resulted in a much better understanding of how the once very distinct ideas of “business” and “human rights” are now merged by an ampersand. The field of business & human rights signifies the introduction of polycentric governance and law that binds businesses, sometimes softly and sometimes …

Valuing Life: A Human Rights Perspective On The Calculus Of Regulation, William J. Aceves

Faculty Scholarship

How much is a human life worth? This is both a puzzling and subversive question for human rights advocates to consider. The concept of human rights is premised on the sanctity and inviolability of human life as well as the equality of all human beings. Indeed, the right to life and the corollary right to be free from the arbitrary deprivation of life constitute the defining human right. To place a price on the value of human life is, thus, unsettling. And yet, monetary valuation of human life occurs frequently. Governments use cost-benefit analysis and calculations regarding the value of …

Book Review: The Pimping Of Prostitution: Abolishing The Sex Work Myth By Julie Bindel, Roger Matthews

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

R2h And The Prospects For Peace: An Essay On Sovereign Responsibilities, David Luban

Georgetown Law Faculty Publications and Other Works

This essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the interests of those outside their sovereign territory as well as those of the of their own people – in …

The End Of Special Treatment For Cubans In The U.S. Immigration System: Consequences And Solutions For Cubans With Final Orders Of Removal, Lindsay Daniels

Dickinson Law Review (2017-Present)

In January 2016, former President Obama announced the end of the “Wet-Foot, Dry-Foot” Policy, which granted special immigration benefits to Cuban migrants. As part of the agreement to end this policy, the Cuban government agreed to take back its citizens with final orders of removal for criminal convictions, an action that it had refused to take for decades. This Comment will begin by exploring past and present immigration policies between the United States and Cuba, including recent developments like the normalization of relations and the impact of President Trump’s immigration policies.

This Comment will then explore possible avenues of relief …

Universities As “Sanctuaries”, Maryam Ahranjani

Scholarly Works

When Donald Trump, a businessman and reality television personality with antiimmigrant views, was elected President of the United States in November 2016, thousands of students, faculty and staff at many colleges and universities around the country implored their institutions to affirmatively declare themselves sanctuaries for undocumented students. Enjoying support both from the estimated 200,000 undocumented university students and other stakeholders, the movement gained quite a bit of momentum, but many contentious battles also have occurred. According to the author's empirical analysis, only twenty of the more than 5,000 institutions of higher education in the United States have adopted the sanctuary …

A Right To Care, Stacey A. Tovino

Scholarly Works

In this Article, Professor Stacey Tovino examines the right to care through a personal and historical lens, then attempts to fill a scholarly gap in legal literature surrounding the right to skilled care and rehabilitation for patients with group or commercial insurance. Professor Tovino first recounts the history of Medicare coverage for skilled care and rehabilitation, then she examines the limitations of group and commercial insurance, finally concluding by asserting a right to care.

What We Talk About When We Talk About Sanctuary Cities, Michael Kagan

Scholarly Works

In this Essay, Professor Michael Kagan asserts when immigrant rights advocates ask their local, state and university leaders to become "sanctuary cities," "sanctuary states," "sanctuary campuses," and so on, they carelessly hurt immigrants in places like Nevada, Texas, and Arizona. And there are a lot of immigrants in those states. People who mean to help immigrants are hurting them. He first sets out assumptions he makes about the semantics and politics of "sanctuary" debates. These assumptions include setting out the kind of actual policies that are usually under consideration when people invoke the sanctuary label, and a way of understanding …