Human Rights Law Commons^™

Restoring The Rights Multiplier: The Right To An Education In The United States, Katherine Smith Davis, Jeffrey Davis

Journal of Law and Policy

In 1973 the U.S. Supreme Court ruled that education was not a fundamental right, leaving in place systems that continue today to perpetrate vast inequities among school districts. Through a comparative analysis of treaties, constitutions, legislation, and international and state judicial decisions, we demonstrate that education is indeed a fundamental human right, though our constitutional jurisprudence has denied its fundamental right status. We use case studies from Baltimore, a typical city whose residents face economic hardships, to reveal the dire consequences of this ruling. Without the right to an education, schoolchildren in poor systems continue to be deprived of the …

Amicus Memoriais, Jocelyn Getgen Kestenbaum, Cardozo Human Rights & Atrocity Prevention Clinic

Amicus Briefs

Professor Jocelyn Getgen Kestenbaum and the Human Rights and Atrocity Prevention Clinic submitted an amicus brief in the Brazilian Supreme Court for a landmark ruling for the Xokleng people.

“[Don’T] Give Me Your Tired, Your Poor...” A Study On The Trump Administration’S Unprecedented Reforms To The U.S. Refugee Admissions Program And Their Implications, Savannah Day

Honors Theses

From 2017 to 2020, the Trump administration cut United States refugee admissions tenfold. These reforms come unprecedented to the 40-year-old resettlement program (USRAP). By critically reviewing literature on this topic as well as conducting eight original interviews with five national nonprofits contracted by the Department of State to do refugee resettlement casework, this study sought to identify the implications of the Trump administration’s reforms to the program. Once implications were identified, I used the applied frameworks of program model as well as Michael Worth’s sociological and political science theories of American nonprofit-government relations to better inform and guide the study. …

The Honduran Exodus: Understanding The Migrant Crisis At The Southwest Border, Ashley Saul

University of Miami Inter-American Law Review

No abstract provided.

Child Marriage In The U.S.: Loopholes In State Marriage Laws Perpetuate Child Marriage, Sarah Ochieng

Immigration and Human Rights Law Review

The practice of child marriage is often discussed in the context of developing countries and many people find it unthinkable that child marriage also occurs in developed countries such as the United States of America. However, child marriage is a serious problem in the United States that affects thousands of children each year. This comment reviews the loopholes in state marriage laws. Part II considers the scope of child marriage as a human rights violation and the effects of child marriage. It also provides a background of the loopholes in state marriage laws, and a focus on the marriage laws …

Rodriguez V. Swartz: Civil Lawsuit Immunity In Border Shootings, Alexis Woolison

Immigration and Human Rights Law Review

When federal agents exhibit conduct that violates the United States Constitution, the Supreme Court has held that those agents should be held civilly liable for their actions, as shown by its decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Applicable constitutional violations include those which infringe on any individuals’ constitutional rights. This includes violations of the constitutional rights of noncitizens. Although the Supreme Court disfavors expansion of Bivens claims and has only extended this remedy twice, in Davis v. Passman and Carlson v. Green, the Ninth Circuit Court recently approved such expansion in a …

Grounds For Asylum: How Victims' Rights Laws Confer Particular Social Group Status To Domestic Violence Victims, Jordan Cotleur

Immigration and Human Rights Law Review

Despite an uptake in legislation criminalizing domestic violence since the 1990’s, women in Latin America still face the highest rates of gender-based and domestic violence of any region in the world. In Central America, two-thirds of female homicide victims are killed because of their status as a woman (also known as “femicide”) and half of women face this fate at the hands of a current or former partner. The violence perpetuates at such an alarming rate because investigations into gender-based violence are nearly non-existent in the region. In 2016, it was reported that up to ninety-eight percent of cases involving …

Cases Studied In Genocide Studies And Prevention And Journal Of Genocide Research And Implications For The Field Of Genocide Studies, Jeffrey Bachman

Genocide Studies and Prevention: An International Journal

The adoption of the Genocide Convention in 1948 was accompanied by the emergence of genocide as a field of study, first in the form of Holocaust Studies, followed by Genocide Studies, then Comparative Genocide Studies and, most recently, Critical Genocide Studies. Over the last 20-30 years, the field of genocide studies has greatly expanded. According to Alexander Hinton, “As the outlines of the field emerge more clearly, the time is right to engage in critical reflections about the state of the field.” This article seeks to enhance the field of genocide studies by answering Hinton’s call for reflective analysis. It …

Conceptualizing Global Indigenous Rights, Kerri J. Malloy

Faculty Research, Scholarly, and Creative Activity

No abstract provided.

Ethel Dlamini (Born Gule) V Prince Chief Gasawangwane (93/2018b) [2019] Szsc 40 (Judgment 8 October 2019), Simangele D. Mavundla

SAIPAR Case Review

The significance of the case of Ethel Dlamini is found in the Supreme Court’s progressive interpretation of the chain of events that were being inflicted to Mrs Dlamini as a violation of her dignity. The court could have looked into the requirements of an interdict to see if Mrs Dlamini’s case was in line with them or not. These are whether the applicant has a prima facie right; apprehension of irreparable injury, and that there is no other satisfactory remedy. Instead, the Court observed that Mrs Dlamini was deprived arbitrarily of the field given to her by her father-in-law and …

The Problematic Nature Of Execution By Lethal Injection In The United States And People’S Republic Of China, Franchesca Fanucchi

Themis: Research Journal of Justice Studies and Forensic Science

The United States and the People’s Republic of China perceive the death penalty as a fundamental feature of the criminal justice system. Lethal injection procedures provide these countries with the humane disguise necessary to preserve capital punishment in an environment of evolving societal standards. However, this essay examines the highly problematic nature of execution by lethal injection due to numerous medical, procedural, and bureaucratic concerns often concealed from the public and press. The low-visibility nature of lethal injection in the United States and China has become troublesome, especially since it prevents public, academic, and medical evaluation on the procedure's humaneness …

Divided States Of America: Why The Right To Counsel Is Imperative For Migrant Children In Removal Proceedings, Catrina L. Guerrero

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Not Your Average Summer Camp: Children In Immigration Detention, Cindy Izquierdo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

The Limits And Possibilities Of Data-Driven Antitrafficking Efforts, Jennifer Musto Ph.D.

Georgia State University Law Review

An examination of technology in the countertrafficking space reveals recurring tensions between law enforcement and rights-based approaches. It also illuminates assumptions, such as the one that posits more law enforcement-focused, nonstate-actor-supported data-driven efforts are necessary to securing justice for people in trafficking situations. However, a closer look at how technology is used and by whom also invites us to ask different questions and to leverage the power of our all-too-human creative potential in thinking about how to value and prioritize data ethics, transparency, and accountability in future countertrafficking work.

From Valladolid To Venezuela : The Legacy Of Las Casas, Vitoria, And Sepúlveda In The Current Venezuelan Crisis., C. Evan Clark

College of Arts & Sciences Senior Theses

This thesis analyzes the current Venezuelan crisis and the international legal questions it has posed concerning sovereignty, the responsibility to protect, and international efforts to influence a state’s internal politics. In particular, the thesis expounds the historical and theoretical context behind international legal principles that governments, international organizations, and nongovernmental organizations (NGOs) have invoked in favor of Juan Guaidó or Nicolás Maduro. The thesis’s analysis centers around its examination of the parallels between the international legal principles that relate to the Venezuelan crisis and the political and ethical arguments of the sixteenth-century Spanish social reformer Bartolomé de las Casas and …

Responding To Victims Of Human Trafficking In The United States: A Review Of Treatment Providers, Morgan A. Mcbride

Theses/Capstones/Creative Projects

Scholars have made strides to illuminate the scope and nature of human trafficking, but there have been minimal efforts to inform responses to victims. Importantly, if we do not address the issues that made people vulnerable in the first place, then they could be susceptible to re-victimization in the future. It is vital then that treatment agencies are available and engaging in effective practices to maximize recovery efforts. Thus, the current study examined treatment providers in the United States in two stages to determine how they respond to victims of these crimes. In the first stage, a systematic literature review …

Business And Human Rights In The Context Of Sanctions: A Road To Filling The Governance Gap, Bahareh Jafarian

LLM Theses

As concerns about the negative impacts of sanctions on the human rights of civilians and the environment increases, it is necessary to reflect upon the lawfulness and legal status of such measures in international law, and their impact on business enterprises and the field of Business and Human Rights (BHR). While current academic literature tends to focus on implementation, enforcement and business compliance with unilateral and multilateral sanctions, the negative impacts of sanctions on non-state actors and resulting human rights violations are overlooked. Specifically, the relationship between sanctions law and the responsibility of businesses to respect human rights and the …

George Peter Mwanza And Melvin Beene V Attorney General Appeal No. 153/2016 Sc Selected Judgment No. 33 Of 2019, Ellah T.M. Siang’Andu

SAIPAR Case Review

On the 9th December 2019, the Supreme Court of Zambia delivered a landmark decision changing the human rights jurisprudence in the context of protecting and preserving the fundamental human rights of prisoners. The appellants were HIV positive and were both in custody at the Lusaka Central Prison. They petitioned the High Court contending breach of their rights to life and protection from inhuman treatment contrary to the Republican Constitution. The argument of the appellants was that the State’s failure to consider their dietary and health needs, due to the budgetary and logistical restraints, fell short of all prescribed standards for …

‘Sexualized Slavery’ And Customary International Law, Patricia Viseur Sellers, Jocelyn Getgen Kestenbaum

Book Chapters

This chapter examines the doctrinal avenues for the recognition and prosecution of ‘sexualized slavery’. The Hissène Habré trial and appellate judgments represent watershed legal decisions rendering long-denied justice to victims of the brutal Chadian regime. Delayed charges of credible sexual violence inflicted upon both males and females challenged the judges of the Extraordinary African Chambers (EAC) in Senegal. Legal characterizations of sexual assaults ultimately attributed to Habré represent significant jurisprudential advancements on rape, sexual slavery, and torture as international crimes. The EAC's observations acknowledge that sexual slavery constitutes part of the actus reus of enslavement as crime against humanity and …

Asymmetries In Immigration Protection, Sabrineh Ardalan

Brooklyn Law Review

As increasing numbers of immigrants face deportation, a major asymmetry in existing immigration procedures requires attention. Individuals who are deported from the United States and attempt to reenter are afforded an opportunity to prove their fears of return to their home countries, whereas those with prior deportation orders who have remained in the United States are not. This difference is based on the false premise that the latter have already had their day in court and do not need an additional layer of screening. This article fills a critical gap in the existing scholarship, which has thus far failed to …

Out Of Options: The Obstructions Hindering Victims Of Non-State Actor Violence Under Current Asylum Law, Kenneth D. Law Jr.

Brooklyn Law Review

Each year tens of thousands of immigrants head to the United States’ shores in the hope of achieving their version of the “American Dream.” This dream is now more elusive than it has ever been due to the Trump Administration’s attempts to limit legal migration by, to an extent, removing certain avenues of entry. Specifically, the Trump Administration severely hindered the ability of victims of domestic and gang violence to apply for one of the few forms of relief afforded to them: asylum. This note analyzes how decisions such as former Attorney General Jeff Sessions’ opinion in Matter of A-B- …

To Protect Freedom Of Expression, Why Not Steal Victory From The Jaws Of Defeat?, Evelyn Mary Aswad

Washington and Lee Law Review

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation.

Those concerns were …

Growing Old And Getting Sick Are Dangerous In Prison: A Moral And Legal Argument For “Justice, Not Vengeance”, Jillian Sauer

Undergraduate Theses

In 2017 the Kentucky DOC reported that Kentucky prisons housed 2,521 persons categorized as “elderly”. Even though individuals in this population are more susceptible to violence and risk developing age-related illnesses the care of these individuals is not a financial priority for those in power. These individuals occupy a unique position as a marginalized group within a marginalized group, and one which is growing rapidly. As a result, it is necessary to develop a response drawing from Catholic social teaching and criminal justice ethics which addresses the unique problems faced by this population. At the core of this response is …

Between Hope And Critique: Human Rights, Social Justice And Re-Imagining International Law From The Bottom Up, Lorenzo Cotula

Georgia Journal of International & Comparative Law

No abstract provided.

Myanmar's Genocide And The Legacy Of Forgetting, Catherine Renshaw

Georgia Journal of International & Comparative Law

No abstract provided.

Threats To The Rule Of Law In Africa, John Mukum Mbaku

Georgia Journal of International & Comparative Law

No abstract provided.

The Constitutional Law Of Equality In Canada, Kathleen E. Mahoney

Maine Law Review

On April 17, 1982, Canada repatriated its constitution from the Parliament at Westminster, sweeping away one of the final vestiges of its colonial past. At the same time, a Canadian Charter of Rights and Freedoms was constitutionally entrenched, giving the people express constitutional rights for the first time. The equality provisions, in particular, represented a new era in Canadian constitutional law. The intense debate leading up to the entrenchment of the Charter raised profound questions about the basic nature of the country, its values, and its ability and willingness to acknowledge equality for women and other disadvantaged groups. Since the …

Taxation And Business: The Human Rights Dimension Of Corporate Tax Practices, Reuven S. Avi-Yonah

Law & Economics Working Papers

If we want to narrow the North-South divide that threatens our world, some limits on tax competition are inevitable. The world faces a crucial choice in the 2020s. We can either continue retreating from globalization in favor of xenophobic nationalism, tariffs, immigration restrictions, and exchange controls. That road leads ultimately to war, as it did in the 1930s. Or we can revive globalization by investing in a robust social safety net, infrastructure, education, and job creation. While more needs to be done, we have made significant progress in curbing tax competition in the last decade. The key move now is …

Queering The Dream—The Impact Trump’S Decision Has On Lgbtq+ Dreamers, Candelario Saldana

University of Miami Race & Social Justice Law Review

On June 15, 2012, President Obama created the Deferred Action for Childhood Arrivals (“DACA”) program, which was an exercise of prosecutorial discretion that provided temporary relief from deportation to youth known as Dreamers. On September 5, 2017, the Trump administration announced that it would begin phasing out the program. The fate of the program has recently been litigated in courts including the Supreme Court, with a decision pending from the Supreme Court anytime in 2020 (although there is a push to stall a decision due to the COVID-19 pandemic). In this article I discuss the historical context of DACA and …