Human Rights Law Commons^™

Sexual Profiling & Blaqueer Furtivity: Blaqueers On The Run, T. Anansi Wilson

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

This article has taken some time to recollect. I have been struggling to find the grammar to communicate a phenomenon that is both central to BlaQueer life and beyond BlaQueer living. This difficulty, the silences, the gaps, the nonsensical and agrammatical nature of this phenomena—that of BlaQueer furtivity, the strict scrutiny of Black life and sexual profiling—are central features not only of this project but of the legal, extralegal and social logics and powers that mark, make and remake BlaQueer folks as always, already furtive, subject to strict scrutiny and necessarily sexual profiling. I have been struggling with whether to …

The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis

Helm's School of Government Conference - 2021-2024

The paper address the nature of the principles of the Declaration and the Declaration's relationship to the Constitution and how these related to slavery. The argument is that the Declaration did stand for universal equality of the individual before God and the law and therefore its principles condemned slavery. The Constitution did not embrace slavery even though it failed to ban slavery but did set the foundation for the end of slavery.

Judges 20:48, Dorien Porter

Helm's School of Government Conference - 2021-2024

No abstract provided.

Jus Gentium, Natural Law, And Grotius’ Treatise: The Impact Of International Law’S Classical Heritage On Today’S Enforcement Dilemma, Faith Chudkowski

Helm's School of Government Conference - 2021-2024

No abstract provided.

George Mwanza And Melvin Beene V Attorney General Select Judgment No 33 Of 2019, O'Brien Kaaba

SAIPAR Case Review

The case came to the Supreme Court by way of appeal from the High Court. The two appellants were inmates at Lusaka Central Prison. It turned out that the appellants were HIV positive and were on Anti-Retroviral Treatment (ART). The medical condition and treatment required that they be provided with food of a balanced diet in line with their medical condition.

The prison authorities, however, only provided limited quantities of maize sump for breakfast; maize meal (nshima) with dry sardines for lunch and super.2 The food was often rotten and contained foreign particles. Not only was it of of poor …

Advancing Reproductive Justice In Latin America Through A Transitional Justice Lens, Rosario Grimà Algora

Michigan Journal of Gender & Law

Reproductive autonomy is a pivotal part of women’s access to equal citizenship, yet it has not been included in any international nor regional human rights treaty. In the past decades, the U.N. Committees, notably the CEDAW Committee, and regional human rights bodies, particularly the Inter-American System for the Protection of Human Rights, have timidly advanced reproductive justice through their jurisprudence, including through the use of reparations. Drawing from the standards of reparations developed in the field of transitional justice, human rights bodies increasingly rely on reparations to enhance the transformative effects of their decisions. These reparations intend to include a …

The Right To Remain, Timothy E. Lynch

Faculty Works

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, "No one shall be arbitrarily deprived of the right to enter his own country." Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR's preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens both documented and undocumented - except under the rarest circumstances. As a result, the ICCPR right to remain in one's own …

The Future Of Multinational Accountability Within The Environmental Policy Nexus, Lauren Beasley

Independent Study Project (ISP) Collection

The purpose of this paper is to examine current international environmental policy shortcomings regarding multinational accountability, explore future legally binding options, and offer a resolution towards effective accountability mechanisms. To do so, it uses a two-part methodology composed of a comprehensive engagement with existing secondary sources from the academic literature and four interviews with experts in the field. The paper builds out considerations in seven key areas for normative consideration regarding the future of legally binding environmental policy. These considerations are hard law considerations in: International Law, International Human rights law, International Humanitarian Law, and International Environmental Law and procedural …

Adult Conservatorship In The United States: Flaws And Proposed Solutions To The Legal System, Margaret Sheffield, Alex Stevens

Brigham Young University Prelaw Review

Despite attempts to protect incapacitated adults in the United States, financial exploitation of the elderly and disabled remains a serious problem. Adult conservatorships are often established to offer incapacitated adults protection. However, many cases of adult conservatorships lead to increased abuse due to lack of accountability from conservators. This paper provides a brief overview of abuse towards incapacitated adults and proposes a solution in the form of a federal office entitled the Office of Adult Conservatorship and Guardianship Enforcement (OACE) which would be established under the United States Department of Health and Human Services.

The Crime Of Sedition: At The Crossroads Of Reform And Resurgence, Adam M. Smith, Charlene Yim, Marryum Kahloon, Human Rights Institute

Human Rights Institute

The offense of “sedition” — often characterized as criminalizing the incitement of rebellion against the government — is an archaic crime that is frequently used to target political speech. Introduced in the sixteenth century in England specifically to suppress dissent, sedition laws spread through the British colonies. These laws still persist in some legal systems, and while there are reforms underway in some of those jurisdictions, in a few outliers, the offense continues to be prosecuted — and in some there has been a resurgence in cases.

Sedition laws have been criticized by the United Nations (“U.N.”), human rights experts, …

Socialist Republic Of Vietnam V. Pham Thi Doan Trang, David Mccraw, Human Rights Institute

Human Rights Institute

On the night of October 6, 2020, at the conclusion of a virtual human rights meeting between the governments of the United States of America and Vietnam, Vietnamese police arrested the journalist and human rights activist Pham Thi Doan Trang at her home in Hanoi. Ms. Trang was arrested and detained for allegedly “conducting propaganda against the Socialist Republic of Vietnam” and “making, storing, spreading information, materials, items for the purpose of opposing the State of Socialist Republic of Vietnam” — two of the most notorious of Vietnam’s fifteen national security offenses.

It would be a full year — during …

Unofficial Torturers And Helpless Victims: Applying The Convention Against Torture To Organized Criminal Groups, Emmanuel Orozco Castellanos

Independent Study Project (ISP) Collection

Since its inception, the United Nations Convention Against Torture (UNCAT) conceived torture as a state crime. The Convention established a so-called “state-nexus” that effectively excludes torture committed by non-state actors. The Committee Against Torture as well as the world’s major anti-torture NGOs have almost exclusively focused on ill-treatment perpetrated by state entities. Yet, there have been efforts to extend the definition to private actors, including the “de facto authority” approach, and the due diligence doctrine. This article explores the effectiveness of these efforts to expand the scope of the UNCAT when applied to organized criminal organization such as gangs and …

Irregular Migration In Morocco: A Case For Constructionism, Mourad Khalil

Independent Study Project (ISP) Collection

Separated by only 14 kilometers of water from Spain, Morocco has become a common destination for many sub-Saharan irregular migrants trying to reach Europe. With a large population of these migrants, Morocco has had to make important decisions on how to manage its irregular migrant population. However, the terrible conditions and regular violations of human rights that irregular migrants in Morocco are subject to lead one to ponder the role that international relations has and the extent to which human rights is a consideration in the policymaking of irregular migration. Applied to the three primary theories of international relations, liberalism, …

How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves

Dickinson Law Review (2017-Present)

No abstract provided.

Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson

Dickinson Law Review (2017-Present)

The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation is defined …

Human Dignity As A Chameleon, Ariel L. Bendor, Michal Tamir

Cardozo International & Comparative Law Review

This article offers an innovative argument, according to which courts do not interpret human dignity according to an abstract theoretical position on the nature of the value only, nor subordinate themselves to the subjective purpose of the drafters of a constitution. Thus, courts-whether in the United States, where human dignity is not explicitly mentioned in the Constitution, or in countries where the right is constitutionally enshrined, such as Germany, South Africa, and Israel-interpret and apply human dignity on the basis of the entirety of the provisions of the particular constitution. Human dignity serves as a constitutional chameleon in the sense …

No Hiding From Justice: Universal Jurisdiction In Domestic Courts, Heidi R. Gilchrist

Faculty Scholarship

No abstract provided.

Transnational Migrant Deterrence, Anita Sinha

Scholarly Articles in Law Reviews & Journals

The governance of global migration increasingly relies on what critical migration scholarship refers to as externalized control. Externalization encompasses limiting human mobility through the imposition of migration control measures by transit states, as well as by states that are geographically proximate to destination states. Destination states are at a minimum complicit in the creation and operation of these externalized migration control systems. To capture this phenomenon, this Article offers a reconceptualization of externalization as transnational migration deterrence. The objective ofthis nomenclature is to provide a framework that highlights the role of destination states, to build a lexicon of accountability for …

A Comparative Perspective On Safe Third And First Country Of Asylum Policies In The United Kingdom And North America: Legal Norms, Principles And Lessons Learned, Susan M. Akram, Elizabeth Ruddick

Faculty Scholarship

Wealthy refugee-receiving countries across the global north have recently been experimenting with systems that they believe will allow them lawfully to remove or turn back asylum-seekers reaching their borders, without considering their claims for international protection. These include the Trump administration's Asylum Cooperation Agreements (ACAs), the United Kingdom's Nationality and Borders Act, and the recent amendments to Denmark's Aliens Act that will allow asylum-seekers to be transferred to third countries for processing. Although these systems have many important differences, they rest on a shared premise that neither the Refugee Convention nor international, regional or domestic human rights laws prohibit such …

Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim

Faculty Publications

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.

In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

The Human Rights Due Diligence Standard-Setting In The European Union: Bridging The Gap Between Ambition And Reality, Jernej Letnar Černič

Global Business Law Review

Globalization has, over the past decades, erased borders between continents and countries. It has propelled international trade to previously unforeseen heights. Nonetheless, it has brought about not only positive impact, but also negative consequences for individuals and communities worldwide. Businesses have often been alleged to have been directly or indirectly involved in human rights violations. On the other hand, rights-holders have often found it difficult to enforce corporate human rights obligations and accountability either at home or abroad. Nonetheless, the field of business and human rights has in recent years witnessed seminal developments from the adoption of binding laws in …

Canadian Corporations Bound By The Phoenix: Setting The Path For The United States, Kelly Brickman

Global Business Law Review

This Note argues that the United States courts have jurisdiction to consider corporate liability for international law violations of human rights under the reasoning of the Supreme Court of Canada, in Nevsun Resources Ltd. v. Araya. The United States Supreme Court has escaped holding such liability exists, but Canada has outlined how countries, such as the United States, no longer can avoid holding corporations liable under customary international law. Corporate liability for human rights violations committed abroad is a cutting-edge issue. The United States Supreme Court has considered the issue before, but the Court used different analyses and was …

Business, Human Rights, And Transitional Justice: Overcoming The Regulatory Dysfunction Of International Law, Jelena Aparac

Global Business Law Review

It is said that traditional international public law is state-centric and concerns mostly State obligations and responsibility. For this, it excluded corporate actors from any accountability mechanism, even when the corporations contribute to armed conflicts and international crimes. International law does not provide a clear definition of what amounts to “subjects” under this set of rules or criteria for how to determine legal personality. At the same time, some branches of international public law directly regulate corporate actions, namely international economic law and international humanitarian law. Conversely, international courts and tribunals have accepted the corporate jus standi, in some …

Unshackled: Stories Of Redemption Among Serious Youth Offenders, Julie E. Mcconnell

Richmond Public Interest Law Review

In a series of decisions concerning child defendants, the United States Supreme

Court has embraced the understanding, based on adolescent brain

development, that the legal system must recognize children are different than

adults concerning criminal culpability and sentencing. That recognition, culminating

in Miller v. Alabama and Montgomery v. Louisiana, led to the opportunity

for thousands of individuals across the country, initially sentenced

to death-in-prison sentences when they were minors, to gain a meaningful

opportunity for release. These cases permanently banned mandatory life sentences

for children. In Virginia, the legislature now allows reconsideration

of these cases through hearings before the parole …

Doing Better For Indigenous Children And Families: Jordan’S Principle Accountability Mechanisms Report, Naiomi Metallic, Hadley Friedland, Shelby Thomas

Reports & Public Policy Documents

In Part 1 of this report, we attempt to summarize the long history that forms the context of the need for independent accountability measures to meaningfully address the discrimination identified by the CHRT in Caring Society and prevent similar practices in the future. Drawing from this context, in Part 2, we set out what we identify as 10 key accountability needs of Indigenous children and families that must be addressed in order to provide effective accountability. Finally, in Part 3, we discuss features of effective accountability mechanisms and propose three interconnected mechanisms that we believe address the accountability …

Human Rights Council's Universal Periodic Review As A Forum Of Fighting For Borderline Recommendations? Lessons Learned From The Ground, Kazuo Fukuda

Northwestern Journal of Human Rights

Highly acclaimed as a key innovation of the United Nations Human Rights Council, the Universal Periodic Review (UPR) was created in 2006 as a cooperative, peer-review mechanism to shift away from the highly politicized Commission on Human Rights. Despite the significance and hope attached to the UPR, it has been conspicuously under-examined in the U.S. legal scholarship. And most relevant literature elsewhere has avoided directly addressing the fundamental question of exactly what the UPR’s added value is to the global human rights regime in terms of its direct contribution to improving human rights situations on the ground. This is mainly …

The Healthcare Legacy Of The Mission Civilisatrice In Unincorporated U.S. Territories, Sam F. Halabi

Northwestern Journal of Human Rights

Individual and population health in unincorporated U.S. territories – American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands – lag terribly behind those in the 50 U.S. states and D.C. The populations in the territories – with drastically higher rates of poverty – suffer and die from chronic conditions like cancer, diabetes, and heart disease at far higher rates; must find facilities and doctors thousands of miles away for even moderately complex cases; and perpetually struggle to make access to basic services available. While scholars have long pointed to the disparate treatment of these populations …

History Repeating Itself: The Resurgence Of The Taliban And The Abandonment Of Afghan Women, Hannah Bogaert

Immigration and Human Rights Law Review

For two decades the United States and its allies fought against the Taliban in Afghanistan. After the U.S. withdrawal from Afghanistan in late 2021, the Taliban has once again claimed the power of the country. The Taliban has already begun to implement restrictions that deny Afghan women their human rights. This article will outline the Taliban’s disregard for the International Bill of Human Rights, analyzing the Taliban’s observance of human rights before the U.S. invasion in 2001, post- U.S. withdrawal expressions by the Taliban in 2021, and post-U.S. withdrawal actions in 2021. Finally, this article will analyze different actions available …

The Migrant Protection Protocols: Two Administrations, One Outcome, Alexandria Doty

Immigration and Human Rights Law Review

Immigrants have long seen the southern border of the United States as the last stop before they are able to enter the land of the free. The Department of Homeland Security, however, strives to make the southern border as inhospitable as possible to those hoping to cross. The Migrant Protect Protocols is the latest attempt from Washington to block access to the United States to immigrants who are detained by forcibly returning them to Mexico to await their deportation proceedings. While Americans have read stories of families being torn apart at the border or listened to interviews of politicians promising …