Human Rights Law Commons^™

The Regulation Of Intercountry Adoption, Mary E. Hansen, Daniel Pollack

ExpressO

As of January 2006, the United States was the only major receiver of children through intercountry adoption that had not implemented the 1993 Hague Convention on Intercountry Adoption. The U.S. signed the Hague Convention in 1994, but did not pass implementing legislation until 2000. Regulations pursuant to the legislation were proposed in 2003, but final regulations did not go into effect until March 2006. The slow pace was partly the result of Congressional wrangling over designation of a regulator and partly the result of a prolonged conversation between the designated regulator and the adoption community over specific regulations.

Finalization of …

Toward An International Standard Of Abortion Rights: Empirical Data From Africa, Chad M. Gerson

ExpressO

In the Fall of 2005 I published a brief Development in the Chicago Journal of International Law concerning the prospects for establishing the right to obtain an abortion as a fundamental human right. See 5 Chi. J. Int’l L. 753. In that article I argued that the right to choose and access to abortion services would greatly improve the health and status of women and children in the developing world.

In this article, I follow up with empirical data regarding the status of abortion rights in African countries. These data are compared to maternal and infant mortality and contraceptive use. …

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

Lawrence V. Texas Overrules San Antonio School District. V. Rodriguez, John H. Ryskamp

ExpressO

San Antonio School District v. Rodriguez used the scrutiny regime to decide whether there was an Equal Protection right to housing. However, Lawrence v. Texas abolished the scrutiny regime. So how do we evaluate whether there is an education right under Equal Protection? The right to education in the Texas Constitution shows us that we use the liberty Equal Protection right to determine if state laws are essential to education; this is the meaning of Lawrence's rule that laws are not permitted respecting liberty which do not "substantially further a legitimate state interest." Note that this takes substantially from intermediate …

Democratic Governance: An Emerging Customary Norm?, Jackson N. Maogoto

ExpressO

International law has traditionally regarded the peoples of the world as being represented in the international arena by the governments in de facto control of their respective states. Except where such governments are imposed by foreign invasion or conduct themselves in ways inimical to international peace and security, these governments are conventionally deemed worthy of respect and protection under international law - in particular, respect regarding ‘matters which are essentially within the domestic jurisdiction’ and protection ‘from the threat or use of force’. The method by which a government of domestic origin achieves or retains power was not ordinarily thought …

The International Criminal Tribunal For Rwanda: A Paper Umbrella In The Rain? Initial Pitfalls And Brighter Prospects, Jackson N. Maogoto

ExpressO

The tragedy which befell Rwanda in 1994 deserves a special place in the bloodstained pages of history. The Rwandan genocide merits distinction primarily because of its shocking efficiency, its scale and its proportional dimensions among the victim population. The Security Council's resolution establishing the ICTR articulates a set of decisions, assumptions, wishes, and objectives. Primarily, the States that voted in favour of the creation of the ICTR indicated that the root of the problem was individual violations of international criminal law. Only one State that voted for the resolution did not equate ipso facto ICTR actions with justice. That State …

Sovereignty In Transition: Human Rights And International Justice, Jackson N. Maogoto

ExpressO

Sovereign excesses in the twentieth century resulted in the murder of approximately 170,000,000 persons by their sovereign. This statistic, a potent testimony of sovereign excesses through gross and systematic human rights violations firmly places human rights and humanitarian problems on the international plane. This reality (identified and articulated in the Report of the Secretary General’s High-level Panel on Threats, Challenges and Change) firmly places human rights problems on the international plane and mandates a fundamental rethinking about the basis of sovereignty’s political and associational organization in the new millennium. This Article has as its modest aim an examination and analysis …

Traditional Values, Or A New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

ExpressO

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis, Christian Eckart

Cornell Law School J.D. Student Research Papers

The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.

Civil Liberties V National Security In Times Of Crisis: The Past Use Of Internment Without Trial In The United States And The United Kingdom And The Lessons For The Ongoing 'War On Terror.' , Richard D. Donald

ExpressO

History teaches that, in time of crisis, we have often sacrificed fundamental freedoms unnecessarily. The Executive and Legislative Branches, reflecting public opinion formed in the heat of the moment, frequently have overestimated the need to restrict civil liberties. This has been especially true in regards to internment without trial. Neither novel nor normal, internment is an emergency measure which has regularly been employed in times of national crisis. Through an examination of two historical models this project aims to identify some the difficulties associated with the application of a policy of internment. Given it’s ongoing use around the world in …

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As …

Human Rights Enforcement In The 21st Century, Douglas L. Donoho

ExpressO

The international human rights system’s approach to enforcement and implementation of human rights has proven unrealistic in a world characterized by oppression, poverty and armed conflict. In this essay, I suggest that traditional approaches to enforcement, while serving some important functions, are inadequate to meet the challenge of effectively realizing human rights in the 21st Century. These inadequacies include a variety of institutional, conceptual and jurisprudential weaknesses, including: (1) failure to develop a coherent overall structure with institutions whose attributes are likely to promote the legitimacy of international decision-making and encourage state respect; (2) refusal to make important distinctions among …

The Day Laborer Debate: Small Town, U.S.A. Takes On Federal Immigration Law Regarding Undocumented Workers, Margaret B. Hobbins

ExpressO

Herndon, Virginia is the latest example of small town immigration issues exploding into the national debate on illegal immigration. This four-square mile town, population 22,000, was propelled into the national spotlight after a dramatic public reaction to Mayor Michael O’Reilly’s proposal to construct a hiring site for day laborers. Three months before the center even opened its doors, Herndon and Fairfax County faced a law suit challenging the legality of funding a day labor center that would inevitably extend its services to undocumented immigrants.

Small towns, adjusting to significant increases in the immigrant worker population, have become a new battlefield …

Appeasing The International Conscience Or Providing Post-Conflict Justice: Expanding The Khmer Rouge Tribunal’S Restorative Role, Nema Milaninia

ExpressO

Three decades after the Cambodian civil war, the leaders of the Khmer Rouge will finally be brought before an internationalized domestic tribunal. While the majority of those most responsible have died off or received immunity for their conduct, the Khmer Rouge Tribunal has the historic possibility of reaffirming the importance of international criminal justice and providing an historical narrative of the crimes committed and victims created.

This commentary evaluates the importance of restoration in transitional justice and the importance victims and witnesses play in post-conflict justice. This article will argue that previous post-conflict remedies required a balance of restorative and …

The Anomaly Of Guantanamo: Two Innocent Men Caught In A Devastating Legal Limbo, Lauren S. Elfant

ExpressO

No abstract provided.

Considering Standing, Sincerity, And Antidiscrimination, Chapin C. Cody

Working Paper Series

This Article will establish that an unrecognized norm, the “norm of sincerity,” is an implicit factor in the standing analysis in a certain class of equal protection cases. That class of cases includes equal protection claims where 1) courts have applied the “able and ready to compete” test to determine a plaintiff’s injury in fact, and where 2) the plaintiff has complained about discriminatory access to limited government resources. In those cases, a plaintiff cannot demonstrate injury in fact sufficient to meet Article III standing unless she shows that she sincerely intends to use the benefits at stake in the …

The Unexplored Option: Jewish Settlements In A Palestinian State, David M. Phillips

ExpressO

The withdrawal of Israeli settlers and soldiers from the Gaza Strip, the recent Hamas victory in the Palestinian Authority elections, and the results of the Israeli elections in which the newly-formed Kadima Party received a plurality of the votes have all focused attention upon the fate of Israeli Jewish settlements on the West Bank. Most parties consider the continued existence of the settlements as precluding a peaceful resolution of the Israeli-Palestinian conflict and their establishment as having violated international law. The assumption that their presence precludes peace is premised primarily on the assumption that Israeli settlements will eventually mean Israeli …

The Case For An International Truth And Reconciliation Commission, Alexandros Zervos

ExpressO

The limitations of International Criminal Tribunals (ICTs) and national Truth & Reconciliation Commissions (TRCs) suggest the need for a new type of transitional justice mechanism. ICTs focus excessively on retributory justice, with an inflexible format that does not adapt to local circumstances. TRCs are much more flexible and locally responsive but suffer from under-funding, corruption, and accusations of local political partisanship. An International Truth and Reconciliation Commission (ITRC) would sponsor TRC formation and operations as well as post-commission activities. Its mission would be to preserve TRCs local connections while providing them additional local independence, moral authority and financial support. Specific …

Linking Natural Resource Exploitation And Primary Health Care In Developing Countries, Alexandros Zervos

ExpressO

In exchange for loans from international financial institutions, natural resources companies should be made contractually responsible for achieving specific primary health care targets in certain developing countries they invest in. Primary health care is crucial for social/economic development, but many developing countries’ governments fail in its provision. Any effort to make natural resources companies responsible for primary health care would need to focus on goal setting, monitoring and legal enforcement. The latter would include both monetary sanctions and incentives tied to specific targets. The challenges facing this project are significant, but none are problematic enough to prevent its implementation.

Forced Pregnancy And The Icc, Milan Markovic

ExpressO

No abstract provided.

In The Best Interest Of The Child, Ellen L. Buckwalter

ExpressO

Each year more than 200,000 children in the United States are abducted by family members. When a child is abducted across international borders, the difficulties are compounded. Since the late 1970s, The Department of State’s Office of Children’s Issues has been contacted in approximately 16,000 cases involving children who were either abducted from the United States or prevented from returning to the U.S. by one of their parents.

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) adopted on October 24, 1980, reflects a worldwide concern about the harmful effects that parental kidnapping has on children …

Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen

ExpressO

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture.

The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, …

The Freedom To Manifest Religious Belief: An Analysis Of The Neccesity Clauses Of The Iccpr And The Echr, Todd Parker

ExpressO

This paper examines Article 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention on Human Rights. Both documents affirm freedom of religion as a fundamental human right, yet both recognize the need for restrictions on freedom of religion when “necessary.” The paper discusses the text of Articles 18 and 9, as well as European Court of Human Rights and Human Rights Committee cases interpreting and applying the Articles. The paper then analyzes several current laws restricting religious freedom on necessity grounds as to whether the restrictions are legitimate or illegitimate under the …

Arms Embargoes And The Right To Self-Defense In International Law , Matthew D. Vandermyde

ExpressO

Over the past few decades, a number of nations have argued that the mandatory arms embargoes imposed against them violated their right to self-defense. In some cases the Security Council has responded by adjusting the embargo to exclude its application to arms destined for the government, such as in Rwanda and Sierra Leone. But in other cases the Security Council has rejected the argument and refused to lift or adjust the embargo, such as in Bosnia and Liberia. In December of 2005, Somalia put forth a similar line of argument, asking the Security Council to lift the arms embargo imposed …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

ExpressO

The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: “Societies that trade liberty for security end often with neither.” Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism – including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government’s actions in fighting terrorism. The thesis throughout …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …