Human Rights Law Commons^™

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Protecting The Right To Live In Isaiah's Brave New World, Jonathan K. Stubbs

Law Faculty Publications

No abstract provided.

The Case For Self-Determination, Guyora Binder

Journal Articles

This lecture offers an analysis and defense of the right of self-determination of peoples. The argument begins by analyzing self-determination into its universalist and nationalist components. The universalist component of self-determination is satisfied wherever institutions of government are majoritarian. The nationalist component of self-determination is satisfied to the extent that institutions of government are identified with particular communities. The universalist compoent is now widely recognized as an authoritative principle of international law. The nationalist component remains controversial, particularly outside of the particular context of the dismantling of European colonial empires. The lecture proceeds to defend the nationalist component by attacking …

The Right To Education As An International Human Right, Jost Delbruck

Articles by Maurer Faculty

No abstract provided.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

JAPANESE CRIMINAL JUSTICE

By A. Didrick Castberg

New York, New York: Praeger Publishers, 1990. Pp. 153. $42.95.

THE INTERNATIONALIZATION OF HUMAN RIGHTS

By David P. Forsythe

Lexington, Massachusetts; Lexington Books, 1991. Pp. 209.$34.00.

FEDERAL COURTS AND THE INTERNATIONAL HUMAN RIGHTS PARADIGM By Kenneth C. Randall

Durham, North Carolina; Duke University Press. 1990. Pp. 295. $45.00.

ROMAN LAW AND COMPARATIVE LAW

By Alan Watson

Athens, Georgia: University of Georgia Press, 1991. Pp. 328. $50.00

THE U.S. CONSTITUTION AND FOREIGN POLICY

By Victoria Marie Kraft

New York, New York: Greenwood Press, 1990. Pp. 185. $45.00.

Book Review, Bert B. Lockwood Jr.

Faculty Articles and Other Publications

The authors have made the advancements in the science of forensic anthropology achieved in these cases understandable to the lay audience and they have done so in a book that is difficult to put down once opened.

Exporting The American Bill Of Rights: The Lesson From Romania, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.

The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port

Faculty Scholarship

Some observers have argued that because of a lack of enforcement powers, international law has relatively little impact on the conduct of nations and, in fact, may not be "law" at all. Others have inquired whether legal norms which underlie international human rights law have any influence on the domestic law of signatory nations. This article argues that international law can profoundly influence the development of the domestic laws of nations regardless of the lack of coercive enforcement powers. This point becomes clear through a consideration of Japan's experience in adopting and internalizing international law norms.

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley, Otto Lagodny

Vanderbilt Journal of Transnational Law

This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

Short V. The Kingdom Of The Netherlands: Is It Time To Renegotiate The Nato Status Of Forces Agreement?, Steven J. Lepper

Vanderbilt Journal of Transnational Law

Major Lepper examines an apparent irreconcilability between the NATO Status of Forces Agreement (SOFA) and the European Convention on Human Rights (ECHR) as reflected in the recent Dutch High Court decision of Short v. The Kingdom of the Netherlands. Staff Sergeant Short, a member of the United States Air Force, was charged with the murder of his wife. Under the SOFA, the Netherlands was obligated to surrender Short to the United States. It refused, basing its actions on its adherence to the ECHR and its concerns about the possible implementation of the death penalty in the United States.

The ECHR …

Fighting The War On Drugs In The "New World Order": The Ker-Frisbie Doctrine As A Product Of Its Time, Kirk J. Henderson

Vanderbilt Journal of Transnational Law

This Note analyzes the United States policy of abducting fugitives from abroad to stand trial when an asylum nation refuses an extradition request. The United States has justified this so-called "snatch" authority under the century-old Ker-Frisbie Doctrine. Pursuant to this doctrine, the Supreme Court has refused to examine the means by which a person has been brought before a court. In 1974, however, the United States Court of Appeals for the Second Circuit created a narrow exception that would bar jurisdiction if an accused proved acts of torture, but no defendant has ever met this standard.

Since Ker and Frisbie …

Human Rights In The World Court, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

In this Article, Judge Schwebel reviews the cases of the International Court of Justice and its predecessor, the Permanent Court of International Justice, that have substantial human rights implications. He observes that, while the World Court is not a human rights court in the contemporary sense of that term, since standing in contentious cases is limited to States, it nevertheless has constructively dealt with a number of important issues of human rights, as in its early holding that individuals may be the direct beneficiaries of treaty rights.

The Court has played a notable role in promoting the protection of human …

Human Rights As Rhetoric: The Persian Gulf War And United States Policy Toward Iraq, Kunal Parker, Peter M. Labonski

Articles

No abstract provided.

Rule Of Law In A State Of Emergency, John P. Humphrey

Dalhousie Law Journal

Is there any such thing as an absolute human right? Part of the answer to this question will be found in article 4 of the United Nations' Convenant on Civil and Political Rights. The article says in part that "in time of public emergency which threatens the life of the nation ... the States Parties to the present Covenant may take measures derogating from their obligation under the present Covenant to the extent strictly required by the exigencies of the situation ... " Similar provisions will be found in regional conventions on the human rights.

Le Rôle Organisations Internationales Dans La Protection Du Droit À La Vie., Paul Gormley

Dalhousie Law Journal

The emerging role of international and regional organizations toward the realistic protection of the right to life (along with closely related guarantees) constitutes the scope of the scholarly treatise, which is an outgrowth of the author's participation at the Research Center of the Hague Academy of International Law. Precisely Johannes van Aggelen of the Center for Human Rights, United Nations Office at Geneva, is one of the rising scholars of the coming generation of human rights lawyers. Indeed, his work in such closely related fields as humanitarian law, the Arab-Israeli conflict, the right to an adequate food supply and supporting …

Second Class Rights? Principles And Compromise In The Charter, Denise G. Réaume, Leslie J. M Green

Dalhousie Law Journal

Minority language rights are both historically and politically central to the Canadian constitution. It is also commonly supposed that they are fundamental rights, rooted in principle, and deserving generous interpretation by the courts. For a time, it seemed that the Supreme Court of Canada shared this view. In the Manitoba Language Reference, for example, they said that "The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity." In Mercure v. A.G. of Saskatchewan they reiterated: "It can hardly be gainsaid that language is profoundly anchored in the human condition. Not …

The Human Rights Committee And Articles 7 And 10(1) Of The International Covenant On Civil And Political Rights, 1966, P R. Ghandhi

Dalhousie Law Journal

The International Covenant on Civil and Political Rights and the Optional Protocol thereto, adopted by the General Assembly of the United Nations in Resolution 2200A (XXI) t of 16 December 1966, entered into force on 23 March 1976 in accordance with Articles 49 of the Covenant and 9 of the Protocol respectively. As at 28 July 1989, there were eighty-seven States Parties to the Covenant and forty-five States Parties to the Protocol.

Testimony Before The Senate Committee On Foreign Relations, Convention Against Torture, David F. Forte

Law Faculty Presentations and Testimony

Hearing to examine issues related to U.S. ratification of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requiring nations to take measures to prevent torture and cruel and inhuman treatment, to prosecute or extradite alleged torturers, and to provide civil remedies for torture victims.

Support for U.S. ratification of UN convention against torture; examination of and concerns about proposed reservations and conditions to convention text (related materials, p. 49-60, 69-72); justification for certain reservations relating to U.S. sovereignty.

The Basic Collective Human Right To Self Determination Of Peoples And Nations As A Prerequisite For Peace, Frank Przetacznik

NYLS Journal of Human Rights

No abstract provided.

Major Contemporary Issues In Extradition Law, Christopher L. Blakesley

Scholarly Works

In this piece Professor Blakesley provides remarks on high crimes in international law, and the ability to extradite state and high government officials for committing them.

The Effect Of The Tiananmen Square Massacre Upon Negotiations For The Draft Basic Law Of The Hong Kong Special Administrative Region, Wendy Dullea Bowie

Penn State International Law Review (1982 - 2011)

This Comment will examine the effect of the massacre and the Chinese government's subsequent actions upon the negotiation of certain provisions of Hong Kong's future laws. Section II will examine the massacre, China's subsequent denial of any massacre, and Hong Kong's reaction to those events. Section III will discuss Great Britain's acquisition of Hong Kong, and the China-Britain agreement regarding Hong Kong. Section IV will compare provisions for the protection of human and individual rights contained within the Constitution of the People's Republic of China (PRC Constitution), the China-Britain Joint Declaration, (Joint Declaration) and the Draft Basic Law (DBL) which …

The Legal Implications Of The Refugee Crisis, R. K.L. Panjabi

Vanderbilt Journal of Transnational Law

CLOSING THE DOORS: THE FAILURE OF REFUGEE PROTECTION By David Matas with Ilana Simon Toronto: Summerhill Press 1989

David Matas is a Canadian lawyer who has served on a Task Force on Immigration Practices and Procedures, has participated in the Canadian Council for Refugees, and has spoken publicly on the refugee crisis. He has written a critical, provocative analysis of the response of the Western world to the refugee problem, with emphasis on the policies of the present Government of Canada. His aim is to expose the injustices of the legislative and procedural systems for refugees in Canada. He writes …

International Human Rights Law Concerning Women: Case Notes And Comments, Rebecca J. Cook

Vanderbilt Journal of Transnational Law

This Essay addresses the application of international human rights law to women. Most of the cases addressed in this Essay involve alleged discrimination based on sex or marital status. Professor Cook notes that international, regional, and national courts have applied human rights principles to ensure that women's human rights are upheld, although not always to the full extent originally envisioned under the Universal Declaration of Human Rights. To illustrate this point, Professor Cook reviews cases arising under international, regional, and specialized treaties, including the International Covenant on Civil and Political Rights, and the extent to which such discrimination interferes with …

Tibet To Tienanmen: Chinese Human Rights And United States Foreign Policy, W. Gary Vause

Vanderbilt Law Review

The roof of the world, land of the snows, alleged home of the Abominable Snowman, and place for the timeless meeting of mountain and sky--these are the Western visions of Tibet.' Most Americans know little else about this strange and exotic land shrouded in historical obscurity. Modern Tibet is a curious stockpot of native Tibetans and immigrant Chinese, which until recently was seasoned with increasing numbers of Western tourists, backpackers of all ages, vagabonds,and visitors from neighboring Nepal.'On June 4, 1989, China's 27th Army brutally crushed democracy demonstrations that had extended for seven weeks in Beijing and other Chinese cities. …

The Concept And Present Status Of The International Protection Of Human Rights: Forty Years After The Universal Declaration, Annemieke Holthius

Dalhousie Law Journal

John P. Humphrey, the first Director of the Human Rights Division of the United Nations, in his preface to The Concept and Present Status of the International Protection of Human Rights - Forty Years after the Universal Declaration, observes that the question of the international protection of human rights "has received far too little attention from scholars, statesmen, diplomats and human rights activists". There "has so far been no attempt ... to provide a comprehensive account" of the concept of "protection" within the international law of human rights. In his new book, Dr. B.G. Ramcharan, the distinguished lawyer-adviser in the …

The Politics Of The Imagination: A Life Of F.R. Scott, J King Gordon

Dalhousie Law Journal

The task of a biographer is a challenging one at best. And when the subject is one who has achieved distinction in many fields the difficulties are magnified many times. Better, perhaps, to settle for a Festschift where colleagues and friends in fields in which the subject has excelled join together to pay their separate tributes. So in the case of Frank Scott and his biographer, Sandra Djwa. She is a professor of literature and has achieved recognition for the work she has done on the writings and life of E.J. Pratt. It was undoubtedly Frank Scott, the distinguished Canadian …

Interdependence And Permeability Of Human Rights Norms: Towards A Partial Fusion Of The International Covenants On Human Rights, Craig Scott

Osgoode Hall Law Journal

Using the doctrine of interdependence of human rights as a starting point, the author considers the extent to which international human rights norms located in the International Covenant on Economic, Social and Cultural Rights (ICESCR) "permeate" the parallel International Covenant on Civil and Political Rights (ICCPR), thereby permitting certain social and economic rights to be subjected to the individual petition procedure under the ICCPR's Optional Protocol. After elucidating the notion of interdependence, the author evaluates the salience of the concept in international human rights discourse, and weighs this against arguments for the continued normative separation of the Covenants based on …

One Step Forward, One Step Back, Human Rights In The People's Republic Of China In 1987/88, John F. Copper, Ta-Ling Lee

Maryland Series in Contemporary Asian Studies

No abstract provided.

The Dust Of Life: The Legal And Political Ramifications Of The Continuing Vietnamese Amerasian Problem, Ernest C. Robear

Penn State International Law Review (1982 - 2011)

Vietnamese disparagingly refer to them as bui doi. Americans refer to them as persons "of particular humanitarian concern to the United States." In both cases the reference is to Amerasians, the children and young adults of mixed American/Asian parentage. For the purpose of this Comment, an Amerasian may be defined as one whose mother is Asian and whose father is American. Since the last United States forces pulled out of Vietnam on April 30, 1975, these Amerasians have been caught up in a bureaucratic tug-of-war between Washington and Hanoi. Despite positive legislation, the problems faced by Vietnamese Amerasians still …

Recent Developments: The European Convention For The Prevention Of Torture And Inhuman Or Degrading Treatment Or Punishment, David P. Fidler

Articles by Maurer Faculty

No abstract provided.