Human Rights Law Commons^™

Guide To Land Contracts: Agricultural Projects, International Senior Lawyers Project, Kaitlin Y. Cordes, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Agricultural investment contracts can be complex, with complicated provisions that are difficult to understand. This Guide provides explanations for a range of common provisions, and includes a Glossary of legal and technical terms. It assists non-lawyers in better understanding agricultural investment contracts, such as those available on the Open Land Contracts repository.

The Guide was prepared by International Senior Lawyers Project staff and volunteers in collaboration with the Columbia Center on Sustainable Investment.

Transparency In Land-Based Investment: Key Questions And Next Steps, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Large-scale investments in agriculture and forestry are often shrouded in secrecy. In many cases, they are negotiated without the involvement of affected communities, approved through opaque decision-making procedures, and governed by legal agreements that are difficult both to access and to understand. This systemic lack of transparency impedes accountability and exacerbates ongoing disagreements about the real costs and benefits for investors, host countries, and their citizens.

Jointly authored by CCSI and the Open Contracting Partnership, this briefing note examines why contract disclosure and a contracting process that is open, accessible, and inclusive are important; what such transparency entails; and how …

Recommending Transparency In Land-Based Investment: A Summary Of Relevant Guidelines And Principles, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

An emerging consensus on the need for greater transparency in land-based investment is increasingly evident across various forums. This document consolidates recommendations regarding transparency featured in guidelines and principles published by international organizations, government agencies, and multilateral or multi-stakeholder groups. Viewed together, these recommendations offer insight on the evolving narrative on transparency in land-based investment, assist stakeholders in addressing the issue of transparency, and provide an informed starting point for further analysis.

Human Trafficking In Multinational Supply Chains: A Corporate Director's Fiduciary Duty To Monitor And Eliminate Human Trafficking Violations, Laura Ezell

Vanderbilt Law Review

Corporate directors cannot afford to remain ignorant of human trafficking violations in corporate supply chains.' Corporations in the United States that benefit from supply-chain trafficking have been able to escape liability when the trafficking occurs in the labor force of their suppliers instead of the labor force of the corporation itself. However, the 2008 reauthorization of the Trafficking Victims Protection Act specifically targets this behavior under its criminal and civil provisions regarding financial benefit from labor trafficking. Corporations with trafficking violations in their supply chains risk criminal prosecution and civil suits filed by foreign and domestic victims, and the directors …

Inverting Human Rights: The Inter-American Court Versus Costa Rica, Robert S. Barker

University of Miami Inter-American Law Review

Costa Rica has for many years been deeply and genuinely committed to the worldwide rule of law and, in particular, to the protection of human rights through the inter-American legal system and to the jurisprudence of the Inter-American Court of Human Rights.

In the year 2000 Costa Rica’s Constitutional Chamber declared unconstitutional the country’s program of in-vitro fertilization, primarily because the program violated the right to life as guaranteed by the national Constitution and by international conventions, in that the in-vitro fertilization process exposed large numbers of embryos to death, as only a very small percentage of in-vitro fertilizations resulted …

The Outsized Costs Of Investor–State Dispute Settlement, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The negotiation of several mega-treaties in 2015, including the Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and other regional agreements, has generated substantial public discussion about the protections and privileges afforded to multinational enterprises through the investor-state dispute settlement (ISDS) mechanism in these treaties. ISDS has increasingly raised concerns among certain governments and civil society groups, particularly as a growing number of ISDS cases involve investors challenging a range of governmental measures taken in good faith and in the public interest, including measures related to environmental protection, public health …

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Hall Law Journal

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …

What Google Teaches Us About The Child Rights Movement, Yvonne Vissing, Sarah Burris, Quixada Moore-Vissing

Societies Without Borders

Technology both helps and hinders what we know about human rights. Use of Google is of central importance to both the Sociology of Knowledge and the creation of internet literacy. In this study, different search engines are compared regarding content of “child rights” in the fifty United States. Findings include: importance of algorithmic loading of sites; number of hits may not reflect the importance or accuracy of a topic; different search engines produce different findings; and personalized searches result in different results. Personalization of searches in accordance to one’s previous search history may result in people being given information that …

Sleep: A Human Rights Issue, Clark J. Lee

Homeland Security Publications

Recognition of sleep as a human rights issue by governmental and legal entities (as illustrated by recent legal cases in the United States and India) raises the profile of sleep health as a societal concern. Although this recognition may not lead to immediate public policy changes, it infuses the public discourse about the importance of sleep health with loftier ideals about what it means to be human. Such recognition also elevates the work of sleep researchers and practitioners from serving the altruistic purpose of improving human health at the individual and population levels to serving the higher altruistic purpose of …

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Nurturing Wings Or Clipping Them Off: The Philippine Approach To Female Labor Migration And A Potentially Redeeming Role For The Commission On Human Rights, Emily Sanchez Salcedo

Center for Business Research and Development

The large-scale migration of Filipino workers started in the 1970’s as inadequate local employment and livelihood opportunities pointed to overseas opportunities in the booming economy of oil-rich countries in the Middle East. Though initially dominated by male construction workers and seafarers, female migrant workers, mostly in the health care professions, in domestic services and in the entertainment industry, followed suit and, in the most recent available statistical report, have even slightly outnumbered the men. As of the end of 2014, 50.43% of the 2.32 million overseas Filipino workers are women. Collectively, these overseas workers sent about 27 billion dollars in …

Le Concept Dé Dignité Le Droit Américain, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Extraterritorial Application Of The Alien Tort Statute After Kiobel, Ranon Altman

University of Miami Business Law Review

This article explores when corporations can be held liable under the Alien Tort Statute for human rights abuses that are committed outside of the United States. The Alien Tort Statute grants the United States district courts jurisdiction for torts committed against foreigners in violation of the law of nations. While the Alien Tort Statute concerns international law, it does not indicate whether the district courts have jurisdiction over disputes that involve conduct outside of the United States.

In this article, I focus my analysis on the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. That case …

Corporations And The Limits Of State-Based Models For Protecting Fundamental Rights In International Law, David Bilchitz

Indiana Journal of Global Legal Studies

At the heart of international law lies a central tension. On the one hand, the fundamental rights recognized in international treaties protect the fundamental interests of individuals, obligating all actors who can affect these rights. One the other hand, international law has often been conceived of as a system in which the only legitimate actors are states. In turn, only states can be bound by the fundamental rights obligations in international treaties. To address this tension, two models have been proposed. The first is an "Indirect duty" approach, whereby the state remains the primary duty-bearer and must itself "create" the …

Human Rights And Global Public Goods: The Sound Of One Hand Clapping?, Neil Walker

Indiana Journal of Global Legal Studies

Each operating in a presumptively general or universal register, 'public goods" and "human rights" are among the most popular and visible contemporary carriers of ideas of global law and governance and are therefore prime sources for any broader project of global justice. Their combination, moreover, holds out the prospect of a fertile engagement between the two core concerns of modern political morality our collective requirements and potential (public goods) and our individual dignity and well-being (human rights). Yet for all their ambition, public goods and human rights each face the formidable challenge of placing considerations of political authority and political …

Statehood, Power, And The New Face Of Consent, Sheldon Leader

Indiana Journal of Global Legal Studies

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning …

One Pillar: Legal Authority And A Social License To Operate In A Global Context, Hans Lindahl

Indiana Journal of Global Legal Studies

The claim that businesses have a social license to operate acquires concrete form in the second pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs) in the fundamental distinction between "compliance with all applicable laws" and "respect for human rights." The aim of this paper is to critically examine the presuppositions that undergird this distinction and to explain how and why moving beyond state-centered thinking about law, in response to violations of human rights by globally operating businesses, requires acknowledging that there is one pillar that embraces states and businesses: the legal obligation to comply with international …

Some Newly Emergent Geographies Of Injustice: Boundaries And Borders In International Law, Upendra V. Baxi

Indiana Journal of Global Legal Studies

This conversation examines the relationship between the boundaries and borders in international law and the production of geographies of injustice through the lens of the colonial epistemologies, especially of private international law in the face of mass social disasters like the archetypal Bhopal catastrophe. I also address the languages and logics of coloniality and postcoloniality, as states of consciousness and social organization, under the complex and contradictory unity of neoliberalism.

To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein

Indiana Journal of Global Legal Studies

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Faculty Scholarship

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Examining The Legality Of The Guantánamo Bay Detention Center According To International Humanitarian Law And International Human Rights Law, Sydney T. Winchester

Honors Undergraduate Theses

The purpose of this research paper is to examine how international humanitarian law (IHL) and international human rights law (IHRL) are applied to the Guantánamo Bay detention center. This paper was completed through the research of international treaties, court cases, and secondary sources that thoroughly discussed issues pertaining to Guantánamo and international law.

This paper first examines the differences between the two laws by looking at the particular roles each is meant to play in the subject of international law, as well as how the two have been applied thus far to the situation at Guantánamo. Second, the paper discusses …

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

Obama’S National Security Exceptionalism, Sudha Setty

Faculty Scholarship

This Article discusses how continued national security exceptionalism engenders a view of the United States as considering itself to be above international obligations to investigate and prosecute torturers and war criminals, and the view by the global community that the United States is willing to apply one standard for itself, and another for the rest of the world. Exceptionalism not only poses real challenges in terms of law, morality, and building useful relationships with allied nations, but acts as a step backward for the creation of enforceable international norms and standards, and in efforts to restore a balance in the …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

The Problematic Applicability Of Subsidiarity To International Law, Paolo G. Carozza

Journal Articles

This article seeks to explore some of the reasons why the principle of subsidiarity, although applicable in some sectors of international law and particularly in the field of international human rights law, has difficulty in serving as a general principle of public international law more broadly. The obstacles to advancing a more robust understanding of subsidiarity's place in the current structure of global norms and institutions include: the normative and institutional fragmentation of international law; the continuing centrality of state sovereignty in the international legal system; and the endemic weaknesses and incapacity of states and sub-state communities with respect to …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

The Human Right To Water: A False Promise?, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

No abstract provided.

Dignity Rights: A Response To Peggy Cooper Davis's Little Citizens And Their Families, Jane M. Spinak

Faculty Scholarship

Professor Spinak responds to Professor Davis’ comment by considering how the concept of human dignity can be used to reassert human rights – of individual members of the family and the family as an entity – that have been diminished, if not destroyed, by poverty and inequality.

Securing Child Rights In Time Of Conflict, Diane Marie Amann

Scholarly Works

Each term in the title of this essay seems simple, yet provides much food for analytical thought. The essay thus explores: what is “conflict,” and whether there is a “time” when it is not present; who is a “child”; whether and to what extent children enjoy “rights”; and, finally, how local, national, and international regimes go about “securing” those rights. The essay – based on a talk given at the 2015 International Law Weekend in New York – concludes with a glance at a new potential avenue for child security: the Sustainable Development Goals which the U.N. General Assembly adopted …

Justice Brennan And The Foundations Of Human Rights Federalism, James A. Gardner

Journal Articles

In a well-known and widely cited 1977 law review article, Justice William J. Brennan called on state courts to “step into the breach” and use their authority as independent interpreters of state constitutions to continue on the state level the expansion of individual liberties begun on the national level by the Warren Court. Justice Brennan was right about the importance of independent state constitutional law, but he was wrong about the reason. The benefits of independent state constitutional law have little to do with expanding human rights and everything to do with federalism. The confusion is understandable; both individual rights …

Transformations In Statehood, The Investor- State Regime, And The New Constitutionalism, A. Claire Cutler

Indiana Journal of Global Legal Studies

This paper examines the changing boundaries of statehood resulting from transformations in the nature and operation of public and private authority over local and global politico-legal orders. Transformations in the political purposes of states are being driven by powerful elites who advance a new form of constitutional governance. New constitutionalism, as evidenced by the investor-state regime, subordinates the interests, purposes, and rights of national citizens to those of foreign, transnational politico-legal, and economic elites. This regime is a highly privatized order that is expanding in influence, both in terms of the commercial activities under its remit, and in terms of …