Human Rights Law Commons^™

The Sum Of The Parts, Therese O'Donnell

Human Rights & Human Welfare

From one perspective the Middle East lends itself as a macabre mise-en-scene where the triumph of realpolitik over the legitimacies of international law can be continually re-staged. To be sure, at least two sovereign states seem to go their own way, even in the face of rampant and valid international criticism—the end of a construction freeze on illegal settlements and failures to condemn clearly illustrate this point. However, two can play at that game. The US veto of the October 2003 draft Security Council resolution declaring as illegal Israel’s construction of its security fence, beyond the 1949 Green Line and …

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

The Global Spread Of European Style International Courts, Karen J. Alter

Faculty Working Papers

Europe created the model of embedded international courts (IC), where domestic judges work with international judges to interpret and apply international legal rules that are also part of national legal orders. This model has now diffused around the world. This article documents the spread of European-style ICs: there are now eleven operational copies of the European Court of Justice (ECJ), three copies of the European Court of Human Rights, and a handful of additional ICs that use Europe's embedded approach to international law. After documenting the spread of European-style ICs, the article then explains how two regions chose European style …

Is International Law Really Law? Theorizing The Multi-Dimensionality Of Law, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

A Realist Defense Of The Alien Tort Statute, Robert Knowles

Law Faculty Publications

This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not …

The Regulatory Turn In International Law, Jacob Katz Cogan

Faculty Articles and Other Publications

In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this "humanization of international law" that by the 1990s human rights had become "part of... international political and legal culture." This Article argues that there has been an unnoticed contemporary counter trend -- the "regulatory turn in international law." Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal, that impose and enforce direct and indirect international duties upon …

Steven M. Schneebaum On The Death Penalty And Human Rights. By Sir Fred Phillips. Q.C. Kingston, Jamaica: Caribbean Law Publishing Company. 2009. 101pp., Steven M. Schneebaum

Human Rights & Human Welfare

A review of:

The Death Penalty and Human Rights. By Sir Fred Phillips. Q.C. Kingston, Jamaica: Caribbean Law Publishing Company. 2009. 101pp.

Donald W. Jackson On Prisoners Of America’S Wars: From The Early Republic To Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp., Donald W. Jackson

Human Rights & Human Welfare

A review of:

Prisoners of America’s Wars: From the Early Republic to Guantanamo. By Stephanie Carvin. New York: Columbia University Press, 2010. 336pp.

The Somali Piracy Problem: A Global Puzzle Necessitating A Global Solution, Milena Sterio

American University Law Review

Over the past few years, piracy has exploded off the coast of Somalia. The Somali pirates congregate on a mother ship and then divide into smaller groups that sail out on tiny skiffs. Using potent weapons like AK-47’s and hand-propelled grenades, the Somali pirates then attack civilian ships carrying cargo through the Gulf of Aden, toward South Africa or Asia. Once they have overtaken the victim vessel, pirates typically hijack the vessel’s cargo and crewmembers. The former is often resold to willing buyers (some of which include terrorist organizations like Al Qaeda). The latter are taken to the Somali shore …

Canadian Mining Internationally And The Un Guiding Principles For Business And Human Rights, Sara Seck

Articles, Book Chapters, & Popular Press

Between 2005 and 2011, there was much debate within Canada and at the United Nations over what role home states should play in the regulation and adjudications of human rights harms associated with transnational corporate conduct. In Canada, this debate focused upon concerns associated with global mining, and led to a series of government, opposition and multi-stakeholder reports and proposals. These culminated in 2010 with the appointment of a Corporate Social Responsibility Counsellor for the Extractive Sector and the defeat of Bill C-300, an act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries. Meanwhile, …

State Immunity And Human Rights: Heads And Walls, Hearts And Minds, Roger O'Keefe

Vanderbilt Journal of Transnational Law

This Article suggests that arguments against the availability of state immunity as a bar to civil actions alleging internationally wrongful ill-treatment abroad are not only destined to fall by and large on deaf ears but are also misdirected as a matter both of fairness and of the ultimate policy objectives of human rights advocates. It would make more sense for victims' interest groups to target the failure of allegedly responsible states to afford victims the opportunity of a remedy and the failure of victims' states of nationality to do enough to defend their nationals' interests.

Italian Judges' Point Of View On Foreign States' Immunity, Elena Sciso

Vanderbilt Journal of Transnational Law

The Article gives an account of the most recent Italian practice as regarding foreign states' immunity from the jurisdiction of the forum state. In the absence of domestic laws regulating the matter, Italian courts thus far have been directly applying international customary law, making recourse to a progressive interpretation of international rules. In the past, Italian judicial practice together with the Belgian one gave a great contribution to the consolidation of the restrictive immunity theory. In the last few years, Italian courts have lifted immunity with respect to acts of a foreign state qualified as "acta iure imperii" in civil …

Abusing The Authority Of The State: Denying Foreign Official Immunity For Egregious Human Rights Abuses, Beth Stephens

Vanderbilt Journal of Transnational Law

Government officials accused of human rights abuses often claim that they are protected by state immunity because only the state can be held responsible for acts committed by its officials. This claim to immunity is founded on two interrelated errors. First, the post-World War II human rights transformation of international law has rendered obsolete the view that a state can protect its own officials from accountability for human rights violations. Second, officials can be held individually responsible for their own actions even when international law also holds the states liable for those acts. This Article begins with an analysis of …

Promises To Keep: Diplomatic Assurances Against Torture In Us Terrorism Transfers, Human Rights Institute

Human Rights Institute

“Diplomatic assurances” are promises not to torture. They are sought when transferring a detainee from the custody of one government to another. Not surprisingly, they are sought from governments that typically torture.

This report surveys the law and practice of assurances in the US and, comparatively, in Canada and Europe. It is the culmination of a long-term engagement by Columbia’s Human Rights Clinic and its faculty to research and support advocacy on diplomatic assurances. That process has involved advocacy with Swedish NGOs, support for research by Human Rights Watch, FOIA requests with the ACLU and collaborative efforts with UN mechanisms. …

Realizing The International Human Right To Health: The Challenge Of For-Profit Health Care, Eleanor D. Kinney

West Virginia Law Review

No abstract provided.

"A Guantanamo On The Sea": The Difficulties Of Prosecuting Pirates And Terrorists, Eugene Kontorovich

Faculty Working Papers

As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight …

International Human Rights At The Close Of The Twentieth Century, Anthony D'Amato

Faculty Working Papers

Speculates as to why the human-rights revolution is increasingly likely to dominate our foreign-policy attentions in the decades to come. Ventures some predictions, of particular interest perhaps to international lawyers, about where the cause of international human rights is heading.

Human Rights As Part Of Customary International Law:A Plea For Change Of Paradigms, Anthony D'Amato

Faculty Working Papers

The question for us international lawyers is how, and how much of, public sentiment for human rights has been transformed into binding international law.

The Relation Of The Individual To The State In The Era Of Human Rights, Anthony D'Amato

Faculty Working Papers

I address the question of the relation of the individual to the state and, in so doing, invoke Hegel, the preeminent philosopher of relationships. As students of international law, we should look forward to achieving the complex synthesis implicit in Hegel's philosophy: to promote the human rights of all persons in the natural context of the unique nation in which they live. Examines a legal problem that highlights this interrelatedness: Frolova v. Union of Soviet Socialist Republics.

International Human Rights Law In Japan: The View At Thirty, Timothy Webster

Faculty Publications

Japanese courts have become increasingly open to the use of international human rights law in the past two decades. This paper examines several of the key decisions that reflect the judiciary's embrace of international law, particularly in the areas of criminal procedure and minority rights. I argue that the judiciary has eclipsed the other branches of government as the primary disseminator of human rights norms in Japan.

Hybrid Courts: Examining Hybridity Through A Post-Colonial Lens, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

Are Hate Speech Provisions Anti-Democratic?: An International Perspective , Robin Edger

American University International Law Review

No abstract provided.

Prospective Parents And The Children's Rights Convention, Carter Dillard

American University International Law Review

This Article addresses the novel question of whether states parties can successfully implement the Children’s Rights Convention by placing legal obligations on prospective parents, thereby influencing not just a child’s environment, but also the procreation of that child. First, the Article takes a unique version of the child-centered perspective, one that recognizes that as we move back in time in the direction of and even before a child’s birth, our obligations to the child grow because our actions become ever more influential. The perspective also takes into account current moral theories of parental obligation to prospective children. The Article then …

Hidetoshi Hashimoto On International Law (Sixth Edition). By Malcolm Shaw. New York: Cambridge University Press, 2008. 1542pp., Hidetoshi Hashimoto

Human Rights & Human Welfare

A review of:

International Law (Sixth Edition). By Malcolm Shaw. New York: Cambridge University Press, 2008. 1542pp.

Necessary Fictions: Indigenous Claims And The Humanity Of Rights, Peter Fitzpatrick

Human Rights & Human Welfare

To begin, not propitiously. When checking whether my title ‘Necessary Fictions’ was being used elsewhere, Google revealed that it was going to be used in a future talk, and by me. It transpired mercifully that this use was going to be quite different to the present which suggested the prospect of a new academic genre: same title, different paper; rather than the standard combination of same paper, different title. Fortuitously, that contrast gave me the leitmotiv for this talk – that things ostensibly the same can be different, and that things ostensibly different can be the same.

© Peter Fitzpatrick. …

The Global Law Of The Land, Amnon Lehavi

University of Colorado Law Review

Are we witnessing the gradual universality of national land laws, which have traditionally been considered to be the paradigm of legal idiosyncrasy by virtue of their reflection of place-specific society, culture, and politics? This Article offers an innovative analysis of the conflicting forces at work in this legal field, based on a historical, comparative, and theoretical study of the structures and strictures of domestic land laws and current cross-border phenomena that dramatically affect national land systems. The central thesis of this Article is that, irrespective of our basic normative viewpoint regarding the opening up of domestic land laws to the …

Rethinking International Women's Human Rights Through Eve Sedgwick, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Since the death of Eve Kosofsky Sedgwick, I have wanted to honor her memory, and this panel is the perfect venue. Sedgwick's foundational understandings of sexuality, gender, and identity set the stage for much of my work and that of those I admire. My own work looks at how the state regulates gender in the “public” sphere. I attempt to challenge the tensions and intersections among international and comparative notions of equality and identity. Group identity constructions vary across cultural lines and conflict with liberal notions of universalist constitutionalism and equality. My current work, Unsex CEDAW: What's Wrong with Women's …

From Kosovo To Catalonia: Separatism And Integration In Europe, Christopher J. Borgen

Faculty Publications

In July 2010 the International Court of Justice rendered its Advisory Opinion on the legality of Kosovo's declaration of independence and the Constitutional Court of Spain rendered an opinion concerning the autonomy of Catalonia. Two very different cases, from very different places, decided by very different courts. Nonetheless, they each provide insights on the issue of separatism in the midst of European integration. Does the Kosovo opinion open the door for other separatist groups? Does the process of European integration increase or undercut separatism? In addressing these questions, this article proceeds in three main parts. Part A briefly recaps the …

The Responsibility To Protect And The Decline Of Sovereignty: Free Speech Protection Under International Law, William Magnuson

Vanderbilt Journal of Transnational Law

State sovereignty has long held a revered post in international law, but it received a blow in the aftermath of World War II, when the world realized the full extent of atrocities perpetrated by the Nazis on their own citizens. In the postwar period, the idea that individuals possessed rights independent of their own states gained a foothold in world discussions, and a proliferation of human rights treaties guaranteeing fundamental rights followed. These rights were, for the most part, unenforceable, though, and in the 1990s, a number of humanitarian catastrophes (in Kosovo, Rwanda, and Somalia) galvanized the international community to …

Missed Opportunity: Congress's Attempted Response To The World's Demand For The Violence Against Women Act, Brenton T. Culpepper

Vanderbilt Journal of Transnational Law

The Supreme Court's decision in U.S. v. Morrison struck down, as a violation of the Commerce Clause, § 13,981 of the Violence Against Women Act, that provided a private right of action for victims of gender-motivated violence to assert against their abusers. However, § 13,981 should have been affirmed as implementing legislation designed to fulfill U.S. obligations under the International Covenant on Civil and Political Rights and customary international law. Recognizing § 13,981 as implementing legislation serves as a foundation for the United States to restore itself as a legitimate human rights leader capable of both appreciating its own international …