Human Rights Law Commons^™

Communications Theory And World Public Order: The Anthropomorphic, Jurisprudential Foundations Of International Human Rights, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This Article seeks to integrate different strains of knowledge and enlightenment from contradictory and often contentious jurisprudential perspectives. Our approach is to use elements of modern jurisprudence as tools and markers for a more adequate description and intellectual justification of the foundations of modern human rights law. This focus integrates existing literature that surveys law-making outside the context of the State, including the law of non-State groups, such as Jewish Law and Gypsy Law. It also examines the relevance of communications theory to law generated (in a functional sense) by individual interaction on a face-to-face basis (which Professor Harold Lasswell …

Babes With Arms: International Law And Child Soldiers, Timothy Webster

Faculty Publications

This article examines advances in preventing children from participating in armed conflict. It references international human rights treaties, UN Security Council resolutions and jurisprudence from international courts to chart the course by which recruiting child soldiers became an international crime. At the same time, it calls on UN bodies – and the states that comprise them – to implement some of the many resolutions and veiled threats leveled at various groups and militias that use child soldiers.

Indigenous Law And Its Contribution To Global Pluralism, James Anaya

Publications

No abstract provided.

A Theory Of Expressive International Law, Alex Geisinger, Michael A. Stein

Vanderbilt Law Review

What is the "pull of international society" and how does it influence the willingness of States to enter into or comply with international law? Since Grotius first identified the concept that States seek esteem from the broader global community, its parameters have proven illusive. Nonetheless, the notion remains central to discussions of why States comply with international agreements.

Understanding the reputational mechanism that impels State compliance is especially important to human rights treaties. Unlike other regimes, States that ratify and abide by the terms of these instruments receive neither reciprocal nor immediate benefits.

Consequently, the desire for international esteem is …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

Scholarly Works

In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

Publications

No abstract provided.

The U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish

Journal Articles

On December 13, 2006, the United Nations General Assembly unanimously adopted the Convention on the Rights of Persons with Disabilities. The Convention is historic and path-breaking on several levels, both in protection terms for the world's 650 million persons with disabilities who may now draw upon its provisions in defense of their internationally-protected rights, and in relation to the unprecedented level of civil society input and engagement in the negotiation process. This sustained and constructive engagement has given rise to a dynamic process of dialogue, cooperation, and mutual trust that will fuel monitoring and implementation work, at national and international …

Standard Setting In Human Rights: Critique And Prognosis, Makau Wa Mutua

Journal Articles

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell

Faculty Scholarship

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question …

The Limits Of International Human Rights Law And The Role Of Food Sovereignty In Protecting People From Further Trade Liberalization Under The Doha Round Negotiations, Wenonah Hauter

Vanderbilt Journal of Transnational Law

International free trade agreements under the auspices of the World Trade Organization (WTO) seriously undermine the international human right to adequate food. Conceivably, those deprived should be able to seek redress under Article 11 of the International. Covenant on Economic, Social, and Cultural Rights (ICESCR), which spells out the right to adequate food. Unfortunately, while the concept of the right to adequate food has developed substantially since its inception, its implementation has been slow. It is not a well-developed tool for individuals or the groups representing them to redress harms that will likely result from the current Doha Round negotiations …

A Domestic Right Of Return?: Race, Rights, And Residency In New Orleans In The Aftermath Of Hurricane Katrina, Lolita Buckner Inniss

Publications

This article begins with a critical account of what occurred in the aftermath of Hurricane Katrina. This critique serves as the backdrop for a discussion of whether there are international laws or norms that give poor, black Katrina victims the right to return to and resettle in New Orleans. In framing this discussion, this article first briefly explores some of the housing deprivations suffered by Katrina survivors that have led to widespread displacement and dispossession. The article then discusses two of the chief barriers to the return of poor blacks to New Orleans: the broad perception of a race-crime nexus …

Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

Publications

No abstract provided.

Not Just Doctrine: The True Motivation For Federal Incorporation And International Human Rights Litigation, Daniel Abebe

Faculty Scholarship

The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court's international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system.

This Article argues that the focus on doctrine masks underlying international relations …

The Twail Discourse: The Emergence Of A New Phase, Madhav Khosla

Faculty Scholarship

One of the most important discourses to have emerged in opposition to mainstream international law has been the third world approaches to international law (TWAIL). This discourse may be divided into two historical phases: TWAIL I and TWAIL II. While TWAIL I was characterised by a focus on colonization and the hegemonic use of international law by powerful nations, TWAIL II has concentrated on international institutions and the impact of globalisation. It is posited that the TWAIL discourse is in the process of entering into a new phase post 9/11. This phase can be understood as one in which TWAIL …

Compensation For Property Under The European Convention On Human Rights, Tom Allen

ExpressO

This Article investigates the nature of the right to property guaranteed under the First Protocol to the European Convention on Human Rights ('P1-1'). It argues that the European Court of Human Rights has been torn between two theories of the right to property. The first is the "integrated theory", and it holds that the right to property shares common values and purposes with other Convention rights. Hence, the interpretation of P1-1 should reflect principles developed in the interpretation of other Convention rights. It is argued that the application of the integrated theory should support a "social model" of property. The …

U.S. Asylum Law Out Of Sync With International Obligations: Real Id Act, Victor P. White

San Diego International Law Journal

Focusing on defensive asylum applications, this Comment examines whether certain provisions of REAL ID violate due process and international obligations to asylum seekers. Part I situates REAL ID within the historical context of nearly a decade of restrictive U.S. immigration law and over two decades of Executive Orders aimed at deterring a mass exodus of asylum seekers from reaching U.S. shores. Part II provides an overview of the U.S. asylum system and argues that the system produces inconsistent and sometimes arbitrary results, indicating that segments of the system do not satisfy international obligations. Part III outlines three provisions of REAL …

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

The Iraqi High Criminal Court: Controversy And Contributions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Iraqi High Criminal Court established to prosecute Saddam Hussein and other leading Ba’athists is one of the most visible of the current efforts to establish criminal accountability for violations of international norms. Juxtaposed against other tribunals, the High Criminal Court has provoked worldwide debate over its processes and its prospects for returning societal stability founded on respect for human rights and the rule of law to Iraq. This article explores in detail the legal basis for the formation of the High Criminal Court under the law of occupation. It addresses the relationship between the Iraqi model of prosecuting crimes …

Christiane Wilke On Global Justice Or Global Revenge? International Criminal Justice At The Crossroads By Hans Köchler. New York: Springer, 2003., Christiane Wilke

Human Rights & Human Welfare

A review of:

Global Justice or Global Revenge? International Criminal Justice at the Crossroads by Hans Köchler. New York: Springer, 2003.

Whose Law Is It Anyway? The Cultural Legitimacy Of International Human Rights In The United States, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

Between Rogues And Liberals: Towards Value Pluralism As A Theory Of Freedom Of Religion In International Law, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Reinterpreting Torture: Presidential Signing Statements And The Circumvention Of U.S. And International Law, Erin Louise Palmer

Human Rights Brief

No abstract provided.

The Limits Of Intervention—Humanitarian Or Otherwise, J. Peter Pham

Human Rights & Human Welfare

A review of:

The Dark Sides of Virtue: Reassessing International Humanitarianism by David Kennedy. Princeton: Princeton University Press, 2004. 400 pp.

and

At the Point of a Gun: Democratic Dreams and Armed Intervention by David Rieff. New York: Simon & Schuster, 2005. 288 pp.

Beyond Power Politics: International Law And Human Rights Discourse In The Post-9/11 World, J. Peter Pham

Human Rights & Human Welfare

A review of:

Imperialism, Sovereignty and the Making of International Law by Antony Anghie. Cambridge, UK: Cambridge University Press, 2005. 356 pp.

South Korea's National Security Law: A Tool Of Oppression In An Insecure World, Diane B. Kraft

Law Faculty Scholarly Articles

In September 2004, the ruling party in South Korea, along with two opposition parties, called for the abolishment of the 1948 anti-communist National Security Law. The following month, Amnesty International, a long-time critic of the law, officially called for the law's repeal. The law had been enacted in 1948 in response to threats from communist North Korea, but has long been used by the government to silence legitimate opposition in South Korea. This Comment will examine South Korea's National Security Law as viewed by its domestic supporters and critics, as well as by the international community. Part I will consider …

The Current State Of International Law, S. James Anaya

Publications

No abstract provided.

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

Finding The Winning Combination: How Blending Organ Procurement Systems Used Internationally Can Reduce The Organ Shortage, Sarah E. Statz

Vanderbilt Journal of Transnational Law

The shortage in transplantable organs worldwide not only leads to unnecessary death, but also to grave human rights abuses through illegal methods of procuring organs. The shortage leads some desperate to find an organ through any possible means, including purchasing an organ on the black market. The system for procuring organs in the United States is based on altruism, where potential donors have to opt in to the system in order for their organs to be donated. This creates issues at the time of death for medical professionals or the next of kin to decide whether their patient or loved …

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

China And The Human Right To Health: Selective Adaptation And Treaty Compliance, Pitman B. Potter

All Faculty Publications

The international community has devoted considerable energy to dialogue and exchanges with China on issues of treaty compliance in areas of trade and human rights, and while many improvements are evident in China’s legal regimes for trade and human rights, problems remain. Further, academic and policy discourses on China’s trade and human rights policy and practice are all too often conflicted by normative differences and illusions about them. The paradigm of “selective adaptation” offers a potential solution by examining compliance with international trade and human rights treaties by reference to the interplay between normative systems associated with international rule regimes …