Human Rights Law Commons^™

The Anti-Discrimination Paradox: How Federal Civil Rights Laws Afford Broader Protection From Discrimination Than The Constitutional Provisions That Authorize Them, Henry Rose

Public Interest Law Reporter

No abstract provided.

Banning Metal Mining In Guatemala, Randall S. Abate, Raquel Aldana

Journal Publications

Metal mining is unsustainable for Guatemala and its harms insurmountable for its people. Guatemalans who oppose metal mining have been fighting for decades domestically and internationally against the environmental degradation and other human rights abuses from metal mining activities in the country with little to show for their efforts. The State is too weak and corrupt to offer much hope for reform. Guatemala requires extensive governance reforms to become the type of strong democracy capable of reaping the potential benefits of metal mining in its territory. This is a long-term project. Most Guatemalans opposed to metal mining already know this, …

The Michigan Guidelines On Risk For Reasons Of Political Opinion

Michigan Journal of International Law

The Convention relating to the Status of Refugees (“Convention”) recognizes as refugees those who, owing to a well-founded fear of being persecuted on the basis of inter alia “political opinion,” are unable or unwilling to avail themselves of the protection of their home country

Politics By Other Means: The Battle Over The Classification Of Asymmetrical Conflicts, Yahli Shereshevsky

Vanderbilt Journal of Transnational Law

Transnational armed conflicts between states and non-state armed groups have emerged as a defining characteristic of twenty-first century warfare. Humanitarian actors tend to classify such conflicts (e.g., between the United States and ISIL) as non-international armed conflicts rather than international armed conflict. This classification is subject to considerable debate; yet both sides present their views as the inevitable result of the interpretation of the relevant International Humanitarian Law (IHL) treaty articles.

This Article demonstrates that the classification of transnational armed conflicts as non-international armed conflicts does not merely concern the application of the relevant laws, but represents a fundamental shift …

"Measuring" The Erosion Of Academic Freedom As An International Human Right, Klaus D. Beiter, Terence Karran, Kwadwo Appiagyei-Atua

Vanderbilt Journal of Transnational Law

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries' constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but "politically" binding, and which concretizes international human rights requirements in respect …

Rationed Justice, Jennifer M. Smith

Journal Publications

In the United States, "equal justice under law" is at the very forefront of our American justice system. "Equal justice" is meant to guarantee equal access to the justice system. "Equal access to the judicial process is the sin qua non of a just society." Many Americans, however, do not have any access to the justice system, never mind that of equal access. "Equal justice" has not reached the nation's indigent, or even many of our moderate-income citizens.

The Color Of Pain: Blacks And The U.S. Health Care System--Can The Affordable Care Act Help To Heal A History Of Injustice?, Part Ii, Jennifer M. Smith

Journal Publications

The state of Americans' health care has been troubling, especially before health care reform.The Affordable Care Act (ACA) is often touted as universal health care, and the initial intention was for the U.S. to have universal health care. However, with all of the compromises involved in its passage, the ACA resulted in comprehensive health insurance reform, significantly increasing the accessibility, affordability, and quality of health care for most, but not all, Americans. The ACA is a substantial step toward universal health care-a near-universal mandate-that may soon provide coverage to all Americans, and even include undocumented immigrants. Americans can find excellent …

Ocean Iron Fertilization And Indigenous Peoples' Right To Food: Leveraging International And Domestic Law Protections To Enhance Access To Salmon In The Pacific Northwest, Randall S. Abate

Journal Publications

Ocean iron fertilization (OIF) is a new and controversial climate change mitigation strategy that seeks to increase the carbon-absorbing capacity of ocean waters by depositing significant quantities of iron dust into the marine environment to stimulate the growth of phytoplankton blooms. The photosynthetic processes of these blooms absorb carbon from the atmosphere and sequester it to the ocean floor. OIF has been criticized on several grounds. including the foreseeable and unforeseeable adverse consequences it may cause to the marine environment, as well as the daunting challenge of reconciling several potentially overlapping sources of international and domestic environmental law, which may …

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

You're Gonna Need A Bigger Boat: Alternatives To The Un Security Council For Enforcing Nuclear Disarmament And Human Rights, David A. Koplow

Georgetown Law Faculty Publications and Other Works

There is a serious problem with the Security Council. That institution endowed by the United Nations Charter with "primary responsibility for the maintenance of international peace and security" -- has stood at the apex of the global political, diplomatic, and legal structure for seventy years, responding (more or less) to the full panoply of incessant dangers and provocations. The Charter could not have been crafted or sustained without it, and the Security Council has, at least, assisted in preserving a measure of fundamental world order-in particular, it has helped avoid the cataclysm of a World War III.

But a central …

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 …

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 …

Myths Meet Reality: How We Are Not Fighting Trafficking Or Supporting Trafficking Survivors, Denise Brennan

NYLS Law Review

No abstract provided.

Innovations In The Fight Against Human Trafficking: Advocates’ Perspectives And Proposals, Florrie Burke

NYLS Law Review

No abstract provided.

Innovation At The Front Lines, Pamela K. Chen

NYLS Law Review

No abstract provided.

An Organizing Approach To Human Trafficking In Domestic Work, Tiffany Williams, Leah Obias

NYLS Law Review

No abstract provided.

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 …

Exposing The Gendered Myth Of Post Conflict Transition: The Transformative Power Of Economic And Social Rights, Madeleine Rees, Christine M. Chinkin

Articles

Post conflict transition has become an industry, with a plethora of states, NGOs, experts, institutes, academics and U.N. bodies, all seeking to find the right formula to effect real and sustainable peace where previously there has been none. It is valuable and important, nevertheless, to note that "more than [fifty] percent of peace agreements fail within the first five years of signature". The evidence is clear: transitions are not working.

In this essay we seek to explain and deconstruct some of the terminology applied to post conflict situations by briefly looking at conceptss of "gender equality" participation, political economy, neo-liberalism, …

Opinion 2/13 Of The Court (C.J.E.U.), Daniel Halberstam

Articles

Opinion 2/13 of the Court of Justice of the European Union (CJEU) declared the draft agreement on European Union accession to the European Convention on Human Rights (ECHR) incompatible with the Treaty on European Union. The Opinion comes toward the end of a long and gradual process of incorporating human and fundamental rights principles into the legal system of the European Community and its successor, the European Union. Opinion 2/13 sends the Commission back to the drawing board on what has long been seen as the capstone of that process—EU accession to the Strasbourg human rights regime as an external …

Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate …

Creative Capitalism And Human Trafficking: A Business Approach To Eliminate Forced Labor And Human Trafficking From Global Supply Chains, Dana Raigrodski

Articles

A great amount of revenue generated by businesses in the global economy can be linked to the trafficking and enslavement of human beings. Yet, the current discourse on human trafficking fails to recognize the magnitude of benefit consumers, businesses, and economies gain from the work of forced and trafficked labor. Moreover, the limited efforts that seek to address this situation have focused on ways to encourage businesses to voluntarily adopt more socially responsible practices. These measures have had only limited success, and are generally believed to be in tension with the for-profit purposes of businesses.

Hence, the task of convincing …

Of Human Dignities, Mark L. Movsesian

Faculty Publications

(Excerpt)

Dignitatis Humanae: “Of Human Dignity.” The Second Vatican Council’s 1965 declaration on religious liberty must have seemed a triumph—an exclamation mark signaling the success of a decades-long project, begun during the Second World War, to restore human rights to the center of Catholic social teaching. In wartime addresses, Pope Pius XII had called for recognition of human rights, based in human dignity, as the foundation for a stable peace. In 1963, Pope John XXIII had made universal human rights, including religious liberty, part of the Magisterium. The project had had effects outside the Church as well. In 1948, …

The Thirteenth Amendment, Disparate Impact, And Empathy Deficits, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Advocacy At The Leading Edge Of Social Change: The Importance Of Front Line Innovators, Frank W. Munger

Articles & Chapters

No abstract provided.

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

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 …

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

The Transformative Influence Of International Law And Practice On The Death Penalty In The United States, Richard Wilson

Contributions to Books

No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of …

Finding Safe Harbor: Eliminating The Gap In Colorado's Human Trafficking Laws, Jessica A. Pingleton

University of Colorado Law Review

In March 2014, the Colorado Court of Appeals acquitted Dallas Cardenas of all human trafficking charges. The court determined that under the 2014 version of Colorado's human trafficking statute, a defendant who sold the sexual services of a minor, as opposed to selling a minor for sex, did not commit the crime of human trafficking. Following the Cardenas decision, the state legislature passed House Bill 1273, which broadened the language of the statute and eliminated all possible affirmative defenses, including minor consent. Under the new law, a defendant can no longer argue that a minor consented to commercial sex. However, …