Human Rights Law Commons^™

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

Economic Migration Gone Wrong: Trafficking In Persons Through The Lens Of Gender, Labor, And Globalization, Dana Raigrodski

Articles

This Article argues for an economic analysis of human trafficking which primarily looks at globalization, trade liberalization, and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.

Part I briefly examines the prevailing criminal law enforcement framework regarding human trafficking—both at the international level and in the United States—which stems out of viewing human trafficking as primarily a threat to global security and an underground industry of transnational criminal enterprises. It argues that while criminalization no doubt helped bring much needed attention (and resources) to human trafficking, the narrow criminal law …

Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry

Articles

This article explores the evolution of business and human rights (BHR) from a lawyer’s perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes …

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

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 took 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 asked the present authors to prepare a “White Paper” on possible options for a treaty …

Arendt On The Crime Of Crimes, David Luban

Georgetown Law Faculty Publications and Other Works

Genocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her …

Mapping The Interface Between Human Rights And Intellectual Property, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

The Importance Of The Right To Food For Achieving Global Health, Emilie K. Aguirre

Faculty Scholarship

The Framework Convention on Global Health (FCGH) represents a significant opportunity to realize the right to health globally. However, in order to succeed the FCGH must be carefully considered: it must take a new evidence-based approach that departs meaningfully from past shortcomings in realizing the right to health. Central to this approach is recognizing, formally incorporating, and operationalizing the right to adequate food. This right should be correctly interpreted as a right to a standard of nutritional quality and not as a right to a minimum number of calories. Because nutrition is critical to the achievement and maintenance of good …

Standing For Human Rights Abroad, Evan J. Criddle

Faculty Publications

When may states impose coercive measures such as asset freezes, trade embargos, and investment restrictions to protect the human rights of foreign nationals abroad? Drawing inspiration from Hugo Grotius’s guardianship account of humanitarian intervention, this Article offers a new theory of states’ standing to enforce human rights abroad: under some circumstances, international law authorizes states to impose countermeasures as fiduciary representatives, asserting the human rights of oppressed foreign peoples for the benefit of those peoples. The fiduciary theory explains why all states may use countermeasures to vindicate the human rights of foreign nationals abroad despite the fact that they do …

'Love Is Just A Four-Letter Word': Sexuality, International Human Rights, And Therapeutic Jurisprudence, Michael L. Perlin, Alison Lynch

Articles & Chapters

One of the most controversial social policy issues that remains dramatically underdiscussed in scholarly literature is the sexual autonomy of persons with psychosocial and intellectual disabilities, especially those who are institutionalized. This population – always marginalized and stigmatized – has traditionally faced a double set of conflicting prejudices: on one hand, people with disabilities are infantilized (as not being capable of having the same range of sexual desires, needs and expectations as persons without disabilities), and on the other, this population is demonized (as being hypersexual, unable to control base or primitive urges). Although attitudes about the abilities and capabilities …

You Might Have Drugs At Your Command: Reconsidering The Forced Drugging Of Incompetent Pre-Trial Detainnes From The Perspectives Of International Human Rights And Income Inequality, Michael L. Perlin, Meredith Schriver

Articles & Chapters

Ever since the Supreme Court's 2003 decision in Sell v. United States, 539 U.S. 166 (2003), there has been a cottage industry of commentary on the question of whether the state can medicate an incompetent defendant for the purpose of making him or her competent to stand trial. Moreover, there have been multiple cases interpreting Sell broadly and narrowly, both in the context of medication issues and in the context of other treatments. Because of the vagueness of certain terminology, questions such as what a "serious" crime is, what "substantially" meant to the Court in Sell, and how the least …

Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis

Journal Articles

Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious …

Scotland: Delivering A Right To Housing, Fiona King

Journal of Law and Social Policy

Discusses Scotland’s progressive homelessness legislation and the mechanisms through which this right to housing has been achieved. Also considers the substantial issues stemming from a lack of central government investment and the supply of social homes across Scotland to meet the legal commitment and the challenges for Scotland to continue to deliver on the right to housing.

Community Campaigns For The Right To Housing: Lessons From The R2h Coalition Of Ontario, Yutaka Dirks

Journal of Law and Social Policy

This paper describes the history of the Right to Housing (R2H) Coalition of Ontario and the role of the Advocacy Centre for Tenants Ontario (ACTO) within the Coalition. The R2H Coalition provided support to the applicants in the Right to Housing Charter Challenge. The Coalition also engaged in a variety of educational and community organizing activities in support of the right to housing and the creation of a federally funded affordable housing strategy. This paper, based on the author’s personal experiences within the R2H Coalition, examines how the adoption of community organizing principles could strengthen campaigns for systemic social change, …

The Right To Housing In France: Still A Long Way To Go From Intention To Implementation, Claire Lévy-Vroelant

Journal of Law and Social Policy

The goal of this essay is to examine the implementation of housing rights in France. Legislation adopted in March 2007 opened the possibility of an enforceable right, which can be asserted before a court. However, it also created new inequalities before the law. Indeed, the conditions required to access that right exclude people who do not have permanent residence or a valid temporary resident permit. The implementation of this right is also limited due to the lack of available housing, especially at Ile-de-France, and to competition between people with priority entitlements. The horrible fire at a furnished Parisian hotel in …

Do Us Proud: Poor Women Claiming Adjudicative Space At Cesr, Emily Paradis

Journal of Law and Social Policy

Claiming Our Rights was a feminist participatory action research project based at Sistering, a Toronto drop-in for women facing homelessness. At weekly meetings over the course of eighteen months, members learned about social and economic rights, gave testimony on their lived experiences, and undertook actions to claim their rights. Among other initiatives, the group—which members named FORWARD—contributed a report on women’s homelessness to the 2006 review of Canada by the United Nations Committee on Economic, Social and Cultural Rights. This paper draws upon observations of the group’s process and in-depth interviews with participants to assess this human rights education methodology. …

Fighting For The Right To Housing In Canada, Tracy Heffernan, Fay Faraday, Peter Rosenthal

Journal of Law and Social Policy

This paper examines Tanudjaja v Attorney General—the “Right to Housing” case. The authors, co-counsel on the case, discuss the context of the case, the nature of the application, and the legal underpinnings of the section 7 and 15 Canadian Charter of Rights and Freedoms claims, including positive obligations under the Charter and international law, innovative procedure taking a systemic approach to challenging oppressive legislation, and innovative supervisory orders. The authors examine the procedural and substantive implications of the provincial and federal governments’ move to strike the case, parse the Ontario Superior Court of Justice and Ontario Court of Appeal decisions …

A Road To Home: The Right To Housing In Canada And Around The World, Darcel Bullen

Journal of Law and Social Policy

Collects papers presented at the Right to Housing symposium, “A Road to Home: The Right to Housing in Canada and Around the World” held in Toronto, 24 October 2013. Contributors speak to the various interventions and strategies used to actualize housing as a fundamental human right in South Africa, France, the United States, Scotland, and Canada, ranging from litigation, to community awareness building, to protests, and to lobbying. Also speaks to the challenges of enforcement of the right to housing once that right is recognized at law.

Charter Eviction: Litigating Out Of House And Home, Margot Young

Journal of Law and Social Policy

The case of Tanudjaja v Attorney General (Canada) takes up the cause of housing rights under the Canadian Charter of Rights and Freedoms in a novel and complex way. The government actions and inactions cited as constitutional breaches and the broad remedial requests reflect the “pixelated” picture of housing concerns necessary to understanding Canada’s housing security crisis. In dismissing the challenge at a preliminary stage, the Ontario Superior and Appeal Courts risk rendering the Charter irrelevant to the deep social justice concerns that cross our country. More specifically, formulaic judicial invocation of concerns about positive rights and justiciability leave the …

Equality And Singapore’S First Constitutional Challenges To The Criminalization Of Male Homosexual Conduct, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

In 2013, i Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General and Tan Eng Hong v Attorney-General, the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of gross indecency between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court …

Complicity In Business And Human Rights, James G. Stewart

All Faculty Publications

These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law writ …

Between Protection And Punishment: The Irregular Arrival Regime In Canadian Refugee Law, Efrat Arbel

All Faculty Publications

This chapter questions the Canadian border’s reconstitution as a site of punishment for refugee claimants by examining the Designated Foreign National (DFN) regime, which permits the Canadian government to discipline foreign nationals for suspected violations of Canadian border laws by subjecting them to penalties that are formally classified as administrative, but amount to de facto punishment. These include mandatory arrest and detention, as well as compulsory reporting and ongoing document inspection. In this chapter, I examine the operation of the DFN regime in relation to other border measures, focusing specifically on the Canada-US Safe Third Country Agreement. I argue that …

Persecution: How Much Is Enough?, Hillary R. Chambers

Kentucky Law Journal

No abstract provided.

Beyond Voluntary Corporate Social Responsibility: Corporate Human Rights Obligations To Prevent Disasters And To Provide Temporary Emergency Relief, Anastasia Telesetsky

Vanderbilt Journal of Transnational Law

Much of the focus of the emerging field of International Disaster Law is on state responsibility. Yet the source of some disasters is the failure of corporations to address known risks created by a company or located on company property. This Article queries whether there are obligations for corporations to act under international human rights law to prevent disasters where corporations have control over known hazards such as tailings dams or chemical dumps. This Article concludes that corporations have a legal duty to act in order to support and protect human rights whenever there is corporate knowledge of hazards that …

Pluralism And Its Perils: Navigating The Tension Between Gay Rights And Religious Expression, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.

The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster …

Human Rights Thinking And The Laws Of War, David Luban

Georgetown Law Faculty Publications and Other Works

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”

Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is …

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

The Dangers Of Children's Rights' Discourse In The Political Arena: The Issue Of Religious Male Circumcision As A Test Case, Rhona Schuz

Cardozo Journal of Equal Rights & Social Justice

The ever increasing use of children's rights discourse in national, regional and international political institutions can perhaps be seen as a sign of the success of the United Nations Convention on the Rights of the Child ("CRC'), and of the internalization of the concept that children are independent rights holders, the ideological basis of the doctrine of children's rights. Nevertheless, there is evidence that some advocates of children's rights in the political arena are taking an over-simplistic, uni-dimensional approach to children's rights which results in misrepresentation of the true interests of children. This risk is well illustrated by the recent …

Gendering The Compliance Agenda: Feminism, Human Rights And Violence Against Women, Megan Louise Pearce

Cardozo Journal of Equal Rights & Social Justice

The article argues that while the due diligence standard in international human rights law has been a significant step forward in addressing violence against women, it has not yet delivered real change. The gap between legal promise and reality persists, and the article contends that addressing this gap requires integrating feminist insights into compliance theories. By applying feminist critiques to these theories, the article seeks to illuminate why the due diligence standard has been ineffective in eliminating violence against women and to highlight areas for future research.

Ending The Isolation: An Introduction To The Special Volume On Human Rights And Solitary Confinement, Debra Parkes

All Faculty Publications

Prisoners and their advocates in Canada and around the world have been calling attention to the harms and impact of solitary confinement for some time. What is significant about the current moment is that these calls seem to be achieving some traction, even as the use of solitary confinement grows across jurisdictions. This short piece introduces a special volume of the Canadian Journal of Human Rights which collects the writing of advocates and scholars from a range of disciplines (criminology, law, philosophy) who bring a variety of perspectives and methodologies to bear on the opaque correctional systems that hold human …

Human Trafficking And Labor Migration: The Dichotomous Law And Complex Realities Of Filipina Entertainers In South Korea And Suggestions For Integrated And Contextualized Legal Responses, Yoon J. Shin

Vanderbilt Journal of Transnational Law

This Article examines the complex legal situation of Filipina "entertainers" in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The Article investigates how the dichotomous law fails to recognize these entertainers as either trafficking victims or as migrant workers. The law therefore denies proper legal rights and remedies for the serious rights violations they suffer in the destination state. This research demonstrates that these migrants have diverse needs, aspirations, and transnational experiences that embrace both victimhood and agency. It illuminates the fundamental problems of the current global anti-trafficking regime, …