Human Rights Law Commons^™

Ending Silence: Demanding Safety From Sexual Assault - I Reported, Brenda V. Smith, Caleb J. Bess, Rebecca I. Heinsen, Jaime V. Yarussi, Michael J. Auger

Research Reports & White Papers

Ending Silence: Demanding Safety from Sexual Assault & Youth Speaking Up about Sexual Abuse in Custody are a series of graphic novels for adult and juvenile inmates in custodial settings. These graphic novels are intended to educate inmates about how to identify and address incidents of sexual assault. The plot lines in these graphic novels dramatize situations we know occur in custodial settings. The use of graphic novels in community education projects is well established. By presenting information through an illustrative medium, these novels aim to disseminate information about the sexual abuse reporting process to inmates at all literacy levels. …

Introduction: Gender In Refugee Law: From The Margins To The Centre, Efrat Arbel, Catherine Dauvergne, Jenni Millbank

All Faculty Publications

Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress towards appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law. Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including …

An Expanding Human Rights Corpus: Sexual Minority Rights As International Human Rights, Xavier B. Lutchmie Persad

Cardozo Journal of Equal Rights & Social Justice

The article argues that sexual minorities are entitled to equal rights under principles of human dignity, equality, and non-discrimination. While international human rights frameworks like the Universal Declaration of Human Rights (UDHR) and regional systems, particularly the European Union’s Charter of Fundamental Rights, provide some protections, sexual minorities remain vulnerable due to the lack of explicit inclusion in most treaties. The European Court of Human Rights (ECtHR) and the UN Human Rights Committee (HRC) have advanced protections through jurisprudence, but significant gaps persist, especially for transgender and intersex individuals. The article advocates for a specialized treaty to address these disparities …

What Is In A Percentage?: Calculation As The Poetic Translation Of Human Rights, Andrea Ballestero

Indiana Journal of Global Legal Studies

Increasingly, the efficacy of human rights, international norms, and commercial standards is deposited in numbers as measures of social and financial value. Taking the form of indicators, goals, and targets, these numbers are active participants in the everyday practices through which the law is constituted around the world. This paper examines the normative ability of percentages as numeric devices that transform measures of value across legal domains. The paper draws on two examples: a) the generation of indicators by NGOs promoting the Human Right to Water, and b) the technical work of regulators attempting to regulate water prices to follow …

A Review Of "Values In Translation: Human Rights And The Culture Of The World Bank," By Galit A. Sarfaty, Amanda Craig

Indiana Journal of Global Legal Studies

No abstract provided.

Health And Human Rights, Jonathan Todres

Faculty Publications By Year

No abstract provided.

Samsāra To Nirvāna: What Would It Mean To Actually Free Tibet?, Leah Marie Shellberg

San Diego International Law Journal

For Mahayana Buddhists, samsara literally means “wandering-on,” but in theory, it refers to the cyclical nature of birth and re-birth characterized by suffering that a Buddhist must break out of in order to achieve nirvana, a state free of suffering. Since the occupation and incorporation of Tibet into the People’s Republic of China (“China”) in the late 1940s and early 1950s, the Tibetan people have experienced a far more intense form of metaphorical samsara at the hands of the Chinese administration. The term “genocide,” coined by Raphael Lemkin in the wake of the Holocaust, combines the ancient Greek word “genos” …

Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt

San Diego International Law Journal

In a 2005 press release by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), Chief Prosecutor Carla Del Ponte stated “[t]he debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicised . . . I am much more concerned about the victims of war crimes and their families, and I appeal to you to make the victim aspect of any legal process a priority.” Despite this stated dedication to war crimes victims and their families, the ICTY’s Trial Chamber (“Chamber”) recently acquitted two state security officials …

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

New Trends In Latin American Constitutionalism: An Overview, Santiago Legarre

Notre Dame Journal of International & Comparative Law

In this introduction to the issue on New Trends in Latin American Constitutionalism, Santiago Legarre offers his remarks at the opening of the conference on New Trends in Latin American Constitutionalism held at Notre Dame Law School in 2013. After briefly recounting the origins of the conference, Legarre summarizes some of the key modern challenges in Latin America and the role of constitutionalism in addressing these challenges. Legarre pays particular attention to the rapid growth of income inequality in the region. He ultimately concludes that some of the major challenges to the region are rooted in a lack of consensus …

Letter From The Conference Organizer, Pier Pigozzi

Notre Dame Journal of International & Comparative Law

Pier Pigozzi writes to introduce the Spring 2013 conference, "New Trends in Latin American Constitutionalism."

Illusion Of School Choice Leaves Chicago Pupils With No Choice, Elise Robie

Public Interest Law Reporter

School choice ostensibly empowers parents and students to have control over their education. However, despite the facade of school choice in Illinois, in reality parents and students effectively have little to no school choice, especially in the City of Chicago. The presence of charter schools overpowers traditional public schools, and without a solid voucher system parents do not have valid control over their children's education. Parental involvement in a child's education plays a crucial role in a child's success, and lack of genuine school choice stymies parental involvement and control.

Access To Justice: Ensuring Meaningful Access To Counsel In Civil Cases, Human Rights Clinic

Human Rights Institute

In order to meet its human rights obligations, the federal government must work toward the establishment of the right to counsel for indigent litigants in civil cases, especially where basic human needs are at stake. Direct steps the federal government should take include: supporting research into the impact of providing counsel in civil cases; fully funding the Legal Services Corporation and lifting restrictions that prevent legal services lawyers from providing necessary services; intensifying the Acc,ess to Justice Initiative's activities with respect to civil legal services and providing it with the necessary leadership and resources; and filing supportive amicus briefs when …

Illusion Of Justice: Human Rights Abuses In Us Terrorism Prosecutions, Human Rights Watch, Human Rights Institute

Human Rights Institute

Terrorism entails horrifying acts, often resulting in terrible losses of human life. Governments have a duty under international human rights law to take reasonable measures to protect people within their jurisdictions from acts of violence. When crimes are committed, governments also have a duty to carry out impartial investigations, to identify those responsible, and to prosecute suspects before independent courts. These obligations require ensuring fairness and due process in investigations and prosecutions, as well as humane treatment of those in custody.

"The More Things Change ...": The World Bank, Tata And Enduring Abuses On India's Tea Plantation, Human Rights Institute

Human Rights Institute

Tea plantations in India employ more than a million permanent workers, and perhaps twice as many seasonal laborers. This makes the industry the largest private-sector employer in the country. But workers depend on plantations for more than just employment: millions of workers and their families live on the plantations, and rely on them for basic services, including food supplies, health care and education. Indian law has required plantation owners to provide these since the adoption of the Plantations Labour Act (PLA), soon after independence.

The Tata Group, one of India’s most powerful corporate entities, is also one of the most …

The Tower Of Babel: Human Rights And The Paradox Of Language, Moria Paz

Studio for Law and Culture

Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant …

Trading Away Human Rights, Kaitlin Y. Cordes, Olivier De Schutter

Columbia Center on Sustainable Investment Staff Publications

Trade negotiators in Singapore recently failed to finalize a deal on the long-awaited Trans-Pacific Partnership; they will soon have another chance to complete what would be the world’s largest regional free-trade agreement. But, given serious concerns that the TPP will fail to consider important human-rights implications, that is no cause for celebration.

Freedom Of Conscience As Religious And Moral Freedom, Michael J. Perry

Faculty Articles

In another essay being published contemporaneously with this one, I have explained that as the concept "human right" is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right-for example, as a treaty-based right-is, in part, that conduct that violates the right violates the imperative, articulated in Article i of the Universal Declaration, to "act towards all human beings in a spirit of brotherhood." Each of the human rights …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.

The Law Of War And The Responsibility To Protect Civilians: A Reinterpretation, Thomas H. Lee

Faculty Scholarship

Two seemingly unrelated crises implicating the law of war and the responsibility to protect civilians have arisen in recent years. In 2013, the United States considered military intervention without United Nations (“U.N.”) Security Council preapproval in Syria after discovering that the government had exterminated its own people with chemical agents. In 2014, Russia sent troops into Crimea, a part of Ukraine, to protect ethnic Russians that Russia claimed were in danger after a political coup in the country. In both cases, the military acts contemplated or undertaken were of dubious legality, albeit under different rubrics. This Article aims to show …

Indigenous Peoples And The Jurisgenerative Moment In Human Rights, Kristen A. Carpenter, Angela R. Riley

Publications

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples' claims against states and even influences indigenous groups' internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global "human rights culture" to articulate rights ranging from …

Using Force Against The "Weapons Of The Weak": Examining A Chemical-Biological Weapons Usage Criterion For Unilateral Humanitarian Intervention Under The Responsibility To Protect, Andrew M. Bell

Cardozo Journal of International and Comparative Law

The civil war in Syria has demonstrated the international community's inability to act to protect civilians caught in mass atrocities during cases of U.N. Security Council deadlock, with permanent member vetoes presenting a significant legal obstacle to international humanitarian intervention.

The Responsibility to Protect (R2P) construct, created in response to the NATO intervention in Kosovo, was originally designed to overcome such Security Council paralysis by transforming the debate from the "right" of states to intervene to the "responsibility" of the entire international community to protect civilians as well as open the door to legitimate unilateral humanitarian intervention in cases of …

From Villa Grimaldi To Guantánamo Bay: Remedying Human Rights Abuses In Chile And The United States, Nadia Shamsi

Cardozo Journal of International and Comparative Law

The article examines the effectiveness of transitional justice mechanisms in addressing human rights abuses, using Chile's experience under Augusto Pinochet as a model. It critiques the U.S. for failing to adopt similar approaches to accountability, particularly in addressing abuses at Guantanamo Bay and other detention centers. The analysis highlights the importance of combining truth commissions, criminal prosecutions, and reparations to achieve justice and promote democratic transition. It argues that the U.S. must align its domestic practices with the international human rights standards it promotes.

Liberal Democracy And The Right To Religious Freedom, Aldir Guedes Soriano

BYU Law Review

Foremost, this paper examines the current situation of the rights to religious freedom and democracy around the world, which deserve attention and concern. Civil liberties are currently in crossfire. This article examines the foundations of the right to religious freedom. Depending on the philosophical foundations, there are two different rationales for the right to religious freedom: liberal and anti-liberal. According to the liberal tradition, the best reason to protect religious freedom rests upon the autonomy of the individual conscience. It is clear that a constitutional democracy does not allow the establishment of any religion by the government, using either executive …

The Postcolonial Problem For Global Gay Rights, Stewart Chang

Scholarly Works

As the United States and Europe have progressed to the issue of same-sex marriage, countries that are still working through antecedent issues, such as the decriminalization of anti-sodomy laws, are regarded by international gay rights advocates as lagging behind the times. This often leads to pressures from the Western-dominated international community for reform. Through this Article, Professor Stewart Chang contributes to the ongoing scholarly debate between international human rights activists who desire to advance gay rights by utilizing the same rights-based models that prevail in the United States and Europe and critics of this approach who deem the universal imposition …

Must Israel Accept Syrian Refugees?, Michael Kagan

Scholarly Works

In this article, Professor Michael Kagan discusses Israel's policy to refuse asylum to "subjects of enemy or hostile states," in the context of a 2004 asylum case filed by a Syrian girl. A decade later, Israel has not accepted a single Syrian refugee. Professor Kagan examines the moral and legal responsibilities of Israel and how they conflict with its current policy.

Using International Law In Somalia’S Post- Conflict Reconstruction, Chiara Giorgetti

Law Faculty Publications

For the first time since 1991, Somalia has an internationally- recognized government. Established in August 2012, the Somali Federal Government (SFG) has been officially recognized by many nations and international organizations. The process of bringing Somalia fully back into the international community, however, remains long and complex. This Article argues that, in order to be successful, Somalia’s reconstruction must include a robust international law component. By mandating frameworks for action and establishing best practices, international law should guide and strengthen reconstruction efforts.

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …

Why The United States Cannot Agree To Disagree On Blasphemy Laws, Evelyn Aswad, Rashad Hussain, M. Suleman

Faculty Articles

At the Boston University International Law Journal's symposium "Realigning Western Policy and International Law after the Arab Spring," held on March 25, 2013, Professor Aswad gave the keynote address, where she described the extensive U.S. diplomatic efforts to promote the broadest possible protections for freedoms of expression and religion, even when it comes to speech that is considered blasphemous. A symposium participant asked why the United States cannot just agree to disagree with Muslim-majority countries on the treatment of blasphemy given the religious sensibilities in those countries and the number of other pressing equities the United States has pending with …