International Humanitarian Law Commons^™

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.

The Janus Moon Rising - Why 2014 Heralds United States' Detention Policy On A Collision Course...With Itself, Chris Jenks

Faculty Journal Articles and Book Chapters

2014 will serve as a test of the United States’ claims that its detention policy is consistent with the law of armed conflict (LOAC). If, as President Obama has repeatedly stated, U.S. involvement in the armed conflict in Afghanistan will end this year, then any LOAC based detention of belligerents linked solely to that conflict ends as well. That should mean the release or transfer of members of the Taliban currently detained at Guantanamo. It won’t.

Detainee Rights And State Obligations: Charting The Shoals Facing The Royal Canadian Navy, Darin Reeves

LLM Theses

This thesis examines the question of Canadian domestic, and international, rights and obligations owed to individuals detained by Ships of the Royal Canadian Navy in a selection of contemporary naval operations. The thesis discusses the underlying lawful authority for these operations as well as the international law affecting the maritime environment. Next the thesis reviews extra-territorial extension of a State's jurisdiction and the rights and international and Canadian State obligations triggered when an individual is detained together with issues arising from breaches of these rights and obligations. Legal issues found in maritime operations are then analyzed in contrast to the …

Separation Anxiety? Rethinking The Role Of Morality In International Human Rights Lawmaking, Vijay M. Padmanabhan

Vanderbilt Journal of Transnational Law

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation. Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article …

Deciding To Intervene, Anna Spain

Publications

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should …

The Judge And The Drone, Justin Deystone

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi

Articles

Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights violations—genocides, ethnic cleansings, crimes against humanity, and systemic war crimes—occur with alarming frequency. And the international response is often slow or ineffectual. The most recent development for addressing this problem is the “responsibility to protect,” an idea that has received so much attention that it now goes simply by R2P. Almost all heads of state have endorsed R2P. The U.N. Secretary General has made R2P a top priority and issued multiple reports on …

Undocumented Migrants And The Failures Of Universal Individualism, Jaya Ramji-Nogales

Vanderbilt Journal of Transnational Law

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that …

Multiple Nationality And Refugees, Jon Bauer

Vanderbilt Journal of Transnational Law

Persons with more than one nationality ("multiple nationals") who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention's approach. This Article challenges …

Restoration Of Historical Memory And Dignity For Victims Of The Armenian Genocide: A Human Rights Law Approach To Effective Reparations, Richard Wilson

Scholarly Articles in Law Reviews & Journals

This article argues that United Nations human rights principles and new developments in the Inter-American Commission on Human Rights and the European Court of Human Rights suggest a route to provide effective reparation through restoration of historical memory and dignity for victims of the Armenian Genocide.

The Rights Of Lesbian Gay Bisexual And Transgendered Peoples And International Human Rights Law, Claudia Martin, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Getting Off The Mommy Track: An International Model Law Solution To The Global Maternity Discrimination Crisis, Caraline Rickard

Vanderbilt Journal of Transnational Law

Women's roles in workplaces around the globe have been growing steadily for the past half-century. Yet, in everything from pay to advancement, workplace gender discrimination persists, much of it based on women's unique role as child bearers. Of the countless domestic and international efforts to address maternity discrimination, none has been completely successful. Drawing from the history of maternity leave legislation and the examples of domestic and international regimes, this Note proposes a unique solution to an international problem: an international model law. The Global Maternity Protection Act model law proposed here provides global protection for a global problem and …

Legal Phantoms In Cyberspace: The Problematic Status Of Information As A Weapon And A Target Under International Humanitarian Law, Jack M. Beard

Vanderbilt Journal of Transnational Law

Reports of state-sponsored harmful cyber intrusions abound. The prevailing view among academics holds that if the effects or consequences of such intrusions are sufficiently damaging, international humanitarian law (IHL) should generally govern them--and recourse to armed force may also be justified against states responsible for these actions under the jus ad bellum. This Article argues, however, that there are serious problems and perils in relying on analogies with physical armed force to extend these legal regimes to most events in cyberspace. Armed conflict models applied to the use of information as a weapon and a target are instead likely to …

Managing The "Republic Of Ngos": Accountability And Legitimation Problems Facing The Un Cluster System, J. Benton Heath

Vanderbilt Journal of Transnational Law

This Article critically assesses the crucial but troubled system for the coordination of international humanitarian assistance--the UN "cluster approach." Regardless of whether the cluster approach actually helps in disaster response, it exercises substantial power over affected populations by assigning competences and leadership roles. The built-in mechanisms for controlling this power are unworkable because they ultimately fail to resolve the tension between humanitarian organizations' autonomy and the need for coordination. This Article identifies the emergence of an alternative model of accountability, based on mutual monitoring and peer review. Drawing on theories of network governance and experimentalism, this Article teases out the …

Demanding Accountability Where Accountability Is Due: A Functional Necessity Approach To Diplomatic Immunity Under The Vienna Convention, Nina M. Bergmar

Vanderbilt Journal of Transnational Law

This Note addresses the inability of domestic workers to seek redress for exploitation by diplomat employers. In examining the legal quagmire facing these workers, this Note highlights a departure by courts from the functional necessity theory underlying the Vienna Convention. Courts now rely wholly on the U.S. State Department's interpretation of the scope of diplomatic immunity, communicated through "Statements of Interest." The significant deference given to such statements has had dire consequences for exploited victims. Under a functional necessity approach, domestic workers are able to demand redress, as exploitation is a private act--i.e., not in furtherance of the diplomatic mission--undertaken …

Implementing Human Rights In Closed Environments Through The United Nations Convention Against Torture, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

Closed environments pose a major challenge to the full and effective implementation of human rights norms and conventions. However, many conventions contain mechanisms that can be used to further advance implementation of human rights in those closed environments. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) has several mechanisms in place that play an important role in enforcing and implementing human rights obligations. Along with the creation of a supervisory organ, the Committee against Torture (the Committee), the Convention provides a framework for: State Party reporting and concluding observations (COBs) under …

The Most Important Cases Of The Inter-American Commission On Human Rights, Richard Wilson

Scholarly Articles in Law Reviews & Journals

The Inter-American Commission of Human Rights (IACHR), together with its companion body, the Inter-American Court of Human Rights (IACtHR), are autonomous organs of the Organization of American States (OAS). The IACHR promotes and protects human rights in the Western Hemisphere. Created by the OAS in 1959, the Commission has its headquarters in Washington, D.C. Together with the Court, established in 1979 in San Jose, Costa Rica, the Commission has emerged as a model of international human rights and humanitarian law, as well as of individual rights.Since its inception, the Commission has made extraordinary progress. Through its 55-year history, it has …

Remarks: The Tension Between Law And Politics: Can The Icc Navigate A Multi-Polar World?, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Anatomy Of An Uprising: Women, Democracy, And The Moroccan Feminist Spring, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

During the Arab Spring, Moroccan men and women first took to the streets on February 20, 2011 to demand governmental reforms. Their movement became known as the Mouvement du 20-Février. In a series of protests, Moroccans called for democratic change, lower food prices, freedom for Islamist prisoners, and rights for the Berber people. Initially, King Mohammad VI attempted to suppress the movement. When this approach did not succeed, in a televised speech, the King agreed to reform the government. In June 2011, the constitutional committee proposed changes that would reduce the King’s absolute powers, implement democratic reforms, and create a …

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 …

Keeping The Cyber Peace: International Legal Aspects Of Cyber Activities In Peace Operations, Jann K. Kleffner, Heather A. Harrison Dinniss

International Law Studies

No abstract provided.

The Road Ahead: Gaps, Leaks And Drips, Michael J. Glennon

International Law Studies

No abstract provided.

The Syrian Intervention: Assessing The Possible International Law Justifications, Michael Schmitt

International Law Studies

No abstract provided.

Cyber Warriors In The Jus In Bello, Vijay M. Padmanabhan

International Law Studies

No abstract provided.

Cyber War And International Law: Does The International Legal Process Constitute A Threat To U.S. Vital Interests?, John F. Murphy

International Law Studies

No abstract provided.

Lawful Targets In Cyber Operations: Does The Principle Of Distinction Apply?, Noam Lubell

International Law Studies

No abstract provided.

Precision Air Warfare And The Law Of Armed Conflict, Christopher J. Markham, Michael N. Schmitt

International Law Studies

No abstract provided.

Methods And Means Of Cyber Warfare, William H. Boothby

International Law Studies

No abstract provided.

Seeking International Criminal Justice In Syria, Annika Jones

International Law Studies

No abstract provided.

Territorial Sovereignty And Neutrality In Cyberspace, Wolff Heintschel Von Heinegg

International Law Studies

No abstract provided.