International Law Commons^™

The Environment And Trade Agreements: Should The Wto Become More Actively Involved, Mark S. Blodgett, Richard J. Hunter Jr.

UC Law SF International Law Review

The article first explores several basic arguments concerning whether the World Trade Organization (WTO) should require member states to adopt environmental standards as major components of international trade agreements. Section II provides a brief background on the debate surrounding environmental aspects of trade agreements and their relationship to development. Section III discusses the benefits and problems associated with enforcing environmental standards through the WTO. Section IV provides arguments for the incorporation of environmental standards in trade agreements through the WTO.

War Of Words Or A Regional Disaster: The (Il)Legality Of Israeli And Iranian Military Options, Behnam Gharagozli

UC Law SF International Law Review

As the intensity of the verbal exchanges between Israel and the Islamic Republic of Iran grows, so does the importance of analyzing the current Israeli-Iranian enmity. This note sets out to answer two questions: (1) Whether Israel has the right to attack Iran out of self-defense, and reciprocally; (2) whether Iran has the right to attack Israel out of self-defense. This paper will argue that while neither side may legally invoke the right of preemption or Article 51 self-defense, there is ample evidence to suggest that Iran has more of a reason to fear an Israeli conventional attack on its …

An Emerging Norma: The Duty Of States To Provide Reparations For Human Rights Violations By Non-State Actors, Cecily Rose

UC Law SF International Law Review

An international norm is emerging whereby States, in certain circumstances, have a legal duty to provide reparations for violations committed by non-State actors. The reparations programs designed by truth and reconciliation commissions form the most recent and striking evidence this norm's emergence. In particular, the governments of both Peru and Sierra Leone have adopted the recommendations made by their respective truth commissions regarding the provision of reparations to victims, regardless of the status of the perpetrators. While this emerging norm has a basis in certain international human rights treaties as well as in the jurisprudence of the Inter-American Court of …

Violent Against Women And Hiv Control In Uganda: A Paradox Of Protection, Kim Thuy Seelinger

UC Law SF International Law Review

An increasing amount of medical and human rights literature indicates that gender-based violence (GBV) can increase women's risk of HIV infection. Conversely, disclosed HIV-positive status can itself leave women vulnerable to marginalization and abuse.

However, the HIV and AIDS Prevention and Control Bill (HIV Control Bill) currently pending before the Ugandan Parliament presents a paradox of protection. Advocates fear its mandatory testing, disclosure, and criminalization provisions will (a) discourage women from accessing health services, and (b) render women who disclose their HIV positive status vulnerable to GBV, marginalization, and threats of prosecution.

This article presents a timely comparison of Uganda's …

Masculinity, Health, And Human Rights: A Sociocultural Framework, Shari L. Dworkin

UC Law SF International Law Review

This paper draws upon a sociocultural framework from masculinity studies and applies it to the case of men's health with the goal of providing the legal field with critical considerations that might shape a stronger future research agenda in the area of masculinity, rights, and health.

It is well recognized that gender inequality affects women, and that men enjoy numerous cultural and institutional privileges that negatively shape women's health outcome. These commonly understood drivers of women's poor health have led to crucial and much needed linkages between women's rights and health. However, men do not exclusively enjoy cultural and institutional …

Competitive And Fair: The Case For Exporting Stronger Extraterritorial Labor And Employment Protection, Carson Sprott

UC Law SF International Law Review

Increasingly, U.S. citizens are choosing or being asked to work in foreign countries for U.S. corporations or their direct subsidiaries. American laws often regulate expatriate employment status, but there is drastic inconsistency in the application of such laws. This paper discusses the limited application of U.S. labor and employment laws to U.S. corporations abroad to both American and foreign labor. This is juxtaposed against the stronger rights of alien workers here in the U.S. The analysis is specifically focused on the need for a coherent foreign employment law policy consistently applied by Congress. As a corollary, there is an economic …

Hiv-Based Claims For Protection In The U.S. And U.K., Ruly Tafzil

UC Law SF International Law Review

This year, millions will suffer persecution and death as a result of their HIV-positive status and AIDS-related illnesses. In the face of this morbid reality stands the promise of refuge offered by the international community, laid out in instruments such as the Convention Relating to the Status of Refugees and the European Convention on Human Rights (ECHR). This note compares and critiques the means by which HIV-positive persons may claim protection in the United States and the United Kingdom. In the United States, HIV-based claims for asylum were predominantly characterized as claims of persecution on account of a particular social …

The Law At War: Counterinsurgency Operations And The Use Of Indigenous Legal Institutions, Richard Morgan

UC Law SF International Law Review

Success in counterinsurgency campaigns requires the U.S. military to train, equip, and ultimately turn over responsibility for public safety to indigenous legal institutions. Doing so presents many challenges, as pragmatic concerns for operational security and use of intelligence as legal evidence must be reconciled with cultural differences and the weakness of indigenous legal institutions. This article argues, however, that such participation may be required under international law. Further, participation may help to legitimize counterinsurgency goals in the eyes of the local populace, and bring additional resources to military efforts. In order to realize such benefits, this article argues that military …

Operation Denucleunification: A Proposal For The Reunification And Denuclearization Of The Korean Peninsula, Eunice Lee

UC Law SF International Law Review

Since the division of the Korean peninsula into two countries, North and South Korea, the peninsula has been in the public eye primarily because of North Korea's nuclear program. Scholars have addressed ways to denuclearize the Korean peninsula, but to this day, North Korea remains a nuclear state. As North Korea continues to be isolated from the outside world, mystery surrounds the manner in which its government behaves. Should the U.S. respond to North Korea's perceived nuclear threat with force, or should diplomacy be used to achieve peace? Given the complexity of the nuclear dilemma, there is no simple solution …

Dolphins, Whales, And The Future Of The International Whaling Commission, Yui Nishi

UC Law SF International Law Review

Whaling has become a global controversy over the past few decades. In particular, countries such as Japan continue to hunt small cetaceans for both consumption and curbing purposes. Moreover, "small cetaceans" do not fall under the protection of the International Whaling Commission (hereafter "IWC"); therefore, the hunts are virtually unregulated. While the intensely emotional aspect is a significant part of the controversy, this note proposes a scientific, reason-based approach to this topic, which considers what solutions may be beneficial to all countries involved. Specifically, this note proposes that nations through international cooperation (1) conduct intensive scientific research in order to …

Human Trafficking: State Obligations To Protect Victims' Rights, The Current Framework And A New Due Diligence Standard, Viviana Waisman

UC Law SF International Law Review

Women who are trafficked for sexual exploitation are vulnerable to human rights violations in their country of origin, during their migration, and then in the destination country. This paper examines the existing legal protections available to trafficked women using Spain as an illustrative case study, and offers a new approach for defining State obligations to protect trafficking victims. The author advocates utilizing a due diligence standard framework that requires States to meet their international human rights obligations by granting legal residence to trafficking victims.

Judicial Protection Of The Right To Health In Colombia: From Social Demands To Individual Claims To Public Debates, Alicia Ely Yamin, Oscar Parra-Vera

UC Law SF International Law Review

Even in a region characterized by a number of countries with robust constitutions and judicial enforcement of social rights, Colombia stands out as a striking example of judicial activism regarding health rights. Nowhere has Colombia's judicialization of social demands been more striking than in the health domain. By 2008, it was clear that recourse to the courts had become an essential "escape valve" in a health system that was incapable of regulating itself; but the routinization of judicial intervention had created additional problems. In July of 2008, the Colombian Constitutional Court (the Court) issued a sweeping decision aimed at improving …

Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy

Michigan Journal of Gender & Law

Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis …

Edzia Carvalho On Human Rights: Politics And Practice. Edited By Michael Goodhart. New York: Oxford University Press, 2009. 455pp., Edzia Carvalho

Human Rights & Human Welfare

A review of:

Human Rights: Politics and Practice. Edited by Michael Goodhart. New York: Oxford University Press, 2009. 455pp.

Kurt Mills On Governance, Order, And The International Criminal Court: Between Realpolitik And A Cosmopolitan Court. Edited By Steven C. Roach. Oxford: Oxford University Press, 2009. 289pp., Kurt Mills

Human Rights & Human Welfare

A review of:

Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court. Edited by Steven C. Roach. Oxford: Oxford University Press, 2009. 289pp.

Hidetoshi Hashimoto On International Law (Sixth Edition). By Malcolm Shaw. New York: Cambridge University Press, 2008. 1542pp., Hidetoshi Hashimoto

Human Rights & Human Welfare

A review of:

International Law (Sixth Edition). By Malcolm Shaw. New York: Cambridge University Press, 2008. 1542pp.

Palestinian Refugees: Protection In Exile, Vivienne Chew

Human Rights & Human Welfare

The Palestinian refugee problem is perhaps the most critical and complex of the outstanding issues in the Israeli-Palestinian conflict. Sixty-two years have now passed since the 1948 Arab-Israeli War, in which hundreds of thousands of Palestinians were displaced en masse and rendered stateless. Since then, successive generations of Palestinian refugees have endured discrimination, insecurity, repeated cycles of displacement, and infringement of their basic rights and freedoms.

Amazigh Legitimacy Through Language In Morocco, Sarah R. Fischer

Human Rights & Human Welfare

Contemporary Morocco rests at a geographic and developmental crossroads. Uniquely positioned on the Northwestern tip of Africa, Morocco is a short distance away from continental Europe, cradled between North African tradition and identity, and Western embrace. The landscape is varied: craggy mountains trail into desert oases; cobbled streets of the medina anchor the urban centers; mud homes dot the rural countryside. Obscured from the outside observer, behind the walls of the Imperial cities and between the footpaths of village olive groves, Morocco’s rich and diverse Arab and Amazigh cultures and languages circle one another in a contested dance. Morocco’s identity …

Establishing Governmental Legitimacy In Iraq: The Path To Protecting Human Rights, Matt Mines

Human Rights & Human Welfare

Rule of law is essential for ensuring the protection of human rights in post-conflict societies. Contention and disagreements, however, often arise regarding the best ways to establish rule of law in a reconstructive state. It is a vital prerequisite to rule of law that a government be viewed as legitimate. Following an armed conflict, the restoration of basic services and infrastructure is essential for instilling confidence that the government is legitimate and is capable of providing for the needs of the local populace. The essential services include water, electricity, and security on a consistent basis. In order to ensure ongoing …

Necessary Fictions: Indigenous Claims And The Humanity Of Rights, Peter Fitzpatrick

Human Rights & Human Welfare

To begin, not propitiously. When checking whether my title ‘Necessary Fictions’ was being used elsewhere, Google revealed that it was going to be used in a future talk, and by me. It transpired mercifully that this use was going to be quite different to the present which suggested the prospect of a new academic genre: same title, different paper; rather than the standard combination of same paper, different title. Fortuitously, that contrast gave me the leitmotiv for this talk – that things ostensibly the same can be different, and that things ostensibly different can be the same.

© Peter Fitzpatrick. …

Tunisia–The Imprisonment Of Fahem Boukadous (Part One Of A Series), Rob Prince

Human Rights & Human Welfare

To most Americans with the exception of those few who, for whatever reason, have an attachment to the North African country of Tunisia, the name Fahem Boukadous, foreign to American ears, means nothing. It means a good deal more to "Reporters Without Borders” and to the US State Department that actually issued a statement (half way down the page) on his behalf, to the US intelligence agencies and military that have carefully followed the Spring, 2008 uprising in the Tunisian region of Gafsa–deemed the most extensive and militant social protest in that country’s history in the past quarter century.

© …

The Human Rights Of Non-Citizens. By David Weissbrodt. (Book Review), Caroline Bettinger-López, Bassina Farbenblum

Articles

No abstract provided.

Foreign Sovereign Immunity, Individual Officials, And Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are …

The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley

Faculty Scholarship

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address …

Foreign Sovereign Immunity And Domestic Officer Suits, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ …

Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This …

A Tale Of Two Judges : A Judge Advocate’S Reflections On Judge Gonzales’S Apologia, Charles J. Dunlap Jr.

Faculty Scholarship

This is a response to - and reflection about - Judge Alberto Gonzales's essay in the Texas Tech Law Review entitled "Waging War Within the Constitution" 42 Tex. Tech. L. Rev. 843 (2010). It argues that national security law policy in an era of complex challenges is best designed when the expertise of the widest number of knowledgeable practictioners is brought to bear in a principled and fearless manner.

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Does Lawfare Need An Apologia?, Charles J. Dunlap Jr.

Faculty Scholarship

Few concepts in international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.