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No. 6 - 30th Anniversary Issue, Henry Kissinger, James Baker, Warren Christopher, Madeleine Albright, Colin Powell, Lee Hamilton, Daniel R. Fung, Diana Wallis

Occasional Papers Series

With this issue of the Occasional Papers, we celebrate the 30th anniversary of the founding of the Dean Rusk Center, which bears the name of the late School of Law faculty member who served as secretary of state under Presidents John F. Kennedy and Lyndon B. Johnson from 1961 until 1969.

Our purpose in hosting the conference and lectures published in this volume was to provide a forum for developing the comprehensive new focus necessary to met the American foreign policy demands of the 21st century. In so doing, it is our intent that the advice and counsel of the …

Improving The Agents And Mechanisms Of Humanitarian Intervention, James Pattison

Human Rights & Human Welfare

I agree with the broad thrust of Abramowitz and Pickering’s article. They rightly highlight the failings of the current agents and mechanisms of humanitarian intervention. The problem, however, is twofold. First, all the currently-existing interveners possess notable, and well-known, flaws. The U.N. and regional organizations suffer from serious shortfalls in funding and equipment. States frequently lack the commitment and willingness to act. And, although NATO’s operations in Bosnia and Kosovo raised hopes that it would be a willing and powerful humanitarian intervener, the reluctance of many of its members to commit troops in Afghanistan (where member states have clear interests) …

The Responsibility To Protect And The Failure To Respond, Todd Landman

Human Rights & Human Welfare

Commentators on global politics frequently observe the abject failure of states and global institutions to respond to local, regional, and global crises ranging from dramatic climatic events, humanitarian crises, warfare and violence, to the continuation of unsavoury rights-abusive regimes. In my own work in the field of the comparative politics of human rights, the types of observations that Abramowitz and Pickering make in this piece are all too common, and have led many in the past to make similar such observations that powerful states constantly engage in a grand human rights “double standard.”

October Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

“Making Intervention Work.” by Morton Abramowitz and Thomas Pickering. Foreign Affairs. September/October 2008.

Has The Iraq War Torpedoed The “Responsibility To Protect”?, William F. Felice

Human Rights & Human Welfare

At a U.N. World Summit in 2005, the nations of the world approved the “responsibility to protect.” This emerging principle of international law, charges each individual state with the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. If a nation fails to protect its populations from these barbarities, the nations of the world declared that they would act, through the Security Council, in accordance with the U.N. Charter, to stop the violence against innocents everywhere and protect imperiled peoples. In theory, Chapter VII of the U.N. Charter gives the member states the military …

Section 2: 2008 Election And The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Nothing "Colonial" About It: Service Delivery And Accountability, Todd Landman

Human Rights & Human Welfare

At one level, there is little in “The New Colonialists” with which I disagree. The necessary state capacity in developing societies for basic service delivery is in many cases absent, significantly weak, or has been corrupted in ways that produce tremendous inequality of access and disproportionate social outcomes that are related to race, ethnicity, poverty, gender, and other categories of social identity. It is true that in the presence of weak state institutions, widespread corruption, and underdeveloped infrastructure, a large number of national and international non-governmental agencies and organizations have sought to redress such imbalances through their work in providing …

September Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

"The New Colonialists" by Michael A. Cohen, Maria Figueroa Küpçü, and Parag Khanna. Foreign Policy. July/August 2008.

Saving Lives: A First Step Toward Freedom Not Dependence, William F. Felice

Human Rights & Human Welfare

During the nineteenth century, European powers extended and deepened their brutal domination of the so-called “uncivilized” (sic) nations and peoples around the world. These efforts were named “colonialist” and were based on the uprooting of indigenous peoples, the export and pillage of natural resources, cultural displacement, direct political control, and economic exploitation and the creation of dependency by the Europeans. While the European states gained colossal economic benefits from these arrangements, the colonized peoples were left with failed states and bad governments. Advocates of these colonialist policies often justified these actions on the basis of a deep-felt ideological belief in …

Cosmopolitanism And Rationalizing Tendencies, James Pattison

Human Rights & Human Welfare

When phone-in talk shows, the press, and undergraduates debate the case for cosmopolitan accounts of global distributive justice, there are a number of standard rationalizations given for why we don’t have a duty to help. These include: “we have duties only to our fellow countrymen”; “poverty is caused by corrupt leaders, so not our fault, and therefore not our responsibility“; and “humanitarian aid is counter-productive.” Unlike the other two sorts of rationalization, the latter claim does not necessarily deny the moral cosmopolitanism premise that we have extensive duties to relieve the suffering of those beyond our borders. Rather, it follows …

In With The Old, Out With The New, Brent J. Steele

Human Rights & Human Welfare

Michael Cohen, Maria Figueroa Küpçü and Parag Khanna make some compelling arguments about the inherent drawbacks regarding the role diverse networks of NGOs play in keeping at-risk populations alive throughout the world. We are informed that these groups are “the new colonialists,” agencies much like the old European empires. These new colonialists are apparently enforcing a cycle of dependency which prevents the development of state structures, structures that apparently sustain these populations more effectively. The problem with this thesis is that the authors do not seem to entertain the possibility that the nation-state is itself an (old) colonial construct, and …

August Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

"Still knocking, as the doors close." The Economist. June 19, 2008.

Who Counts? Refugees And The Politics Of Indifference, Sonia Cardenas

Human Rights & Human Welfare

The contemporary plight of refugees, asylum seekers, and other marginalized groups reveals the limits of international human rights norms. Numerous internationally recognized standards and laws exist for the humane treatment of people. Yet despite enormous progress, the reality is that some people are simply deemed to be less fully human than others. Nationalism and racism underlie popular indifference to today’s unwanted refugees. This is the unspoken truth that lies at the heart of the global refugee problem.

Social Contract In A Borderless World, Daniel J. Graeber

Human Rights & Human Welfare

Addressing the American Political Science Association in 2000, the international relations theorist Robert Keohane of Princeton University noted that effective governance in a globalized world depends more on interstate cooperation and transnational networks than any type of world body. Keohane made the claim that the people and players in a globalized world stand to gain from the system through cooperation across borders and boundaries. Nevertheless, Keohane also observed that the actors may exploit interdependence in that system by transferring blame to others and that, although institutions may be essential, they can also be dangerous. So it is when confronting the …

Appealing To The Realist Nature Of The Problem: An Attempt To Find Common Ground, Eric K. Leonard

Human Rights & Human Welfare

Whenever I teach my undergraduate course on human rights, I inevitably have one student who argues that state sovereignty trumps all and that states should act in their “national interest” in regards to issues where human rights and sovereignty clash. They usually continue the argument by stipulating that “human rights” are not defensible unless they are universally accepted, meaning contained in a universally ratified document (and they use the term “universal” literally), because all authority resides in the state. Thus, it is always an interesting discussion when we turn to the issue of migration, and more specifically, refugees.

Reconstructing Sovereignty: From Control To Responsibility, Eric K. Leonard

Human Rights & Human Welfare

As I stood with a standing-room only crowd last fall at a United Nations University of New York (UNU-ONY) event entitled, "Prevention of Mass Atrocities: From Mandate to Realization," I began to wonder how far the responsibility to protect (R2P) could be stretched. As defined by the UNU-ONY organizers, the purpose of the event was " to explore the work of mass atrocity prevention across the UN system, with a focus on the role of the new Office of the Special Representative for the Prevention of Genocide and Mass Atrocities (SRPGMA)." As I currently look at the international community's response …

July Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

"Armed and Humanitarian" by Bruce Falconer. Mother Jones. May 19, 2008.

Transdisciplinary Conflict Of Laws Foreword: Cavers's Double Legacy, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Publications

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Mission Creep: De-Militarizing Humanitarian Protection, Sonia Cardenas

Human Rights & Human Welfare

Over a decade ago, the U.S. military was warning liberal internationalists about the dangers of "mission creep." Today it is doing the opposite, incorporating relief and development work into its operations. In the devastating aftermath of Cyclone Nargis in Burma , the U.S. military's newfound mission may seem compelling. Unfortunately, expanding the military's role into humanitarian work reflects a flawed logic that should be resisted. There are more promising ways to protect victims of humanitarian disaster.

When Steel And Guns Meets Bread And Butter, Daniel J. Graeber

Human Rights & Human Welfare

Speaking before the 191-member United Nations in 2005, then-British Prime Minister Tony Blair said that "For the first time . we are agreed that states do not have the right to do what they will within their own borders but that we in the name of humanity have a common duty to protect people where their own governments will not." This notion, that of responsible sovereignty , says that nation states forfeit the right to uninterrupted internal freedoms when they no longer uphold the responsibilities associated with sovereignty.

Modern Constitutional Democracy And Imperialism, James Tully

Osgoode Hall Law Journal

To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which …

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Osgoode Hall Law Journal

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …

Bush V. Boumediene: The Court Is Back, Jay Dratler

Akron Law Faculty Publications

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.

In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its “teachable …

June Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

"A Screaming Start: The UN and Human Rights." The Economist. April 24, 2008.

The Human Rights Council: A Failure In Global Governance, Eric K. Leonard

Human Rights & Human Welfare

“The UN and Human Rights: A Screaming Start,” makes several valid points of concern in regards to the recently formed Human Rights Council. As the article stipulates, in many ways the Council does not look radically different from its predecessor, the Human Rights Commission, in that it fails to provide membership regulations that would keep “not free” states of the Council (with only twenty-three out of forty-seven states defined as free) and it lacks the clout in the political hierarchy to truly accomplish anything of substance. However, the article does point out that the one mechanism that could prove useful …

The Myth Of Membership: Reforming The U.N. Human Rights Council, Sonia Cardenas

Human Rights & Human Welfare

The purportedly new-and-improved Human Rights Council is, by most accounts, failing to live up to its promise. Critics accuse the Council of following in the footsteps of its predecessor the U.N. Human Rights Commission because it permits rights abusers among its ranks and it focuses overwhelmingly on Israel. The dominant assumption, articulated by the United States, is that this is a problem of membership; more stringent criteria would result in a less biased body. This, however, is wishful thinking. Changing the rules of membership would only substitute one set of biases for another. A productive dialogue about reforming the Human …

Exile: Why The Human Rights Council Will Not Work, Daniel J. Graeber

Human Rights & Human Welfare

The Economist writes in an April 24th edition that the U.N.’s Human Rights Council, the predecessor to the sixty-year-old U.N. Commission on Human Rights, is a “one-sided Israeli-bashing” organization. The Economist argues that the inclusion of second- and third-tier countries from the Organization of Islamic Conference (OIC) and the Non-Aligned Movement (NAM) makes it a forum for targeting offenses committed by the Israeli government against the Palestinian people.

Christina M. Cerna On Truth And Reconciliation In South Africa, Did The Trc Deliver? Edited By Audrey R. Chapman And Hugo Van Der Merwe. Philadelphia: University Of Pennsylvania Press, 2008. 346 Pp., Christina M. Cerna

Human Rights & Human Welfare

A review of:

Truth and Reconciliation in South Africa, Did the TRC Deliver? Edited by Audrey R. Chapman and Hugo van der Merwe. Philadelphia: University of Pennsylvania Press, 2008. 346 pp.

Stephen James On The Battle For Welfare Rights: Politics And Poverty In Modern America By Felicia Kornbluh. Philadelphia: University Of Pennsylvania Press, 2007. 287pp., Stephen James

Human Rights & Human Welfare

A review of:

The Battle for Welfare Rights: Politics and Poverty in Modern America by Felicia Kornbluh. Philadelphia: University of Pennsylvania Press, 2007. 287pp.

Gender, Race, And Intersectionality On The Federal Appellate Bench., Todd Collins, Laura Moyer

Faculty and Staff Scholarship

While theoretical justifications predict that a judge’s gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal …