Human Rights Law Commons^™

Introduction: Global Human Rights Law And The Boundaries Of Statehood, Daniel Augenstein, Hans Lindahl

Indiana Journal of Global Legal Studies

The contributions collected in this Special Issue are the outcome of a colloquium on "Global Human Rights Law and the Boundaries of Statehood" held at the Stellenbosch Institute for Advanced Study (STIAS) in South Africa in March 2015. The colloquium is the first in a series of topics to be addressed within the STIAS research project, "Boundaries and Legal Authority in a Global Context," coordinated by Hans Lindahl and Louise du Toit. We would like to express our gratitude to STIAS for the funding and logistics of the colloquium. Our particular thanks are due to the director of STIAS, Hendrik …

The Temporal Rivalries Of Human Rights, Fleur E. Johns

Indiana Journal of Global Legal Studies

Nation-states' "boundaries" are produced in time: around official working hours and terms of office, for instance, and in the historicomythic "life of the nation." Global human rights practices affirm and depend on nation-states' temporal authority, while also calling that authority into question. In different ways, global markets do likewise. In recent decades, the ubiquity of both finance capital and international human rights law, among other factors, may have encouraged the fracturing of time into intervals of ever-decreasing length. Temporal authority premised on the long-term seems to have declining purchase, even as historicism and futurism abound, discouraging some modes of state-based …

Corporations And The Limits Of State-Based Models For Protecting Fundamental Rights In International Law, David Bilchitz

Indiana Journal of Global Legal Studies

At the heart of international law lies a central tension. On the one hand, the fundamental rights recognized in international treaties protect the fundamental interests of individuals, obligating all actors who can affect these rights. One the other hand, international law has often been conceived of as a system in which the only legitimate actors are states. In turn, only states can be bound by the fundamental rights obligations in international treaties. To address this tension, two models have been proposed. The first is an "Indirect duty" approach, whereby the state remains the primary duty-bearer and must itself "create" the …

Fractured Territories And Abstracted Terrains: Human Rights Governance Regimes Within And Beyond The State, Larry Catá Backer

Indiana Journal of Global Legal Studies

The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the …

Human Rights And Global Public Goods: The Sound Of One Hand Clapping?, Neil Walker

Indiana Journal of Global Legal Studies

Each operating in a presumptively general or universal register, 'public goods" and "human rights" are among the most popular and visible contemporary carriers of ideas of global law and governance and are therefore prime sources for any broader project of global justice. Their combination, moreover, holds out the prospect of a fertile engagement between the two core concerns of modern political morality our collective requirements and potential (public goods) and our individual dignity and well-being (human rights). Yet for all their ambition, public goods and human rights each face the formidable challenge of placing considerations of political authority and political …

Statehood, Power, And The New Face Of Consent, Sheldon Leader

Indiana Journal of Global Legal Studies

Individuals and groups are often subjected to power, both public and private, by eliciting their consent. Debate usually focuses on whether or not that consent is freely given or is vitiated by imbalances of strength between the bargaining parties. This essay focuses on a different issue, one that is largely passed over in legal and moral analyses: how far does and should consent bind one to accepting in advance changes in the future? There are signs of a fundamental shift in answering this question-a shift that particularly concerns the control of power in the economy. Industrial democracies may be abandoning …

One Pillar: Legal Authority And A Social License To Operate In A Global Context, Hans Lindahl

Indiana Journal of Global Legal Studies

The claim that businesses have a social license to operate acquires concrete form in the second pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs) in the fundamental distinction between "compliance with all applicable laws" and "respect for human rights." The aim of this paper is to critically examine the presuppositions that undergird this distinction and to explain how and why moving beyond state-centered thinking about law, in response to violations of human rights by globally operating businesses, requires acknowledging that there is one pillar that embraces states and businesses: the legal obligation to comply with international …

The Human Right To Water: A False Promise?, Stephen C. Mccaffrey

University of the Pacific Law Review

No abstract provided.

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Human Development As A Core Objective Of Global Intellectual Property, J. Janewa Oseitutu

Faculty Publications

Global intellectual property obligations shape domestic laws and policies. More than twenty years since the first multilateral trade-based intellectual property agreement, critics contend that global intellectual property law prioritizes intellectual property rights over other interests, and profits over people. Faced with international intellectual-property obligations, nations have been forced to justify laws and policies designed to promote human development in areas such as health and education as exceptions to intellectual property protection. This is the result of legal interpretations that treat the objectives of intellectual property protection and human development as inconsistent with one another. Drawing on the objectives of trade …

Some Newly Emergent Geographies Of Injustice: Boundaries And Borders In International Law, Upendra V. Baxi

Indiana Journal of Global Legal Studies

This conversation examines the relationship between the boundaries and borders in international law and the production of geographies of injustice through the lens of the colonial epistemologies, especially of private international law in the face of mass social disasters like the archetypal Bhopal catastrophe. I also address the languages and logics of coloniality and postcoloniality, as states of consciousness and social organization, under the complex and contradictory unity of neoliberalism.

To Whom It May Concern: International Human Rights Law And Global Public Goods, Daniel Augenstein

Indiana Journal of Global Legal Studies

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global …

Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau

Faculty Scholarship

In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …

Rfras And Reasonableness, Steve Sanders

Indiana Law Journal

The organized opponents of legal and social equality for gays and lesbians, particularly the foes of marriage for same-sex couples, have coalesced in recent years around the rallying cry of "religious liberty." In 2015, the conflict between LGBT rights and religious liberty intensified as legislators in seventeen states considered adopting Religious Freedom Restoration Acts (RFRAs). Most of the national attention focused on Indiana, where legislators adopted a RFRA under pressure from religious conservatives, only to later amend it under pressure from business and civic leaders over concerns that the law sent a message endorsing anti-gay discrimination.

RFRAs, which typically require …

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter K. Yu

Faculty Scholarship

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to …

Human Rights And Extractive Industries: Environmental Law And Standards, Sara Seck

Articles, Book Chapters, & Popular Press

The importance of environmental laws and standards for sustainable development of extractive industries has been well recognized by the international community for decades. More recently, the relationship between human rights and environmental protection has received greater attention in light of increased global and local recognition of both substantive and procedural environmental rights. Extractive industries search for, discover and develop natural resources in countries in which the governmental and civil society institutions necessary to protect human rights may not exist or where governments lack the capacity or will to effectively ensure the protection of human rights. Allegations of human rights violations …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Faculty Scholarship

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Exposing The Gendered Myth Of Post Conflict Transition: The Transformative Power Of Economic And Social Rights, Madeleine Rees, Christine M. Chinkin

Articles

Post conflict transition has become an industry, with a plethora of states, NGOs, experts, institutes, academics and U.N. bodies, all seeking to find the right formula to effect real and sustainable peace where previously there has been none. It is valuable and important, nevertheless, to note that "more than [fifty] percent of peace agreements fail within the first five years of signature". The evidence is clear: transitions are not working.

In this essay we seek to explain and deconstruct some of the terminology applied to post conflict situations by briefly looking at conceptss of "gender equality" participation, political economy, neo-liberalism, …