Recent Submissions

  • Refugee Responses, State-like Behavior, and Accountability for Human Rights Violations: A Case Study of Sexual Violence in Guinea's Refugee Camps

    Farmer, Alice (2014-02-18)
    This Article advocates for better access to justice and a more comprehensive accountability system in refugee camps. Refugee women are frequently subject to sexual violence and sexual exploitation in the country of refuge, and find themselves without ways of redressing these fundamental rights violations. This Article uses the sexual violence and sexual exploitation that was documented in refugee camps in Guinea in 2002 as an illustrative case study of the protection problems faced by refugee women in many parts of the world. The author argues that the host government, UNHCR, and various non-governmental organizations operated together to fulfill state-like functions in long-term refugee camps, but their efforts left accountability, access to justice, and enforcement of women's human rights laws sorely lacking. The movement toward rights based refuge -embraced in varying forms by the aid providers in Guinea - provides a theoretical and practical framework for greater rights recognition, but has not yet delivered a complete response to the specific human rights violations faced by refugee women. If rights-based refuge is to succeed in refugee settings like Guinea, aid providers must make the protection of women's human rights a central concern by instituting a robust, multi-layered system of accountability to which all refugee women have access.
  • Building on Custom: Land Tenure Policy and Economic Development in Ghana

    Blocher, Joseph (2014-02-18)
    This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana's customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector.
  • Litigating the Rights of Street Children in Regional or International Fora: Trends, Options, Barriers and Breakthroughs

    Ewelukwa, Uché (2014-02-18)
    This article focuses on the fate of street children and interactions between street children and international law and international institutions. The landmark November 1999 decision of the Inter-American Court of Human Rights, Villagrdn Morales v. Guatemala, provides the basis for this article. Villagrdn Morales was the very first case in the history of the Inter-American Court where the victims of human rights violations were children, and the first case ever involving street children before an international adjudicatory body. This article examines the significance of this decision for street children.
  • Mediation in Bosnia and Herzegovina: A Second Application

    Austermiller, Steven (2014-02-18)
    A nation born out of mediation turns to mediation again, this time to rescue its judiciary and promote the rule of law. The country known as Bosnia and Herzegovina was created out of U.S. mediation efforts in 1995. Ten years later, the peace has held but a new set of challenges has emerged. The nation now plans to use mediation to improve judicial efficiency, and promote democracy and the rule of law. This article reviews the nation's new mediation laws and their potential impact on the judiciary and society generally. Drawing on his mediation experiences in private practice and his work managing rule of law projects in Bosnia and Herzegovina, the author concludes that the new mediation laws are an excellent start but need to be amended. The author further concludes that if given sufficient time and proper implementation, mediation can improve judicial efficiency and democracy in Bosnia and Herzegovina.
  • The Pinochet Affair: State Terrorism and Global Justice, by Roger Burbach

    Eichensehr, Kristen (2014-02-18)
    While most accounts of the prosecution of Augusto Pinochet focus on the undoubtedly dramatic progression of Pinochet's case in the British courts, Roger Burbach takes a different tack, construing The Pinochet Affair to include the pre- and post-history surrounding the British proceedings. Burbach draws on his personal familiarity with Chile since the 1970s-he fled the country during Pinochet's coup overthrowing Salvador Allende - and interviews with prominent figures in the Chilean human rights movement, judiciary, and political sphere. He constructs a picture of Augusto Pinochet as calculating his ascent to power, developing the necessary personality to order atrocities in pursuit of power, and using various tactics to avoid prosecution in Chile after his detention in London. Burbach tells a lucid story beginning with Pinochet's early years and continuing through Pinochet's recent evasion of Chilean courts. Burbach's access to key players in Chile provides especially good insight into the Chilean attempts to prosecute Pinochet since his return from London.
  • Protecting Cultural Property in Iraq: How American Military Policy Comports with International Law

    Thurlow, Matthew (2014-02-18)
    As American troops entered Baghdad as a liberating force on April 9, 2003, a wave of looting engulfed the city. Iraqi looters ransacked government buildings, stores, churches, and private homes stealing anything they could carry and defacing symbols of the defunct Hussein regime. American authorities had not anticipated the magnitude or the fervor of the civil disorder. But the looting over the course of two to three days at Iraq's National Museum, home to the world's greatest collection of Babylonian, Sumerian, and Assyrian antiquities, stood apart from the rest of the pillaging and vandalism in Baghdad. Months before, prominent members of the international archaeological community contacted the U.S. Department of Defense and U.S. State Department with concerns about the Museum. Nonetheless, as the threat materialized, American forces largely stood idle as a rampaging mob ravaged the collection. Initial reports noted that 170,000 objects had been taken including some of the world's most priceless ancient treasures. In the following weeks, the anger of Iraqis, archaeologists, and cultural aesthetes bubbled over in a series of accusatory and condemnatory newspaper reports and editorials Although the Museum's losses were far less than originally feared, (amounting to the loss of only about thirty-three major pieces and an additional 8,000-18,000 artifacts), the incident focused international attention on an important issue of international law, namely the protections afforded cultural property during armed conflicts. The looting of the Museum and several other important cultural sites in Baghdad and throughout Iraq has raised important political, moral, and legal questions: Does the United States have an obligation to protect the greatest cultural assets of the Iraqi people? Does American military policy provide adequate guidance to ensure that the cultural property of the Iraqi people will be preserved? Finally, at what point is the responsibility to protect cultural property waived by countervailing principles of military necessity?
  • American Gulag: Inside U.S. Immigration Prisons, by Mark Dow

    Wilensky, Julie (2014-02-18)
    In the wake of stringent 1996 federal immigration laws and post-9/11 terrorism concerns, the number of immigrants held in administrative detention in the U.S. has increased at an alarming rate. The Bureau of Immigration and Customs Enforcement (formerly the Immigration and Naturalization Service) currently detains around 200,000 noncitizens each year, and the federal government plans to expand the number of detention beds by 40,000 in the next five years.1 Some detainees are held in agency centers, but most are held in public and private corrections facilities alongside criminals serving sentences.2 Mark Dow documents this lucrative and expanding system of immigration detention in American Gulag: Inside U.S. Immigration Prisons. Drawing on ten years of research and interviews with detainees, advocates, immigration officials, government bureaucrats, and prison personnel, Dow provides a compelling account of the arbitrariness, secrecy, and abuse that pervades the U.S. immigration detention system.
  • Srebrenica as Genocide? The Krsti Decision and the Language of the Unspeakable

    Southwick, Katherine (2014-02-18)
    In August 2001, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) handed down the tribunal's first genocide conviction. In this landmark case, Prosecutor v. Radislav Krsti6, the trial chamber determined that the 1995 Srebrenica massacres-in which Bosnian Serb forces executed 7,000- 8,000 Bosnian Muslim men-constituted genocide. This Note acknowledges the need for a dramatic expression of moral outrage at the most terrible massacre in Europe since the Second World War. However, this Note also challenges the genocide finding. By excluding consideration of the perpetrators' motives for killing the men, such as seeking to eliminate a military threat, the Krsti6 chamber's method for finding specific intent to destroy the Bosnian Muslims, in whole or in part, was incomplete. The chamber also loosely construed other terms in the genocide definition, untenably broadening the meaning and application of the crime. The chamber's interpretation of genocide in turn has problematic implications for the tribunal, enforcement of international humanitarian law, and historical accuracy. Thus highlighting instances where inquiry into motives may be relevant to genocide determinations, this Note ultimately argues for preserving distinctions between genocide and crimes against humanity, while simultaneously expanding the legal obligation to act to mass crimes that lack proof of genocidal intent.
  • International Responsibility for Human Rights Violations by American Indian Tribes

    Cowan, Klint (2014-02-18)
    The American Indian tribes have a unique status in the law of the United States. They are characterized as sovereigns that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. Tribes enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and U.S. international human rights obligations. This Article explores that connection. It examines whether the tribes may breach certain international human rights obligations of the United States, whether tribal violations may incur U.S. international responsibility, and if so, what consequences might result. It constructs an argument that the United States has failed to implement fully its international human rights obligations and that it can be held internationally responsible for tribal violations of human rights. This argument leads to policy recommendations for the United States and tribal governments.
  • Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement

    Morgan-Foster, Jason (2014-02-18)
    Debate over the universality of human rights has typically focused on the extent to which international human rights law differs from local cultural practices and has generally sought to resolve these differences in favor of the international paradigm. Less attention, however, has been given to arguments that the international human rights paradigm may have something to learn from non- Western legal systems. This Article focuses on one such area: the conceptualization of individual duties to the community. In conventional human rights law, rights are explicit, while corresponding duties are often implicit, controversial, and poorly theorized. In contrast, the Islamic legal tradition offers a sophisticated paradigm of common ideals grounded in individual duties. The Article argues that a reconciliation of the rights-based and duties-based paradigms is both possible and necessary to render justiciable third generation "solidarity" rights, such as the right to development, the right to a healthy environment, and the right to peace.
  • Crossing Borders, Claiming Rights: Using Human Rights Law to Empower Women Migrant Workers

    Satterthwaite, Margaret (2014-02-18)
    This Article considers the impact of the Migrant Workers Convention on the human rights of women migrants. While the adoption of a convention targeting abuses against migrant workers is a significant development in international human rights law, the author cautions that its specialized nature might be perceived as a limitation on the obligations that states owe to women migrants. The author warns against traditional, singlevariable, compartmentalization of human rights treaties that would make the Migrant Workers Convention the only applicable human rights tool to women migrants, and, instead, advocates an intersectional approach. Using intersectionality, the author shows that many of the major human rights treaties can be invoked on behalf of the empowerment of migrant workers. While advocates and scholars should welcome the Migrant Workers' Convention as an interpretive tool and as a potential site for the development of best practices, they should also refocus their attention on the entire range of human rights treaties, and consider the ways in which the rights of women migrants are already included in the panoply of standards set out in those instruments.
  • Clinical Legal Education in China: In Pursuit of a Culture of Law and a Mission of Social Justice

    Phan, Pamela (2014-02-18)
    Seeking to play a greater role in an evolving world order, China faces pressure to conform to international legal norms and the rule of law. Strengthening the legal culture in China includes exploring new ways to train Chinese law students. Against this background of cultural and pedagogical change, clinical legal education has begun to take root in Chinese law schools. This Note from the Field explores the potential for clinical legal education to motivate students and scholars in China to push the boundaries of law, making it a tool of social justice for the average Chinese citizen. Drawing on her experiences as a clinical instructor in Chinese law schools, Pamela Phan argues that the American model of clinical legal education and its "social justice" tradition can play a significant role in the development of Chinese legal education, in turn strengthening legal culture and reform in China.
  • A Positive Right to Protection for Children

    Ezer, Tamar (2014-02-18)
    Concepts that are useful in other areas of human rights break down in the context of children. Because children are dependent on adults for their development, they are an anomaly in the liberal legal order, which views negative rights as implying fully rational, autonomous individuals that can exercise free choice. This Article argues for a positive right to protection for children, rooted in dignity, by probing the problematic nature of the positive/negative rights duality and exploring alternate legal approaches to protecting children 's rights in both international and comparative law. The adoption of positive rights for children would help assure adequate protection, which the current American legal regime, as typified by the case DeShaney v. Winnebago County Department of Social Services, fails to do.
  • Trade, Monitoring, and the ILO: Working To Improve Conditions in Cambodia's Garment Factories

    Kolben, Kevin (2014-02-18)
    The U.S.-Cambodia Bilateral Textile Trade Agreement, signed on January 20, 1999, was remarkable for its inclusion of a labor standards provision that created incentives for the Cambodian garment industry to bring itself into substantial compliance with international labor standards and Cambodian labor law. The labor standards provision provided the impetus for the creation of a novel program, to be operated by the International Labor Organization (ILO). This program combined trade-related incentives to enforce workers' rights with an unprecedented plan to have the ILO conduct factory-level monitoring of working conditions. This Article examines how the program was designed and implemented and evaluates the proposals and conceptions that preceded the final project document. This analysis provides a case study on how to construct and implement future programs that combine trade and factory monitoring to improve working conditions and enforce core labor rights along the global supply chain.
  • Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community

    Carpenter, Megan (2014-02-18)
    The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of the increasing globalization of markets, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. This Article argues that copyright laws can, and must, be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. The Article proposes three major changes to international copyright law: the incorporation of collective and communal notions of authorship, the expansion of the originality requirement to reflect these forms of authorship, and the application of limits on the duration of copyright protection in a broader community context. The Article further proposes that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works.
  • Managing Diversity in the European Union: Inclusive European Citizenship and Third- Country Nationals

    Becker, Michael (2014-02-18)
    European citizenship establishes a precedent whereby the exercise and protection of rights - the practice of citizenship - is no longer contingent on residency within the jurisdiction of national citizenship. Free movement rights have allowed European citizens to cross borders and participate more nearly as political and legal equals within the host society. At the same time, however, European citizenship has largely failed to account for the past or future migration of third-country nationals (TCNs) - those who are not citizens of any Member State - into or within the European Union. As a result, the creation of European citizenship has arguably had the unfortunate side effect of further distinguishing and excluding TCNs from the emerging European society. This Note argues that the current legal status of TCNs hinders successful diversity management by individual Member States, undermines European integration, and deprives TCNs of fundamental rights. The Note proposes that European citizenship should be expanded to allow TCNs to acquire European citizenship without the simultaneous authority over the citizenship status of TCNs would benefit the project of migrant integration into local, national, and transnational societies and help further the democratization of European governance. In addition, a redefined European citizenship could trigger a fundamental rethinking of national citizenship, potentially undermine the destructive influence of the extreme right, and, perhaps, lead to a more complete decoupling of the political and legal content of citizenshipfrom the idea of nation.
  • The Zimbabwean Human Rights Crisis: A Collaborative Approach to International Advocacy

    Davidson, Lorna; Purohit, Raj (2014-02-18)
    Over the past several years, a serious human rights crisis has developed in Zimbabwe, where President Robert Mugabe employs repressive measures to cling to power. Civil society and human rights groups in Zimbabwe are among those who have come under attack by the government, and they face an extremely difficult challenge in bringing about positive change in the country. This article describes the development of the current crisis in Zimbabwe, focusing on the problems faced by local activists and organizations that seek to promote greater respect for human rights. It further discusses one recent initiative launched by the U.S.-based organization Human Rights First, which organized a consultative meeting of regional civil society groups in August 2003. The article addresses the role that can and should be played by international civil society organizations, which must be sensitive to the contextual dynamics particular to the Zimbabwean crisis and to the region. If they are to be in any way effective, such organizations must act in support of local actors and stronger regional networks.
  • A Bed for the Night: Humanitarianism in Crisis

    Rieff, David (2014-02-18)
    During the 1990s, the world bore witness to a startling number of atrocities, from the much-publicized massacres in Bosnia and the genocide in Rwanda, to the lesser known civil wars in the Democratic Republic of Congo and the Sudan, which themselves claimed millions. To David Rieff, author of books such as Slaughterhouse: Bosnia and the Failure of the West and an experienced journalist who extensively covered Bosnia and Rwanda, the world is a place where literally billions suffer with little reason for hope. "Human rights" and "international community" are ideas with good intentions, but with little substance or weight behind them. For Rieff, the aid worker is one of the last remaining noble forces amidst this brutality. The aid worker brings food, care, and hope to both innocent and guilty alike in the worst of circumstances. Quoting one aid worker, Rieff defines traditional humanitarianism as "an effort to bring a measure of humanity, always insufficient, into situations that should not exist."' Because he holds the principles and acts of humanitarianism in such high regard, Rieff is deeply disturbed by the increased politicization of humanitarianism and the military interventions undertaken in its name in the 1990s. David Rieff's A Bed for the Night: Humanitarianism in Crisis is an emotionally raw and deeply personal argument that humanitarian organizations must be free from the constraints of the demands of donor governments and the broader ideological concerns of the human rights or "good governance" movements. Humanitarianism must be free to simply aid those in need. In making this argument, the book provides a view into the politics and subculture of humanitarian aid organizations, from the International Red Cross (IRC) to Doctors Without Borders (MSF); it takes as its examples the humanitarian crises of the 1990s, from Bosnia to Afghanistan.
  • The Complementary and Conflicting Relationship Between the Special Court for Sierra Leone and the Truth and Reconciliation Commission

    Tejan-Cole, Abdul (2014-02-18)
    Most countries in transition from civil war face limited choices when imposing accountability for past atrocities. Some, like Mozambique, opt to grant unconditional amnesty. Other countries, like South Africa, have instituted a truth and reconciliation commission and granted limited amnesty, while yet others, like Rwanda, prosecute perpetrators of genocide, war crimes, and crimes against humanity. These solutions are not mutually exclusive. Following a ten-year, bloody war characterized by widespread killings, amputations, rape, slavery, enforced prostitution and extensive use of child soldiers, Sierra Leone has chosen a unique blend of institutional mechanisms. At first, the government purported to grant an "unconditional" amnesty to the perpetrators while establishing a Truth and Reconciliation Commission. When the agreement establishing the latter foundered, the government established a Special Court in addition to the Commission. Amnesty pardons all, the Commission seeks truth, reconciliation and healing for past wrongs, and the Court aims at prosecuting the most culpable perpetrators. This Note examines two of these seemingly conflicting mechanisms - the Truth and Reconciliation Commission and the Special Court. The Note compares the mandates of the respective bodies, as well as their basis, composition and jurisdiction and discusses their respective roles in Sierra Leone. The Note highlights several areas in which these bodies need to cooperate while maintaining their independence and emphasizes the need to define the relationship between the two institutions in order to preserve their effectiveness.
  • Human Rights Litigation Under the ATCA as a Proxy For Environmental Claims

    Bridgeman, Natalie (2014-02-18)
    Suing corporations in U.S. courts for environmental harms abroad may soon be possible under the Alien Tort Claims Act (ATCA). Mhile several cases have been brought alleging environmental torts under the ATCA, no case has yet yielded corporate liability. Until courts accept environmental principles as part of the "law of nations," and therefore actionable under the ATCA, plaintiffs should use remedies available for human rights claims as proxies for their environmental claims. Because corporate international environmental law violations are frequently linked to human rights abuses, well-established human rights causes of action should be used to usher in the emerging justiciability of environmental claims.

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