• Confronting the Violence Committed by Armed Opposition Groups

      Nair, Ravi (2014-01-27)
      Human rights groups have limited their role to monitoring and protesting human rights violations committed by state actors.! With the emergence of armed opposition groups-such as the Sendero Luminoso in Peru2 and the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka 3 -that murder, torture, and destroy civil society in their respective regions, human rights entities must question whether they should broaden their mandate to include abuses committed by such groups. Focusing on the context of India, this article: (1) develops arguments encouraging human rights groups to critique abuses perpetrated by armed opposition groups; (2) suggests potential problems that may be encountered in making such criticisms; and (3) raises some reasons for caution by human rights organizations that condemn the actions of armed opposition groups.
    • Maya Aboriginal Land and Resource Rights and the Conflict Over Logging in Southern Belize

      Anaya, S (2014-01-27)
      In the last several years, the government of Belize, through its Ministry of Natural Resources, has granted at least seventeen concessions for logging on lands totaling approximately 480,000 acres in the Toledo District, its most southern political subdivision. The rural parts of the Toledo District that are affected by the concessions are inhabited primarily by Maya people, descendants of the Maya civilization that flourished throughout substantial parts of Mexico and Central America hundreds of years prior to European colonization in the Western Hemisphere. On November 29, 1996, Maya organizations initiated in the Supreme Court of Belize, the trial court of general jurisdiction, an action challenging the granting of the logging concessions. In the lawsuit, the Maya assert rights over lands and resources that are included in the concessions and seek to have the concessions enjoined and declared in violation of Maya rights.
    • Crossing the Border: The Interdependence of Foreign Policy and Racial Justice in the United States

      Saito, Natsu (2014-01-27)
      Scholars, social activists, and policy makers often regard the United States' foreign policy as it relates to human rights and its domestic policy with respect to race as distinct areas, separated by the nation's border. Although this border exists geographically, through the assertion of jurisdiction, and in the recognition of citizenship, is there really a border between our foreign and domestic policy in these matters? The U.S. government is often criticized for failing to comply with international human rights law and for perpetuating economic and racial inequality in its foreign policy. Racism within the United States is recognized as pervasive and virulent, but generally considered unrelated to U.S. foreign policy. For the most part, scholars and activists concentrate on either the international or the domestic realm, reflecting a widely accepted assumption that the problems confronted in each are distinct. There is, however, evidence that this border between the two is much more permeable than contemporary legal analyses or social attitudes suggest.
    • Treaty, Custom and the Cross-fertilization of International Law

      Sands, Philippe (2014-01-27)
      The title of this timely and innovative new journal raises basic questions about the connection between human rights norms and development norms. What is their hierarchical relationship? How does the content of one inform that of the other, if at all? Is the international legal order a 'bric-a-brac" or a "system"? Is it an aggregate of disparate elements haphazardly brought together or a systematically organized and coherent structure? If the latter, what organizing techniques, if any, exist to assure hierarchy? In this Article, I set out some introductory thoughts on the relationship between and the hierarchy among different norms of international law. To be dear, the subject of relationship and hierarchy has several aspects. One is the general relationship between different sources of legal obligation, in particular between treaty and custom. A second is the relationship between different subject matter areas of international law: For example, which prevails in a conflict between treaty norms of the law of development and the law of human rights, or between the law of international trade and the law of the environment? A third aspect merges the first two: What is the relationship between a treaty norm arising in one area of international law and a customary norm arising in another? In this paper, I focus on the third issue, which has received surprisingly little attention, while touching also on the first aspect.
    • Quis Custodiet Ipsos Custodes?:t Why and How UNHCR Governance of "Development" Refugee Camps Should be Subject to International Human Rights Law

      Wilde, Ralph (2014-01-27)
      [I]t has become increasingly clear that the principle of responsibility must now be used in a more inclusive manner, applied not only to states but also to all of those other actors which play a significant part in national and international affairs: rebel groups, political leaders and parties, warlords and military factions, religious bodies and commercial enterprises, to give just a few examples.
    • The UN Environment Programme: Thinking Globally, Retreating Locally

      Heimer, Matthew (2014-01-27)
      The United Nations Environment Programme (UNEP) marked its 25th anniversary last December in a state of disarray. UNEP is arguably the world's most important international environmental agency. No other organization can match its track record of success in coordinating the negotiation and implementation of international environmental treaties. But since early 1997, UNEP has been on the brink of bankruptcy and institutional extinction; and now, facing pressure to reform, the organization is likely to pursue policies that would aggravate tensions over environmental policy between the industrialized North and the developing South. According to its critics, UNEP has drastically overextended its mandate over the past decade by failing to set clear priorities and by undertaking missions and projects for which it lacks the resources and expertise to implement. In so doing, the organization has drained both its coffers and its credibility, while confidence in the agency has eroded among the richer nations that fund most of its operations. At a time when the United Nations (UN) in general is under tremendous pressure to downsize and reduce costs, UNEP has come to be seen by many donor governments as a wasteful and ineffective bureaucracy.
    • NGO Proposals for an Asia-Pacific Human Rights System

      Wilde, Ralph (2014-01-27)
      The Asia-Pacific region is the only area of the world without. a human rights regime. This piece evaluates current NGO proposals. Since 1982, regional workshops have been held between Asia- Pacific state representatives under the aegis of the United Nations. The most recent was held in Tehran from February 28 to March 2 1998. At that meeting it was agreed that the first building block for a regional regime would be a technical cooperation program to further develop national human rights structures and education programs. This approach would help to foster local human rights protection, and explore the possibilities of regional co-operation by identifying the issues of concern common to the countries involved.
    • Understanding "Hostage-Diplomacy": The Release of Wei Jingsheng and Wang Dan

      Osofsky, Hari (2014-01-27)
      China recently has released two of its most prominent dissidents, Wei Jingsheng and Wang Dan, into exile in the United States. The releases corresponded to major United States-Chinese diplomatic initiatives without broader gains in allowing political dissent, causing a number of commentators to refer to them as "hostage-diplomacy."' This New Development explores what it means to think of the releases in this way and the implications for future strategic engagement with China.
    • Implementing Human Rights in ASEAN Countries: "Promises to keep and miles to go before I sleep"

      Thio, Li-ann (2014-02-18)
      Human rights have not figured prominently on the agenda of the nine-member Association for Southeast Asian States (ASEAN) since its inception in 1967. Rather, the pursuit of regional security and cooperative measures for promoting trade and economic development have been paramount ASEAN objectives. By" insisting on a strict separation between human rights policy and trade issues, ASEAN has marginalized human rights and has consistently opposed the use by foreign states or international organizations of economic or other forms of pressure to induce change in human rights practices. ASEAN member states display an antipathy towards critical scrutiny of their human rights records-for example, in reports from the United States Department of State or nongovernmental organizations (NGOs) like Amnesty International and Human Rights Watch. ASEAN's general response has been that this constitutes foreign intervention in domestic matters, which undermines state sovereignty and violates -the sacred principle of nonintervention in internal affairs. Within the context of ASEAN itself, an emphasis on harmony, compromise and consensus in ordering interstate relations helps to preserve a fraternal silence with respect to the human rights violations of member states. ASEAN policy (or lack thereof) towards human rights has been one of reticence and nonengagement.
    • Court Performance Around the World: A Comparative Perspective

      Dakolias, Maria (2014-02-18)
      Many countries around the world are undertaking legal and judicial reforms as part of their overall development programs. This has resulted from growing recognition that economic and social progress cannot sustainably be achieved without respect for the rule of law, democratic consolidation, and effective human rights protection;' each of which requires a well-functioning judiciary that can interpret and enforce the laws equitably and efficiently. An effective judiciary is predictable, resolves cases in a reasonable time frame, and is accessible to the public. Many developing countries, however, find that their judiciaries advance inconsistent case law and carry a large backlog of cases, thus eroding individual and property rights, stifling private sector growth, and, in some cases, even violating human rights. Delays affect both the fairness and the efficiency of the judicial system; they impede the public's access to the courts, which, in effect, weakens democracy, the rule of law and the ability to enforce human rights.
    • The Principle of Discrimination in 21st Century Warfare

      Schmitt, Michael (2014-02-18)
      In this article, Professor Schmitt addresses changes in military technology and the implications of these changes for the humanitarian law of war, with particular focus on the principle of discrimination. Evolution in the machinery of warfare can be expected to improve the precision with which objects may be targeted. At the same time, this evolution may complicate considerations of what constitutes a legally permissible target. As technologically advanced militaries become increasingly interdependent with the infrastructure of civilian life, the line between legal military objectives and protected civilian objects may become blurred. The international legal questions posed by this change will be particularly thorny in the case of warfare between technologically advanced military powers and less developed nations. In the short term, technologically disadvantaged States might have incentives to support a broad definition of legally permissible targets. Alternately, they might support a subjective standard, in which the technological capacity of a belligerent State partially determines its legal obligations. Professor Schmitt argues, however, that such an expansion of permissible military objectives would not only disserve the goals of humanitarian law, but ultimately prove disadvantageous to all States.
    • A Comparative and International Law Perspective on the United States (Non)Compliance with its Duty of Non- Refoulement

      Keller, Kathleen (2014-02-18)
      If there are two groups of individuals who currently have very little support among the American people and legislature, it is surely immigrants and criminals. As a result, the brunt of the 1996 immigration reforms fell hardest upon those with criminal backgrounds. The campaign to reform the immigration laws was sold to the American public as a campaign to expel "undeserving aliens," chief among them the so-called "criminal aliens.' However, this politically expedient reform was executed at the expense of the United States obligation of non-refoulement under the Convention Relating to Refugees. As a result, untold numbers of refugees are now eligible to be returned to certain death and imprisonment because of minor or unproven criminal histories. Every such instance of refoulement will constitute a violation of international law.
    • Preface to the Quito Declaration on the Enforcement and Realization of Economic, Social, and Cultural Rights in Latin America and the Caribbean

      Jochnick, Chris; Petit, Javier (2014-02-18)
      Following many years of struggle against repression and dictatorship, Latin America's human rights movement faces a host of new challenges in the form of poverty, inequality, and social marginalization. Long the province of labor and social movements, these issues are increasingly assuming the banner of human rights and, in recent years, Latin America has seen a flurry of activity specifically focused on economic, social, and cultural rights (ESCR).
    • State of Necessity as a Justification for Internationally Wrongful Conduct

      Boed, Roman (2014-02-18)
      In this Article I examine the concept of necessity as an excuse or justification for a State's breach of an international legal obligation from a practical and theoretical perspective. I will show that while the concept of a state of necessity as understood by the International Law Commission (ILC) and the International Court of Justice (ICJ) may be applicable in respect of non-fulfilment by States of human rights obligations, the balancing test in the provisionally-adopted text of article 33 of the ILC's Draft Articles on State Responsibility6 is designed to weigh inconsistent interests of two States rather than interests of a State against interests of a community of States and is thus ill-suited for the context of erga omnes and multilateral obligations that human rights norms entail. As a consequence, necessity, as expressed in the current text of article 33, could too easily allow a State to excuse its non-compliance with international human rights obligations in situations of threat to an essential interest of the State. That is to say, by way of a practical example, that a State could close its borders to a large-scale influx of asylum-seekers and excuse its non-compliance with its international duty not to expose asylum-seekers to the risk of persecution by asserting that the influx would threaten an essential State interest, such as the preservation of internal order and security.
    • Toward the African Court on Human and Peoples' Rights: Better Late Than Never

      Udombana, Nsongurua (2014-02-18)
      The establishment of an African Court on Human and Peoples' Rights is a landmark development in the field of international human rights law. On June 9, 1998, in Ouagadougou, Burkina Faso, the Assembly of Heads of State and Government of the Organization of African Unity (OAU) adopted a Protocol to the African Charter on Human and Peoples' Rights ("Protocol"). The Protocol, signed by thirty of the fifty-two Member States of the OAU on the same day, establishes an African Court on Human and Peoples' Rights to supplement the existing protections afforded by the African Commission on Human and Peoples' Rights. The text of the Protocol was received with enthusiasm by representatives of African governments attending the meeting and euphoria by the sectors of civil society that have long pressed for, and long awaited, its adoption. The Protocol, the product of the collective efforts of civil society at the national, regional, and international levels, opens the door to more effective human rights protection in the African region. With its adoption, Africa joins the ranks of the European and Inter-American regional human rights systems in providing judicial guarantees at the regional level for the protection of human rights in the continent.
    • Guatemala's Peace Accords in a Free Trade Area of the Americas

      Harten, Gus (2014-02-18)
      Guatemala was officially "at peace." The last of twelve peace accords had been signed. putting in place a broad mandate for reform to address many of the historical grievances of the country's marginalized and impoverished majority. Real hopes were born that a time of democracy and progressive change had finally arrived in Guatemala, after thirtysix years of terrible conflict. Alongside the internal peace process, Guatemala has taken part in negotiations toward a hemispheric free trade zone, the Free Trade Area of the Americas (FTAA), along with the thirty-three other countries that launched the project in Miami in 1994. Their declared purpose in pursuing an FTAA is a laudatory one. According to the opening words of the Miami Declaration: "The elected Heads of State and Government of the Americas are committed to advance the prosperity, democratic values and institutions, and security of our Hemisphere. For the first time in history, the Americas are a community of democratic societies."
    • The World Bank's Draft Comprehensive Development Framework and the Micro-Paradigm of Law and Development

      Blake, Richard (2014-02-18)
      In January 1999, World Bank President James D. Wolfensohn circulated a proposal for a "Comprehensive Development Framework" (CDF) to World Bank personnel. Building upon Wolfensohn's previous policy statements, as well as consultative meetings held worldwide with various international development actors, the CDF calls for a new "holistic approach to development." It seeks a better balance in policymaking by highlighting the interdependence of all elements of development-social, structural, human, governance, environmental, economic, and financial. It emphasizes partnerships among governments, donors, civil society, the private sector, and other development actors. Perhaps most important, [it puts] the country.., in the lead, both "owning" and directing the development agenda, with the Bank and other partners each defining their support for their respective plans. This New Development examines the CDF and its implications for international development. Specifically, using microdevelopment theory, including micro-law and development theory, it analyzes the CDF and compares it to the Bank's previous approaches to development. On its face, the CDF appears to give the poorest of the poor more of a voice in formulating their countries' development policies. Examination of the implementation of the CDF in several pilot countries, however, reveals that it is most often being used as a tool to improve relationships between those countries' governments and international development donors; the voices of those countries' citizens in poverty, as well as other elements of civil society, are largely being ignored. According to micro-law and development theory, unless countries pay attention to civil society, especially the poorest of the poor, development policy is doomed to fail. To that end, this New Development encourages civil society, and especially non-governmental organizations that represent the poor, to use the CDF as a means of getting to the table and assuming their appropriate place as full participants in the formulation of development policy.
    • Debt Relief in 1999: Only One Step on a Long Journey

      Friedman, Eric (2014-02-18)
      According to a top official in the Clinton Administration, the 1999 Enhanced Heavily Indebted Poor Countries Initiative, set forth by the world's Group of Seven (G7) leading industrialized nations in Cologne, Germany in June 1999, would have "an enormous impact on poorer countries, perhaps more than any other single action taken by the developed countries at any time." A United Nations Special Rapporteur on the effects of foreign debt on the full enjoyment of economic, social, and cultural rights and an independent expert on structural adjustment had a markedly different opinion of the same initiative: "As it stands now, [this] initiative is grossly inadequate.. . ."- Despite their sharply contrasting views, these commentators would doubtless all agree on the gravity of the subject of the initiative: the large debts that many impoverished developing countries owe to wealthy countries and international financial institutions (IFIs). Indeed, while the world's poorest countries spend tens to hundreds of millions of dollars-and in several cases, over one billion dollarsannually servicing their debts, large segments of their populations remain without access to minimal health care, education, nutrition, clean water, adequate shelter, and other human needs. Under the International Covenant on Economic, Social and Cultural Rights (ICESCR), States Parties are legally obligated to guarantee access to minimum essential levels of these basic human rights, and to use all available resources to progressively achieve full enjoyment of such rights for all. By continuing to insist that poor States use their scarce resources for debt service payments, rather than for improved access to health care, education, food, and basic shelter for their impoverished populations, the international community becomes complicit in the wide-scale violation of human rights.
    • Human Rights and Armed Conflict-The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case

      Stephens, Dale (2014-02-18)
      The Advisory Opinion of the International Court of Justice in the 1996 Nuclear Weapons Case assessed the legitimacy of the threat or use of nuclear weapons in an armed conflict. This Article examines the Opinion's contribution to a contemporary understanding of the law of armed conflict. It argues that the Court has provided an added weighting for humanitarian standards when assessing the legitimacy of military actions. This "weighting" significantly modifies the legitimate application of military force, particularly under the principle of proportionality. While the Advisory Opinion ostensibly gave formal primacy to the law of armed conflict, the reasoning adopted by the Court will enable the opposite to occur; namely, it will promote human rights in the interpretation of the law of armed conflict. Additionally, the Court's formal recognition of human rights standards in armed conflict has a significant impact on rights enjoyed by a Government's own military members.
    • Promoting Universal Human Rights: Dilemmas of Integrating Developing Countries

      Monshipouri, Mahmood (2014-02-18)
      It is within the context of globalization that developing countries' receptivity as well as resistance to global human rights standards must be understood. This Article suggests that an effective promotion of human rights in this context requires a deeper understanding of its effects on the most vulnerable people, and that to the extent that globalizing human rights standards overlook the complexity of local conditions and constraints, the promotion of the universal view of human rights will do little to ensure their realization in the developing world.