• 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.
    • 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.
    • A More Possible Meeting: Initial Reflections on Engaging (As) the Oppressor

      Soekoe, Nicola (2019-07-26)
      We have chosen each other and the edge of each other’s battles the war is the same if we lose someday women’s blood will congeal upon a dead planet if we win there is no telling we seek beyond history for a new and more possible meeting. Audre Lorde, excerpt of “Outlines” In the poem included above, civil rights poet, activist, and revolutionary Audre Lorde reminds us of the agency we have in deciding whether to embark on the paradigm-shifting project of seeing and choosing each other across difference and creating the conditions for a “more possible meeting.” Lorde is speaking to a profound shift that needs to take place within the consciousness of every person in order for contact across difference to even hold the potentiality of genuine (and therefore revolutionary) connection. In “Age, Race, Class and Sex: Women Redefining Difference,” the essay fromwhich I drew the poem, Lorde sets out as a prerequisite to this exchange the task of dismantling “that piece of the oppressor which is planted deep within each of us, and which knows only the oppressors’ tactics, the oppressors’ relationships.”
    • 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.
    • A Punitive Bind: Policing, Poverty, and Neoliberalism in New York City

      Kaplan-Lyman, Jeremy (2014-02-18)
      Narrowly conceived, neoliberalism is a system of economic ideas and policy initiatives that emphasize small government and market-based solutions to social and economic problems. Adopted in response to the fiscal, welfare and racial crises of the Keynesian state, neoliberalism has become the dominant governing principle in the United States over the last forty years. A growing body of literature has shown how the rise of neoliberalism has underwritten the massive expansion of the American criminal justice system and the growth of its incarceral arm. Yet theorists of neoliberalism have largely ignored how the rise of neoliberalism has affected policing practices and, in turn, have failed to consider the role that police play in the neoliberal state. This Note considers policing practices and policies in New York City under the rise of neoliberalism. It argues that the rise of neoliberalism has led to significant and lasting changes in the accountability structures, enforcement priorities, and policing strategies and tactics of New York City's policing apparatus. While new approaches to policing have been heralded by some as making the NYPD internally more efficient and more effective at fighting crime, this Note contends that the adoption of neoliberal policing techniques cannot be evaluated without a broader account of the historical, social, political and economic contexts in which they are implemented. An analysis of policing within these broader contexts reveals that there is good reason to be concerned about many facets of neoliberal policing, which include shifting accountability structures, the policing of disorder and the deployment of stop-and-frisk policing. Collectively, these neoliberal policing practices constitute the punitive governance of disproportionately marginalized communities, which erodes police legitimacy and may ultimately make poor people and people of color less secure.
    • Adam McBeth, Crushed by an Anvil: A Case Study on Responsibility for Human Rights in the Extractive Sector

      Nash, Lindsay (2014-02-18)
      Crushed by an Anvil leaves the reader, like the Kilwa victims, feeling rather defeated. Author Adam McBeth uses the Anvil Mining example to show that existing dispute resolution mechanisms are inadequate to resolve conflicts related to increasing foreign investment by multinational enterprises. His description of each forum's refusal to provide redress offers insight into the political motivations underlying each decision, though the analysis fails to offer a solution to the forum-less victims. McBeth examines the ways that various adjudicatory bodies have declined to exercise jurisdiction, but he has not adequately addressed the question of which body should decide these claims.
    • Aftershocks: Reflections on the Implications of September 11

      Reisman, W. (2014-02-18)
      The Fundamentalist conservatizers in the Islamic world who support or passively sympathize with those who are attacking us perceive themselves as under a grave threat. To assess the accuracy of their perception, we must look at what they fear. Since 1945, the international legal system, at the initiative of leading Western modernizing states, has established a set of ground rules of political and other social organization based upon what it considers to be universally valid and self-evident principles. These ground rules are embodied in the Universal Declaration of Human Rights. Although the United Nations Charter purported to reserve the domestic jurisdiction of states from international concern, Western governments and the human rights lobby have vigorously diminished the scope of domestic jurisdiction so that it no longer buffers the internal legal arrangements of statesfrom the application of international human rights law. The values we designate as "universal" are, indeed, "universalizable," in contrast with tribal or other ethnically or religiously restrictive values that limit their reach and confine their benefits to members of a particular group. But "universalizable" values are not necessarily universally held. Nor are they "natural."
    • 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.
    • An Introduction to Corporate Social Responsibility in the Extractive Industries

      Smith, Gare (2014-02-18)
      Many congratulations to the Board and staff of the Yale Human Rights & Development Law Journal for hosting this timely and important Symposium on Corporate Social Responsibility in the Extractive Industries, and for devoting this volume of the Journal to an in-depth analysis of the key issues addressed in the Symposium. This Preface is designed to paint a broad Corporate Social Responsibility (CSR) backdrop for this special volume and to provide a context for the more detailed articles that follow. To that end, it defines the concept of CSR, particularly as it relates to the extractive industries, and identifies the primary business drivers behind it. In addition, this introduction highlights some of the key CSR issues facing the extractive industries today and in the coming years, and previews how the succeeding articles may help to resolve them.
    • An Oppressor Engaging Herself

      Gale, Leanne (2019-07-26)
      A few weeks ago, I was honored to participate in a conversation on “Engaging the Oppressor,” along with freedom fighters from around the world. As they shared their pain, trauma, and steadfast determination, I felt deeply grateful to learn from their brilliance. If you have not yet read their reflections, please turn the page and read them first. But as I sat down to share some reflections, it did not feel right for me to comment on how members of oppressed groups should engage the oppressor. In the context of Palestine, I am the oppressor: a white Jewish woman, raised in mainstream American Jewish and Zionist institutions, with a long history of travel to and support for Israel. Much of my privilege and power has come at the expense of Palestinian freedom. I decided that the best use of this space might be to share my process of engaging myself. The following text is my attempt to do that. My hope is that this text will serve liberation movements in some small way in the years to come.
    • Answering the Millennium Call for the Right to Maternal Health: The Need to Eliminate User Fees

      Hall, Margaux; Ahmed, Aziza; Swanson, Stephanie (2014-02-18)
      Complications during childbirth and pregnancy are a main source of death and disability among women of reproductive age. Approximately 536,000 women die from pregnancy-related complications each year. Developing countries suffer most profoundly, accounting for 99% of deaths. The world's nations, by endorsing U.N. Millennium Development Goals, recognized that most deaths are preventable; they have pledged to reduce maternal mortality by 75% by 2015. This Article assesses the barriers presented by user fees - formal charges for health services still charged by many countries - to the attainment of MDGs. It shows that user fees hamper healthcare access, particularly in emergencycare settings, and fail in meeting their intended purposes of generating funds and improving equity, quality and decentralization of health care. The Article analyzes fees' adverse impact through a human rights lens that privileges each woman with an assessment of her health, unlike the MDGs which assess aggregate improvements and benchmarks. Finally, the Article explores alternatives to user fees, including universal health insurance schemes, tax schemes, and debt forgiveness programs and policies. It offers a guiding framework for assessing health financing systems - a framework that is centered on the needs of the poorest and most marginalized community members and that emphasizes accountability.
    • Are We Violating the Human Rights of the World's Poor?

      Pogge, Thomas (2014-02-18)
      Answering the title question requires explicating its meaning and then examining the empirical evidence. The first task is begun in this introductory Part I, which gives a rough account of the two groups whose relation is to be queried: the world's poor and the "we" addressed in the piece. Part II then proposes a specific understanding of what it means to violate human rights. I will argue that a human rights violation involves non-fulfillment of human rights as well as a specific causal relation of human agents to such non-fulfillment. Importantly, this understanding of a human rights violation includes not only interactional violations (perpetrated directly by human agents) but also institutional violations (caused by human agents through the imposition of institutional arrangements). Based on the explication of the question in Parts I and II, Part III goes on to consider some of the evidence relevant to answering the question. This evidence favors the conclusion that there exists a supranational institutional regime that foreseeably and avoidably produces massive human rights deficits. By collaboratively imposing this institutional scheme, we are indeed violating the human rights of the world's poor.
    • Are We Violating the Human Rights of the World’s Poor? Responses to Four Critics

      Pogge, Thomas (2014-12-02)
      Stimulated by the challenging reactions of four critics, this essay clarifies and elaborates a view I had laid out in an earlier issue of this Journal. I will begin with a brief summary account and defense of my main thesis and will then expand on various aspects of it by engaging my critics one by one.
    • Are We Violating the Human Rights of the World’s Poor? Responses to Four Critics; Appendix A: Comments by Rob Reich

      Pogge, Thomas (2014-12-02)
      Stimulated by the challenging reactions of four critics, this essay clarifies and elaborates a view I had laid out in an earlier issue of this Journal. I will begin with a brief summary account and defense of my main thesis and will then expand on various aspects of it by engaging my critics one by one.
    • Are We Violating the Human Rights of the World’s Poor? Responses to Four Critics; Appendix B: Comments by Alistair M. Macleod

      Pogge, Thomas (2014-12-02)
      Stimulated by the challenging reactions of four critics, this essay clarifies and elaborates a view I had laid out in an earlier issue of this Journal. I will begin with a brief summary account and defense of my main thesis and will then expand on various aspects of it by engaging my critics one by one.
    • Are We Violating the Human Rights of the World’s Poor? Responses to Four Critics; Appendix C: Comments by Richard Arneson

      Pogge, Thomas (2014-12-02)
      Stimulated by the challenging reactions of four critics, this essay clarifies and elaborates a view I had laid out in an earlier issue of this Journal. I will begin with a brief summary account and defense of my main thesis and will then expand on various aspects of it by engaging my critics one by one.
    • Are We Violating the Human Rights of the World’s Poor? Responses to Four Critics; Appendix D: Comments by Ann Cudd

      Pogge, Thomas (2014-12-02)
      Stimulated by the challenging reactions of four critics, this essay clarifies and elaborates a view I had laid out in an earlier issue of this Journal. I will begin with a brief summary account and defense of my main thesis and will then expand on various aspects of it by engaging my critics one by one.
    • Beyond '"Crimigration"a nd the Civil- Criminal Dichotomy -Applying Mathews v. Eldridge in the Immigration Context

      Nadadur, Ramanujan (2014-02-18)
      Policies and regulations from the past decade underscore the need for strong constitutional safeguards in removal proceedings, which are administrative proceedings where an Immigration Judge adjudicates whether a noncitizen should be deported from the United States under the Immigration and Nationality Act (INA). Deportation has accelerated; the Obama Administration has removed nearly 400,000 noncitizens in each of the last three years. Congress and the Executive have limited appellate review of final orders of removal and sharply curtailed avenues of discretionary relief. Immigration detention has increased significantly; Immigration and Customs Enforcement (ICE) detained a record total of 384,000 noncitizens in 2009, and 363,000 noncitizens in 2010. Immigration law also has become more complex, with a maze of difficult regulations that govern the forms of relief available at different stages of the removal process. Recognizing recent changes in immigration enforcement and the severity of deportation, this Note suggests that some groups of noncitizens in removal proceedings ought to have heightened procedural safeguards as a matter of constitutional law.
    • Beyond the Rhetoric: Strategies for Effecting Change in Women's Human Rights'

      Nearly twenty years have passed since the entry into force of the Convention on the Elimination of All Forms of Discrimination against Women (The Convention). Heralded as the most progressive international instrument on women's rights, the Convention drew worldwide attention to a long-neglected area within the human rights movement. Parting strategies with previous international instruments of general human rights protection, the Convention envisioned a broader notion of equality between the sexes, beyond the norm of anti-differentiation. It aspired to eliminate the subordination of women in political, economic, legal, and cultural spheres, and obliged states to craft systemic responses to ensure that equality.
    • Bilateral Agreements and Fair Trade Practices: A Policy Analysis of the Colombia- U.S. Free Trade Agreement (2006)

      Fandl, Kevin (2014-02-18)
      This Article brings to the attention of those public servants involved in the design and negotiation of free trade agreements between the United States and developing countries, such as Colombia, the potential benefits and drawbacks of negotiating in a bilateral forum. Rather than critiquing the free trade agreement for its particular provisions, this Article examines the U.S. policy of negotiating bilaterally with developing countries as opposed to multilaterally in the world trade system and what effects such an approach might have on the economic development of the latter. Using an incremental policy analysis, the Article critiques the bilateral approach in terms of economic development and fair trade negotiations using the recent Colombia-U.S. trade agreement as a case study. The Article concludes that a bilateral approach that is disconnected from a broader multilateral context may be detrimental to developing countries and recommends increased oversight of such agreements by the World Trade Organization to ensure a higher degree offairness.