On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory

38 Pages - Posted: 5 Feb 2019 - Last revised: 25 May 2019

Samuel Moyn

Yale University

Date Written: January 20, 2019

Abstract

This symposium piece for the "Vanderbilt Journal of Transnational Law" is primarily a reading of Felix Frankfurter's dissent in West Virginia State Board of Education v. Barnette (1943), attempting to draw some lessons from his theory of majoritarian rights for our own moment of crisis for the human rights movement. The situations then and now are only partly comparable, but Frankfurter's call for allowing democratic processes to self-correct even when elite shortcuts beckon -- including when it comes to defining and protecting rights - provides food for thought.

Note: This is a first draft; comments welcome.

MOYN, Samuel. On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory (January 20, 2019). Disponível em: <https://ssrn.com/abstract=3319515>. Acesso em: 13 jun. 2019.

In Praise of Jus Cogens' Conceptual Incoherence

McGill Law Journal, Forthcoming

25 Pages Posted: 21 Sep 2018

Jens David Ohlin

Cornell University - School of Law

Date Written: September 8, 2018

Abstract

The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.

Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.

One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

Referência:
Suggested Citation:
OHLIN, Jens David. In Praise of Jus Cogens' Conceptual Incoherence (September 8, 2018). McGill Law Journal, Forthcoming. Disponível em: <https://ssrn.com/abstract=3246417>. Acesso em: 03 out. 2018.

Resisting the Inter-American Human Rights System

Yale Journal of International Law, Forthcoming

67 Pages Posted:   

Jorge Contesse

Rutgers Law School

Date Written: September 13, 2018

Abstract

Questions of scope of authority and enforcement are ripe at what is an increasingly critical time for international human rights law. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American states accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of states and the individual, creating a kind of inter-American constitutionalism.

Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts, in particular, have become less receptive, and at times even opposed to what they perceive as a too aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relation with member states; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.

Keywords: human rights, Inter-American Court of Human Rights, Latin America, backlash,

Referência
CONTESSE, Jorge. Resisting the Inter-American Human Rights System (September 13, 2018). Yale Journal of International Law, Forthcoming. Disponível em: <https://ssrn.com/abstract=3248979>. Acesso em 18 set. 2018.

Caso Fogarty versus Reino Unido e Irlanda do Norte

Elaboração: Abrahão de Lima, acadêmico de Direito/UEMA.

O caso Fogarty versus Reino Unido e Irlanda do Norte, julgado pela Corte Europeia de Direitos Humanos em 5 de Novembro de 2000 (juntamente ao também emblemático caso Al-Adsani versus Reino Unido), em face da demissão da senhora Fogarty de suas funções na Embaixada Estadunidense em Londres baseada, alegadamente, em discriminação sexual, quebrantando, desta maneira, o Ato de Discriminação Sexual de 1975 e a proibição de discriminação no artigo 26 do Pacto de Direitos Sociais e Políticos das Nações Unidas. O Tribunal Industrial rejeitou seus pedidos baseado na Imunidade de Jurisdição, fato este que ensejou seu pedido junto ao Tribunal de Estrasburgo, com base jurídica no direito ao acesso à Justiça contido no artigo 6 § 1 do Pacto. A Corte, no entanto, rejeitou novamente seus pedidos, justificando que os atos da Embaixada Estadunidense foram meramente de jus imperii, assim não sendo uma hipótese que ensejaria exceção Imunidade de Jurisdição, ademais, a Corte decidiu que não houve quebrantamento do artigo 6 § 1do Pacto de Direitos Sociais e Políticos das Nações Unidas. Uma parte interessante desta decisão é o voto dissidente do Juiz Loucaides versando sobre direitos humanos e as violações que, aceitando as alegações da senhora Fogarty, haviam ocorrido e deixando implícita a necessidade de revisão da aplicabilidade do Ato de Imunidade Jurisdicional. 

Fogarty versus United Kingdom and North Ireland

The case Fogarty versus United Kingdom and North Ireland held by the European Court of Human Rights on 5 November 2000, jointly with the case Al-Adsani v. the United Kingdom, in face of a dismissal of her functions at the American Embassy in London, allegedly, based on sex discrimination, breaching, though, the Sex Discrimination Act of 1975 and the prohibition of discrimination of the Article 26 of the UN Covenant on Civil and Political Rights. The Industrial Tribunal, based on the State Immunity denied her pleas and then she was able to proceed to Strasbourg Tribunal based on the breach of the Article 6 § 1 of the Convention, which is about the access to the court, but as a decision the Court rejected once again her pleas based on the fact the acts of American embassy were merely jus imperii, so not a hypothesis to exception to State Immunity, and, in addition, the Court has decided that there was not violation to the Article 6 § 1 of the Convention. An interesting part of this decision is the dissenting opinion of Judge Loucaides based on the human rights and the violations committed, leaving at that moment implicit the need of reviewing the appliance of the State Immunity Act.

Fonte:

EUROPEAN COURT OF HUMAN RIGHTS. Case of Fogarty v. The United Kingdom. Application n. 37112/97, Judgment of 21 November 2001. Disponível em: <http://hudoc.echr.coe.int/eng?i=001-59886>. Acesso em: 03 mar. 2018.

International Law in the Post-Human Rights Era

96 Texas L. Rev. (2017 Forthcoming)

69 Pages Posted: 7 Apr 2017 

Ingrid B. Wuerth

Vanderbilt University - Law School

Date Written: April 6, 2017

Abstract

International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what might be termed the “golden-age” of international human rights law is over, at least for now. Whether measured in terms of the increasing number of authoritarian governments, the decline in international human rights enforcement architecture such as the Responsibility to Protect and the Alien Tort Statute, the growing power of China and Russia over the content of international law, or rising nationalism and populism, international human rights law is in retreat. 

The decline offers an opportunity to consider how human rights changed, or purported to change, international law and how international law as a whole can be made more effective in a post-human rights era. This article is the first to argue that international human rights law – whatever its much disputed benefits for human rights themselves – appears to have expanded and changed international law itself in ways that have made it weaker, less likely to generate compliance, and more likely to produce interstate friction and conflict. The debate around international law and human rights needs to be reframed to consider these costs and to evaluate whether international law, including the work of the United Nations, should focus on a stronger, more limited core of international legal norms that protects international peace and security, not human rights.

WUERTH, Ingrid B. International Law in the Post-Human Rights Era (April 6, 2017). 96 Texas L. Rev. (2017 Forthcoming). Disponível em: <https://ssrn.com/abstract=2947771>. Acesso em: 10 abr. 2017.

Immunity from Civil Jurisdiction: Where Do We Go from Here? Assessing the Relevance of Recent Opposing Trends in the Conceptualisation of State Immunity

European Society of International Law (ESIL) 2016 Annual Conference (Riga)

Stefano Dominelli

University of Genoa, Dep. Political Science

Date Written: January 31, 2017

33 Pages

Posted: 6 Feb 2017 

Abstract

Traditional rules concerning the immunity of States from jurisdiction are currently challenged by Italian domestic courts, seeking the possibility to provide exceptions to foreign immunity based upon the gravity of the foreign State’s conduct and the consequences on human rights following recognition of State immunity. Such a trend is opposed to others that – for example – recognize a blanket of immunity to international organisations even where these do not establish internal procedures to adjudicate their conducts. The aim of the present work is to reconstruct the opposing emerging trends so to reflect on their value in the promotion of new rules, and to determine their consequences in terms of “crisis of the law of State immunity”.

DOMINELLI, Stefano. Immunity from Civil Jurisdiction: Where Do We Go from Here? Assessing the Relevance of Recent Opposing Trends in the Conceptualisation of State Immunity (January 31, 2017). European Society of International Law (ESIL) 2016 Annual Conference (Riga). Disponível em: <https://ssrn.com/abstract=2911994>. Acesso em: 04 abr. 2017.

Yale Law School Global Constitutionalism Seminar, E-Book Volumes 1-5, 2016

Judith Resnik , Yale University - Law School; Rosalie Silberman Abella , Government of Canada - Supreme Court of Canada; Marta Cartabia , Constitutional Court of Italy; Manuel Cepeda-Espinosa , Constitutional Court of Colombia; Brenda Hale , Government of the United Kingdom - The Supreme Court; Amy Kapczynski , Yale University - Law School; Helen Keller , European Court of Human Rights; Harold Hongju Koh , Yale Law School; Douglas A. Kysar , Yale University - Law School; Douglas NeJaime , University of California, Los Angeles (UCLA) - School of Law; Robert Post , Yale Law School; András Sajó , European Court of Human Rights; Reva Siegel , Yale University - Law School; Patrick Weil , Yale University - Law School; John Fabian Witt , Yale University - Law School

2016

Yale Law School Global Constitutionalism Seminar, E-Book Volumes 1-5, 2016 

UCLA School of Law, Public Law Research Paper No. 16-56

Yale Law & Economics Research Paper No. 566

Abstract:

For the first time, five volumes of constitutional case law and commentary provided for the seminar on Global Constitutionalism (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School have been published to enable open access. The five chapters in the 2016 Volume, Acts of State, Acts of God, address Sovereign Immunity of Foreign States and Their Officials (exploring when and how courts respond to claims of horrific wrongdoing conducted in the name of the state); Prisons, Punishments, and Rights (focusing on the relationship between the law of sentencing and the law of prisons, including why and when courts have a role to play in deciding the forms that punishment takes); Constitutional Emergencies (tracking debates about the judicial role in responding to crises in the environment, public health, the economy, and when proposing to exile citizens); Religious Accommodation and Equality (examining claims that religious belief should permit deviation from legal duties required of other members of the polity through generally applicable laws); and Blasphemy and Religious Speech (evaluating how commitments to freedom of expression either constrain or license state responses to blasphemy, defined as speech that violates the dignity of God and more recently speech that violates the dignity of religion and religious groups).

Also just published is the volume, The Reach of Rights, focusing on the crossing of borders — by migrants searching for safety, by internet technologies disseminating information, by governments seeking to enhance national security, and by courts analyzing legal claims and crafting remedies. Its chapters include Migrants, Citizens, and Status (with cases addressing claims of non-nationals challenging the power of nation-states to make migration a crime; to disrupt citizen-families through deportation; to link access to health, welfare, and employment to citizenship status; and to discriminate in the distribution of benefits among kinds of migrants); Constitutional Rights to State-Subsidized Services (exploring governments’ relationship to individuals in the context of “social rights” and individuals asking courts to mandate that governments provide services as a constitutional imperative); The EU, the ECHR, Constitutional Pluralism, and Federations (reviewing the Court of Justice of the European Union’s (CJEU’s) 2014 ruling that the draft European Union (EU) accession agreement to the European Convention on Human Rights was not compatible with EU law and more generally issues of constitutional pluralism and the interactions among courts in federated and quasi-federated states); Extraterritoriality and Human Rights (considering how fundamental rights alter the obligations of nation-states to individuals, within and beyond their borders); and Extraterritoriality, Privacy, and Security (analyzing CJEU’s 2014 ruling on “the right to be forgotten”).

A third volume, Sources of Law and of Rights, includes chapters on Surveillance and National Security (exploring how the intersection of new technologies and concerns for national security affect constitutional commitments to privacy); Religion as a Source of Law (looking at whether claims of right sourced in religion have a distinctive status in constitutional democracies); Judicial Enforcement of International Human Rights (asking about whether and how international human rights are incorporated in national and supranational jurisprudence); Equality in Democracy: Legislatures, Courts, and Quotas (exploring efforts in many jurisdictions to make good on the promise of equal citizenship through measures known as “positive action,” aiming to promote the inclusion of groups that have historically been disadvantaged); and Constitutional Constraints on the Power to Punish (considering whether and how constitutions place boundaries on sentencing decisions crafted by legislative and executive branches and imposed by judges).

The fourth volume, Governments’ Authority, takes up several interrelated questions of courts’ roles in constitutional orders. Its chapters include Unconstitutional Constitutional Amendments (with case law from many jurisdictions on how and why constitutional amendments can be “unconstitutional”); Puzzles of State Identity, Privatization, and Constitutional Authority (looking at governments’ decisions to outsource some of its activities — either to private entities or to other governments); Privatization and Regulation (presenting another aspect of the public/private mélange, namely the outsourcing of executive, legislative, and judicial functions, including policy-making, decision-making, and standard-setting); Innovation in Public Law Remedies (analyzing innovative remedies that courts have shaped in response to constitutional failures of other branches of government); and The Enforcement of International Law, (analyzing enforcement of international law and the role of courts in interpreting and implementing international obligations).

The fifth volume, Law’s Borders, raises fundamental questions about the contours and content of law in times of war and in times of peace, including which national, transnational, and international institutions have what authority to make decisions for and determine the rights of individuals. Its chapters include Targeting, Detention, and Punishment: Problems in the Relationship of War and Crime (with cases on “targeting” individuals that a country perceives to be its enemies, and exploring how parallel the rules governing the detention of opponents in war ought to be to the prosecution of criminals in peacetime); (Dis)uniformity of Rights in Federations and Unions (looking at when subnational rules — on abortion or prisoner voting, for example — are permitted to vary from the larger regime through doctrines such as the margin of appreciation); Constitutional Pluralism and Constitutional Conflicts (also looking at conflicts, tensions, and coordination among courts and the autonomy and interdependences); International Investment Law and Arbitration Amidst Global Change (reflecting on the development of diverse institutions regulating transnational actors and mediating conflicts); and Future(s): The Sustainability of Transnational, National, and International Courts (with critical commentary on the plausibility and desirability of international, transnational, and comparative law).

Number of Pages in PDF File: 461

Disponível em: <https://ssrn.com/abstract=2869857>. Acesso em: 23 jan. 2017.

Legal Pluralism As a Human Right and/or As a Human Rights Violation

Eva Brems 

Ghent University-Universiteit Gent

December 29, 2016

Forthcoming, Giselle Corradi, Eva Brems and Mark Goodale (eds), Human Rights Encounter Legal Pluralism, Oñati International Series in Law and Society, Hart Publishing (2017), ISBN: 9781849467612 

Abstract:

International human rights law is a complex multilayered reality that can be analysed in terms of legal pluralism. The paper submits that it is highly relevant for scholars of human rights law to study human rights law as an integrated whole: looking amongst others at issues of consistency and alignment as well as divergence, at gaps in the overall protection system, and at all kinds of cross-cutting or isolated dynamics.

One such inconsistency in international human rights law concerns the attitude towards the recognition of legal pluralism, in the sense of an official legal system making room for a system of ‘traditional law’, a term which I intend to cover indigenous law, customary law as well as religious law. There is one field of international human rights law (the global regime concerning the rights of indigenous peoples, as laid down in ILO Convention 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries and in the United Nations Declaration on the Rights of Indigenous Peoples (2007)) that considers such a recognition as mandatory, and non-recognition as a violation of human rights. And there is another field of international human rights law (ECtHR case law) that considers such a recognition as a violation of human rights. The paper details each of these positions before examining whether their co-existence within international human rights law is sustainable or not.

Number of Pages in PDF File: 18

Disponível em: <https://ssrn.com/abstract=2891284>. Acesso em: 2 jan. 2017.

Islamic Human Rights Law: A Critical Evaluation of UIDHR & CDHRI in Context of UDHR

Abdul Azeez Maruf Olayemi 

Department of Shariah and Law, API, University of Malaya,

Abdul Majeed Hamzah Alabi 

Al-Imam Mohammad Ibn Saud Islamic University

Ahmad Hidayah Buang 

University of Malaya (UM)

2015

JOURNAL OF ISLAM, LAW AND JUDICIARY VOLUME 1, ISSUE 3 2015, PP 27-36 ISSN 2411-4936 

Abstract:    

Human rights are undeniable natural rights that are indispensable for the upholding of human dignity and respect. In light of modern development, the importance of these entities in the life of the average human being has not just become essential, but necessary as a component for the functioning of modern society. The essential nature of such rights may be posited from the high place and importance such rights has commanded in modern society since the Universal Declaration of Human Rights (UDHR), 1948. Although incorporated in the very spirit of Islam, codification of the laws on human rights as understood in Islam had gained importance in order to primarily address the deficiencies within the UDHR, in addition to providing a framework from wherein to work regarding human rights. In this vein, this paper discusses the background and application of the two modern codified international instruments on human rights in Islam. These are the Universal Islamic Declaration of Human Rights (UIDHR), 1981, and Cairo Declaration on Human Rights in Islam (CDHRI), 1990. In conclusion, the paper recommends the adoption of the provisions of the CDHRI and UIDHR alongside the existing provisions within the UDHR in order to effectively bridge the lacuna and deficiency in the latter.

Number of Pages in PDF File: 10

Disponível em: <http://ssrn.com/abstract=2690355>. Acesso em: 23 nov. 2015.

Patents and Human Rights: The Paradox Reexamined

Rochelle Cooper Dreyfuss New York University - School of Law 

September 1, 2015

C. Geiger (ed.), Intellectual property and access to science and culture: conflict or convergence?, CEIPI-ICTSD Publication Series on Global Perspectives and Challenges for the Intellectual Property System, Issue 3, Geneva/ Strasbourg, 2016 (forthcoming) 

NYU School of Law, Public Law Research Paper No. 15-35

Abstract:

The Special Rapporteur in the field of cultural rights is tackling the difficult task of reconciling the provision in the Universal Declaration of Human Rights recognizing that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author” with the right “to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” The Copyright Report, which has already issued, maintains that the harder question is reconciling moral rights with public access interests because material interests can be satisfied in ways that do not require copyright protection. In contrast, moral rights pose a difficult question because authorial interests in the integrity of the work clash with society’s interest in commenting, parodying, and transforming the work to other needs. In this paper, which was prepared for a workshop on human rights and technological advancement, I suggest that in the scientific realm, it is material interests that are the more problematic. In this sphere, society must certainly interact with existing works — but there is less of the inventor in the work and accordingly fewer moral interests to protect. At the same time, however, society is crucially concerned with the development of future technologies; inventions that can tackle such issues as terrifying diseases, drastic climate changes, and threats of terrorism. Patent rights are not the only way — or even a sufficient way — to promote these developments. But the material interests protected by patents are important enough to require the Rapporteur to consider how to promote the right to share in scientific advancement within the framework of a globally coordinated patent regime.

Number of Pages in PDF File: 12

Disponível em: <http://ssrn.com/abstract=2654301>. Acesso em 13 set. 2015.

The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?

Tobias Lock 

University of Edinburgh School of Law
June 9, 2015

EU Constitutional Law Review, Forthcoming
Europa Working Paper No 2015/02
Edinburgh School of Law Research Paper No. 2015/18 
Abstract:

Opinion 2/13 of the European Court of Justice on the European Union’s accession to the European Convention on Human Rights has dealt a severe blow to the ambitions of the EU and the Council of Europe to put the relations between the EU and the ECHR system on a sure and formal footing. The CJEU held numerous aspects of the Draft Accession Agreement to be incompatible with the Treaties. Accession cannot therefore go ahead as planned. This article explores whether and how accession could still be achieved and if in light of the Court’s demands it can still be maintained that it would improve the human rights protection of individuals in the EU. The argument proceeds in four steps: first, the article outlines the background to Opinion 2/13 and the basic tenets of the Draft Accession Agreement; second, it explores the technical options available to overcome the hurdles to accession, such as changes to the accession agreement, reservations, unilateral declarations, and Treaty change; third, it provides a diagnosis of the shortcomings identified by the Court and proposes possible solutions; and fourth, it expresses some doubts whether in light of these proposed solutions, accession is still desirable.

Number of Pages in PDF File: 35

Lock, Tobias, The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable? (June 9, 2015). EU Constitutional Law Review, Forthcoming; Europa Working Paper No 2015/02; Edinburgh School of Law Research Paper No. 2015/18. Disponível em: http://ssrn.com/abstract=2616175. Acesso em 22 set. 2015.

Article: Lessons in Transnational Corporate Liability from Bhopal

Shruthi Ramakrishnan 

Columbia Law School

December 25, 2013

Abstract:

The paper below will examine the legal issues that surround the liability of multinational companies in third world countries by examining the Bhopal Gas Disaster incident in India. It will also evaluate the role and implications of the forum non-conveniens doctrine in transnational corporate liability cases.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2429760>. Acesso em 25 maio 2014.

Article: Truth Commissions, Human Rights and Gender. Normative Changes in Transitional Moments

Susanne Buckley-Zistel 

Center for Conflict Studies

May 2, 2014

Abstract:

Over the past two decades dealing with the past of violent conflict and repression has become a global norm. While in its initial stages many efforts to provide justice post-violence were gender-neutral — rendering them gender-blind — more recent practical yet also academic contributions challenge this assumption from a gender and/or feminist perspective. Against this backdrop the paper asks what kind of crimes are considered to be relevant in transitional justice processes and if and how redressing them bears the potential of contributing to wider social changes towards gender just societies. The paper focuses on truth commissions which, due to their specific set-up, have been successful in incorporating sexual and gender-based crimes since they are more inclined towards providing spaces for victims, thus potentially serving as a platform for women to come forward to report about abuses. It argues that there have been significant normative changes regarding the kind of crimes redressed in truth commissions, illustrating that rather than being fixed and permanent, what is considered to be right (or wrong) is changing over time.

Number of Pages in PDF File: 18

Disponível em: <http://ssrn.com/abstract=2432164>. Acesso em 25 maio 2014.

Article: The Solange Argument as a Justification for Disobeying the Security Council in the Kadi Judgments

Antonios Tzanakopoulos 

University of Oxford - Faculty of Law

November 7, 2013

KADI ON TRIAL: A MULTIFACETED ANALYSIS OF THE KADI JUDGMENT, pp. 121-134, Matej Avbelj, Filippo Fontanelli and Giuseppe Martinico, eds, Routledge, 2014 

Oxford Legal Studies Research Paper No. 6/2014

Abstract:

The Kadi judgments of the courts of the EU have received enormous scholarly attention and have had significant practical impact. And reasonably so: they are landmark decisions, with numerous implications for several crucial issues, from the relationship between different legal orders to the primacy of Security Council decisions, from the required level of protection of fundamental human rights in the application of coer-cive measures against individuals to the competence of the EU, and so forth. This brief study focuses on one particular aspect of the Kadi decisions: their employment of the Solange argument as a justification for disobeying the Security Council by not implementing its binding decisions.

Number of Pages in PDF File: 12

Disponível em: <http://ssrn.com/abstract=2364764>. Acesso em 23 mar. 2014.

Article: Four Challenges Confronting the Concept of Universal Human Rights

Eric D. Blumenson 

Suffolk University Law School

February 15, 2014

Suffolk University Law School Research Paper No. 14-6

Abstract:

This essay identifies four claims that together underpin the idea of universal human rights and elucidates the most serious challenges confronting them. Consistent with its appellation, all human rights purport to be (1) universal, in that they apply everywhere, binding every society regardless of its laws and mores; (2) human, in that they belong equally to every human being regardless of her character, social standing, or other individual attributes; (3) rights, in that they assert the priority of certain individual interests over the majority’s wishes or welfare; (4) to a specified liberty or entitlement that serves to safeguard such a fundamental interest. The aim of this essay is to render these four human rights claims and the challenges asserted against them as precisely as they can be, so that the positions of all sides are made as explicit and transparent as possible. In a book to follow, I address these critiques in detail.

Number of Pages in PDF File: 25

Disponível em: <http://ssrn.com/abstract=2394917>. Acesso em 5 mar. 2014.

Article: Separation Anxiety? Rethinking the Role of Morality in International Human Rights Lawmaking

Vijay M. Padmanabhan 

Vanderbilt University - Law School

January 23, 2014

Vanderbilt Public Law Research Paper No. 14-1

Abstract:

The role of the moral obligation of States, or how States ought to behave, in international law is a source of significant controversy. The dominant 20th Century positivist paradigm of international lawmaking gave short shrift to moral obligation. This account of international lawmaking holds that there is a separation between law and morality (“Separation Thesis”), with the latter outside the bounds of international law. Such an approach is defended as necessary to overcome disagreement on conceptions of justice and respect pluralism, given the heterogeneity of the international community. A separation of law and morality is also thought to foster greater predictability regarding the content of law, critical to avoiding fragmentation in a legal regime without an organized settlement system. While many non-positivist international scholars have challenged this understanding of law, positivists have largely adhered to a strict view of the Separation Thesis.

Number of Pages in PDF File: 82

Disponível em: <http://ssrn.com/abstract=2384179>. Acesso em 5 mar. 2014.

Article: A Special Relationship Gone Normal? Argentina and the Inter-American Human Rights System, 1979-2013

Par Engstrom 

Institute of the Americas, University College London

November 2013

Pensamiento Propio, Vol. 38, June-December (2013) 

Abstract:

This article examines the relationship between Argentina and the Inter-American Human Rights System (IAHRS) as it has developed over time. It proceeds in two main parts. The first unpacks the ways in which Argentina’s relationship has been shaped by domestic political changes, i.e. democratization. Three overlapping, yet distinct, human rights arenas, are examined: civil society mobilisation, constitutional and judicial politics, and state institutions. The second part reverses the analytical focus and highlights what the specific case of Argentina can tell us about the development of the IAHRS, and, in particular, emphasises the extent to which Argentina has found itself at the vanguard of human rights struggles within and around the IAHRS. Yet, as this article demonstrates, Argentina’s relationship with the IAHRS has become increasingly strained in recent years, which demonstrates once more that human rights progress tends to be uneven and prone to reversals.

Number of Pages in PDF File: 28

Disponível em: <http://ssrn.com/abstract=2397846>. Acesso em 5 mar. 2014.

Article: International Law in U.S. State Courts: Extraterritoriality and 'False Conflicts' of Law

Anthony J. Colangelo 

Southern Methodist University - Dedman School of Law

February 25, 2014

American Society of International Law Proceedings, Forthcoming 2014 

Abstract:

With the U.S. Supreme Court recently cutting back the reach of federal jurisdiction over causes of action arising abroad for violations of international law, questions have arisen about the ability of state law to provide the vessel through which plaintiffs may bring suits alleging such violations. Here litigants and courts must address two key questions: First, to what extent may state law implement or incorporate international law as a rule of decision? And second, to what extent may state law incorporating international law authorize suits for causes of action arising abroad? The second question is both especially urgent because it involves a potential alternative avenue for litigating foreign human rights abuses in U.S. courts, and especially vexing because it juxtaposes different doctrinal and jurisprudential conceptualizations of the ability of forum law to reach inside foreign territory. 

Against this backdrop, I want to make a few points. First, there is nothing wrong as a general matter with state law incorporating international law. Second, the idea of state law having broader extraterritorial reach than federal law is nonetheless in tension with federal foreign affairs preemption. And third, this tension basically disappears when the state law incorporating international law presents what’s called a “false conflict” of laws among the relevant jurisdictions’ laws. Here the fields of private international law and conflict of laws gain salience and supply a doctrinally and historically grounded mechanism for entertaining claims arising abroad in U.S. courts. More concretely, if state law incorporating international law is fundamentally the same law as that operative in the foreign jurisdiction, there is no conflict of laws and the sole applicable law applies. 

In sum, ever-tightening constraints on federal extraterritoriality have generated multilayered tensions with traditional and contemporary fields of conflict of laws and private international law. At present, the flashpoint for these tensions promises to be claims alleging international human rights violations abroad in state court. The concept of “false conflicts” of law can remove the flashpoint’s ignition source. False conflicts hold immense jurisprudential, doctrinal, and practical potential to handle these multilayered tensions with an equally multilayered concept capable of capturing principles not only of conflict of laws but also of federal extraterritoriality, foreign affairs, and due process. False conflicts should be the starting point for any evaluation of international human rights claims in state court under state law.

Number of Pages in PDF File: 15

Disponível em: <http://ssrn.com/abstract=2400760>. Acesso em 5 mar. 2014.

Article: International Human Rights Law and the International Court of Justice

Eva R. Rieter 

Radboud University Nijmegen - Faculty of Law

January 18, 2014

Abstract:

This report, prepared for the Committee on International Human Rights Law of the International Law Association, examines the increased references by the ICJ to decisions by human rights bodies as well as its attitude towards the position of the individual in general, with a focus on its case law on the extraterritorial application of human rights treaties, on its practice regarding provisional measures involving human beings and on the issue of diplomatic protection. It concludes that given its function and its dependence on the cases and requests brought before it, the ICJ very often is not in a position to contribute to human rights law, but its increasing sensitivity to the fate of human beings has nevertheless contributed to the humanization of international law and its increasing openness to cross-referencing does validate, directly or indirectly, the approach of the supervisory bodies to human rights treaties dealing with individual complaints.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2393651>. Acesso em 20 fev. 2014.

Article: Law versus Norms: The Impact of Human Rights Treaties on Constitutional Rights

Mila Versteeg 

University of Virginia School of Law

November 22, 2013

Virginia Public Law and Legal Theory Research Paper No. 2014-2

Abstract:

Many view constitutional incorporation of international human rights treaties as the most effective way to enforce treaty rights domestically. Three competing theories seek to explain why this incorporation occurs or does not occur: (1) states constitutionalize treaty rights because treaties offer authoritative norms that are emulated through the power of their example; (2) states constitutionalize treaty rights because the treaties themselves demand constitutional incorporation; and (3) states only constitutionalize treaty rights when it is in their interest to do so; the treaty does not change state behavior. If the first, norm-based explanation is at work, treaty rights should be emulated widely once a treaty enters into force, regardless of ratification. If the second, law-based explanation is at work, states should constitutionalize their treaty obligations only upon ratification. If the third, interest-based explanation is at work, there should be no independent impact of human rights treaties on constitutional commitments.

This paper examines empirically to what extent eighteen international and regional human rights treaties have altered rights commitments in national constitutions, through either the treaties’ ratification or their mere entry into force. Analyzing 103 constitutional rights in 186 countries over a sixty-one-year period, the paper finds that most treaties do not impact constitutional commitments. There are several exceptions. Two treaties, the CAT and the ECHR, have been emulated everywhere regardless of ratification. Two other treaties changed constitutional commitments among ratifiers only; ratification of the second optional protocol to the ICCPR and the thirteenth optional protocol to the ECHR (both abolishing the death penalty) increase the probability that the ratifying states constitutionally prohibit the death penalty.

The paper also finds that the law-driven impact of human rights treaties is dependent upon the status of international law in the domestic legal system. In dualist systems, where treaties require implementation to have domestic effect, treaty ratification often spurs countries to constitutionally commit to the equivalent treaty rights. In contrast, in countries with a monist system of international law, where international law works directly and automatically in the domestic legal order, ratifying states are less likely to repeat treaty rights in their constitutions. Monist systems are thus characterized by a substitution effect, whereby treaty rights substitute constitutional rights. A similar substitution effect exists within the European and Inter-American regional human rights system, where treaties also work directly in the domestic legal order.

Number of Pages in PDF File: 38

Disponível em: <http://ssrn.com/abstract=2360814>. Acesso em 27 jan. 2014.