Human Rights Law

ONLINE CERTIFICATE COURSE ON RTI IS COMPLETED

by Pradeep Dwivedi

Videovigilancia y derechos fundamentales: los estándares del Consejo de Europa

by Luis I Gordillo

en ABEL LLUCH, Xavier, PICÓ i JUNOY, Joan y RICHARD GONZÁLEZ, Manuel (dirs.), La prueba judicial. Desafíos en las jurisdicciones civil, penal, laboral y contencioso-administrativa, La Ley-Wolters Kluwer, Madrid, 2011, pp. 1565-1588. ISBN: 978-84-8126-777-8.

Contribución al libro colectivo "La prueba judicial". Contribución al libro colectivo "La prueba judicial".

The Non-Legal Role of International Human Rights Law in Addressing Immigration

by Lesley Wexler

University of Chicago Legal Forum

Current domestic and international law relating to immigration tends to favor law enforcement over human rights... more Current domestic and international law relating to immigration tends to favor law enforcement over human rights approaches. Despite these tendencies, international law has helped develop a human rights framework applicable to migrants. In particular, this paper hypothesizes that international human rights treaties that deal specifically with migrants' rights may provide some small but meaningful gains for migrants by: (1) influencing non-binding regional processes; (2) contributing to the development and dissemination of best practices; and (3) producing and codifying a human rights discourse. If such an account is correct, the emphasis on whether states formally adopt international law obscures some of the less obvious benefits of developing immigration human rights treaties and their related regimes.

First, the article suggests that treaties can be agenda-setting for non-binding regional processes. While political science scholars have begun looking at the effects of such processes more generally, few international law scholars address this phenomenon. This paper hopes to spur some interdisciplinary discourse by suggesting that non-binding regional processes create a pathway by which international law may reach and influence even those states skeptical about joining international treaty regimes. Second, the article investigates the way in which immigration human rights treaties may contribute to the development and dissemination of best practices. Third, this paper conjectures that treaties assist in the production and codification of a human rights discourse. It relies on insights from psychology to demonstrate why language and rhetoric might guide state and individual behavior.

Finally, this paper concludes with a snapshot of Italian immigration policy as a case study. Italy provides a discrete example of how international treaties can influence domestic legislation as well as highlights some of the difficulties in promoting and enforcing migrants' human rights.

The Promise and Limits of Local Human Rights Internationalism

by Lesley Wexler

Fordham Urban Law Journal, Vol. 37, No. 599, 2010

For many people across the globe, human rights remain aspirational. American politicians and diplomats often speak of... more For many people across the globe, human rights remain aspirational. American politicians and diplomats often speak of the need to improve human rights abroad in places such as China, Sudan, and North Korea. Popular political discourse recognizes much less often the need to turn inward and improve our own government’s human rights behavior, be it federal, state, or local. Despite the lack of mainstream support, for the last several years, NGOs and academics have increasingly criticized the failure of domestic actors to successfully bring human rights home. These critiques have given way to a second stage in the struggle — the articulation of justifications, structures, and specific policies for implementing domestic human rights.

This piece is the fourth of a multi-part series of papers that takes a supportive but also critical approach to the project of bringing international law home. The first three pieces documented the existence of apathetic and intransigent federal actors; identified the role of sub-federal actors; and proposed that states and localities undertake human rights review of pending legislative and agency actions. As a part of this larger project, this paper once again focuses on cities as a vital pathway for the movement from the international to local. Like the prior works, this paper mixes theories, hypotheses, and case studies to illuminate the potential for bringing international law home. While the nation-state remains an extremely important player in the formation and enforcement of international law, international law also influences behavior by moving through sub-federal actors and regional sites. Sometimes this change occurs at the national government’s behest, but oftentimes it also occurs when other government actors bypass those nation-states resistant to its pull. This paper seeks to explain why and how cities in particular can play an important role in bringing human rights home.

In the fifth and final paper, I anticipate concluding this discussion by looking closely at various methods to move human rights into the administrative state. Before moving into this final component, however, this current paper needs to first explain the role of cities in the overall project. In recent years, international law scholarship has moved beyond a statist conception in which only national governments create and then implement international law. Rather, bodies at all levels ranging from the transnational, such as regional consultative process and more formal international institutions, to state legislatures and state courts, to the most local unit of cities have all become active participants in the project of enshrining human rights in law. This paper investigates both domestic and international examples of cities acting as norm entrepreneurs in voluntarily implementing treaty based human rights. While previous works mostly took as a given federal inactivity in regards to human rights treaties, Part I reviews the numerous historical, political, and structural reasons for the limited federal efforts to integrate human rights treaties at home. These include the institutional objections of International Federalists, the substantive objections of Positive Rights Rejecters, and the political discretion concerns of the Flexible Foreign Policy Advocates. Although a domestic constituency supportive of human rights exists, until recently, such groups have focused on human rights promotion rather than internal integration. I then link these political objections to the various structural hurdles that treaties must pass through.

Part II articulates some reasons why some cities might be more likely first movers. These include structural advantages, possible political homogeneity, and enhanced capacity to generate visible benefits for their constituents. In undertaking those efforts to integrate human rights, cities might create some local benefits that exist above and beyond mere substitution for federal action. I also wish to identify some of the city-specific gains that may arise from local implementation. Cities can capture good governance gains independent of whether the federal government decides to act. As they are often the provider of basic social services and possess a large bureaucracy, citizens can gain from subjecting those bureaucracies to human rights regardless of what states and the federal government decide to do. So even in those instances in which the federal government acts to bring human rights home, cities can supplement and reinforce those efforts by acting as laboratories and providing an additional layer of protection by promoting good government. This section, however, counsels caution for those who believe cities to be a likely motivator of federal behavior. Many of the same factors that allow cities space to act also serve as impediments to effective state and federal spillovers. While cities can perform much significant work bringing human rights home, we must simultaneously acknowledge that they also labor under significant structural and political constraints.

Human Rights Impact Statements: An Immigration Case Study

by Lesley Wexler

The United States has long criticized other governments for their human rights abuses. Yet violations at home often go... more The United States has long criticized other governments for their human rights abuses. Yet violations at home often go unobserved by both the government and the general public. A more proactive domestic policy, however, could prevent some of these human rights violations. Using Congress’s mandate for environmental assessments and environmental impact statements as a model, this article proposes that domestic actors undertake human rights review of proposed legislative and agency actions. This review process should both generate information about the impact of policies on individuals as well as influence substantive decision making.

Such a proposal raises many design issues. This article addresses some of these questions including: (1) which policies should be subject to human rights impact assessments; (2) who should conduct them; (3) which human rights will be measured; (4) whether public participation should be included; and (5) what consequences ought to flow from a human rights assessment or impact statement. This article uses experiences under environmental statutes as a guide, but ultimately leaves these questions open for further investigation.

I chose to use immigration as a case study for my proposal as increasing many scholars and advocates suggest that human rights law provides a viable framework for protecting migrants, while the actual practice on the ground is quite limited. The federal government has voiced some limited support for human rights generally, but it boasts a weak track record in regards to the ratification and implementation of human rights treaties. Although the formal immigration system supposedly builds in respect for human rights, such a system at best only acknowledges the abuses that migrants might suffer at the hands of other governments. More generally, immigration quotas reflect political exigencies such as who the United States considers political allies and a preference for highly skilled workers. Given the limitations on increased ratification and implementation of human rights treaties, this paper proposes an alternate mechanism for bringing human rights home to migrants.

Are Traditional Courts impartial? Jopadhola Clan Courts of Eastern Uganda under scrutiny

by Maureen Owor

fortchoming in the Journal of African Law vol 56-2 2012

This article examines the impartiality of clan (traditional) courts within the context of standards set out in the... more This article examines the impartiality of clan (traditional) courts within the context of standards set out in the African Regional human rights instruments. Participant’s views, a court case and a trial simulation from a field study among the Jopadhola of Eastern Uganda are drawn upon here to illustrate how clan courts resolve threats to their impartiality. Clan courts face interference from the state, accusations of bias, and intimidation from individuals. Although clan courts used a shared ‘judicial’ function based on participatory justice, they nonetheless try to achieve objectivity by involving lower level government officials in decision making and constituting a ‘mixed’ bench of ‘judicial’ officials. These shifts in local practices however, do not embrace modern concepts of equality regarding the participation of women and youth in clan court proceedings. The outcome is a trial based on an ‘expanded’ notion of impartiality- one that melds legal notions of impartiality with a traditional ‘communal’ concept of neutrality.

Advancing International Criminal Law. The Special Court for Sierra Leone Recognizes Forced Marriage as a ‘New’ Crime against Humanity

by Micaela Frulli

published in Journal of International Criminal Justice 6 (2008), 1033-1042

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced... more The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to
be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous
practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision
may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC
Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

A binding Food Treaty: a post-MDG proposal worth exploring

by Jose Luis Vivero

Comments, ideas on how to move it and suggestions to rise its profile for Rio+20 and the post-MDG talks are more than welcome.

Hunger is needlessly killing millions of our fellow humans, including 2.6 million young children every year. It... more Hunger is needlessly killing millions of our fellow humans, including 2.6 million young children every year. It condemns many others to life-long exposure to illness and social exclusion. This OPEX Memo argues that a binding Food Treaty would create an appropriate framework to end hunger, and other forms of malnutrition that cause premature death, no later than 2025. Those governments that are genuinely determined to end hunger - the coalition of the willing - could commit themselves to mutually-agreed binding goals, monitorable objectives and predictable funding within the Treaty framework. The paper presents objectives, provisions and a possible route map for the process. This path wouldshall involve civil society participation and include a Global Anti-Hunger Campaign during the negotiation process and beyond, so as to build a strong constituency of public support for hunger eradication.

Exclusion of Evidence Obtained in Breach of the Right to Privacy: Will Victoria's Charter Protect the Rights of Criminal Defendants?

by Caroline Henckels

¿Derechos sin Liberalismo? El Individualismo y la Igualdad formal en el actual sistema de derechos

by Sebastián Figueroa Rubio

Published in “Artificium” Revista Iberoamericana de Estudios Culturales y Análisis Conceptual. Universidad Autónoma Metropolitana, México, Año 1, Vol 2.

El siguiente documento presenta una interrogante sobre la plausibilidad de las relaciones de interdependencia... more El siguiente documento presenta una interrogante sobre la plausibilidad de las relaciones de interdependencia usualmente establecidas entre el liberalismo y los derechos a la luz de los desarrollos producidos por el sistema de derechos (humanos, fundamentales) en las últimas décadas. Se centra el análisis en dos puntos: (i) una concepción individualista de los derechos y (ii) la defensa de la igualdad formal. Pareciera ser que el sistema de derechos (humanos, fundamentales) actualmente se ha desligado de la doctrina liberal para enfrentar variadas de las problemáticas que encontramos en las sociedades contemporáneas como la situación de grupos desaventajados y la protección del medio ambiente. Se concluye que la pregunta no es vana como tampoco lo es el imaginar a los derechos (humanos, fundamentales) de otra manera, emancipados de la doctrina liberal.

From Shelter to Housing: Security of Tenure and Integration in Protracted Displacement Settings

by Rhodri C Williams

Published as a Norwegian Refugee Council (NRC) Report

Many, and perhaps most, of the world’s displaced persons now find themselves in situations of protracted displacement... more Many, and perhaps most, of the world’s displaced persons now find themselves in situations of protracted displacement facing unresolved conflicts that rule out both restitution and voluntary return as a viable solution. Trapped in these circumstances, many are denied their fundamental right to security of tenure. This indefinitely perpetuates their vulnerability, violates their rights and reduces the likelihood that they have sufficient resilience or possibility to return home sustainably, should the opportunity arise, or to integrate locally. In most cases, they end up being displaced for a long and indefinite time.

Conscious of this growing trend, NRC commissioned this report analysing the importance of rights to housing, land and property (HLP) in providing more durable solutions for both internally displaced persons (IDPs) and refugees. The report deconstructs the current legal and policy framework and analyses how state and humanitarian agencies’ practices have to change to confront this growing challenge.

Christianity and the Rights of Women

by M. Christian Green

In John Witte, Jr., and Frank Alexander, eds., Christianity and Human Rights: An Introduction (New York: Cambridge University Press, 2011), 302-319.

Christianity, like other religious traditions, has often had an ambivalent relationship to women’s rights. While some... more Christianity, like other religious traditions, has often had an ambivalent relationship to women’s rights. While some passages in the New Testament prescribe for women a posture of submission, subjection, silence, and subordination, others hold out the tantalizing prospect of equality. When it comes to the rights of women, Christianity is rife with dualities of subordination and liberation, equality and difference, sacrifice and virtue, creation and redemption. In this chapter, I provide a brief historical overview how Christian women, both comfortably ensconced and sometimes alienated from the tradition, have addressed, resisted, and reconciled these tensions. I relate these historical struggles to the ongoing evolution of women’s rights in the international human rights frameworks established in the Convention on the Elimination of Discrimination Against Women (CEDAW) in 1981, the International Conference on Population and Development at Cairo in 1994, and the Fourth World Conference on Women at Beijing in 1995. From these historical and contemporary tensions between Christianity and the human rights of women, I distill some key tensions in the relationship between Christianity and women’s rights that continue to be present, even as Christian women around the world today are advocating both for women’s rights and wider frameworks of “third generation” human rights with the potential to benefit all humanity.

Critique and Crisis Stream for CLC12

by Can Öztaş

U.S. Asylum Law as a Path to Religious Persecution

by Jack Dolance

(working title)

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer... more U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.”

Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from persecution on account of one’s “religion” must include protection of one’s religious freedom not to believe in deities of any kind. To hold otherwise would be to inhibit the very religious liberty asylum law is intended to protect.

Yet under current U.S. law, a non-believer’s claim for asylum may well be denied on the ground that non-belief is not enough for religious asylum. This may serve to dissuade a would-be asylee from even attempting to apply for religious asylum as a non-believer—even where she would undoubtedly be subject to religious persecution if forced to return to her native country. She may thus feel the need to feign conversion to a traditional, mainstream religion. Such a result is unacceptable in a nation founded upon religious liberty.

This brief Article argues that if a non-believer is denied religious asylum in the United States, she can succeed on a claim that the law as applied to her violates both the Free Exercise and the Establishment clauses of the First Amendment.

Rising to the human rights challenge in compulsory treatment – new approaches to mental health law in Australia

by Christopher Ryan

Callaghan, Sascha, and Christopher James Ryan. 2012. Rising to the human rights challenge in compulsory treatment – new approaches to mental health law in Australia. Australian and New Zealand Journal of Psychiatry: (published on line 21 February 2012).

Objective: To analyse, and explain to Australasian psychiatrists, recent proposed changes to the terms of coercive... more Objective: To analyse, and explain to Australasian psychiatrists, recent proposed changes to the terms of coercive treatment for mental illness in Tasmania and Victoria and to place the proposals in the context of a broader human rights framework that is likely to impact the future shape of mental health legislation more generally.

Methods: The Australian law reform proposals are reviewed against the requirements of numerous human rights instruments, including the recently ratified United Nations Convention on the Rights of Persons with Disabilities. Ethical and legal arguments are made to support the proposed changes and to introduce others, taking into account academic commentary on mental health law and recent empirical work on the ability to usefully  categorise patients by their likelihood of harm to self and others.

Results: The Victorian and Tasmanian draft mental health bills propose a new basis for compulsory psychiatric treatment in Australasia. If they become law, coercive psychiatric treatment could only be applied to patients who lack decision-making capacity. The Tasmanian draft bill also sets a new benchmark for timely independent review of compulsory treatment. However both jurisdictions propose to retain an ‘additional harm’ test which must be satisfied before patients may be treated without consent. This differs from non-psychiatric cases, where if patients are unable to consent to medical treatment for themselves, they will be entitled to receive coercive treatment if it is in their best interests.

Conclusions: The proposed changes under the Tasmanian and Victorian draft mental health bills will ensure that, in line with local and international human rights obligations, only patients who lack decision-making capacity may be coercively treated for mental illness. However the continuing ‘additional harm’ criteria may breach human rights obligations by imposing a discriminatory threshold for care on patients who are unable to consent to treatment for themselves. This could be avoided by replacing the ‘additional harm’ test with a ‘best interests’ test.

Western Australia - rising to the human rights challenge?

by Christopher Ryan

Callaghan, Sascha, and Christopher James Ryan. 2012. Western Australia - rising to the human rights challenge? [Letter]. Australian and New Zealand Journal of Psychiatry: (published on line 19 March 2012).

The Western Australian government recently released a draft mental health bill for public comment. Disappointingly,... more The Western Australian government recently released a draft mental health bill for public comment. Disappointingly, the proposed legislation fails to adequately protect the human rights of West Australians living with mental illness.

Protecting our patient's rights [Letter].

by Christopher Ryan

Ryan, Christopher James, and Sascha Callaghan. 2011. Protecting our patient's rights [Letter]. Australian and New Zealand Journal of Psychiatry 45 (2): 180.

The mental health legislation of every state and territory in Australia allows psychiatrists to coercively detain and... more The mental health legislation of every state and territory in Australia allows psychiatrists to coercively detain and treat people with mental illnesses. This power is carefully regulated and every mental health act contains a provision demanding independent quasi-judicial review of the circumstances of the detention. The timing of this independent review is currently the subject of controversy in New South Wales.

Long time, no see. Australians with mental illnesses wait too long before independent review of detention

by Christopher Ryan

Ryan, Christopher James, Sascha Callaghan, and Matthew Large. 2010. Long time, no see. Australians with mental illnesses wait too long before independent review of detention. Alternative Law Journal 35 (3): 137-138.

All Australians who find themselves detained against their will have a right to be brought before a court or other... more All Australians who find themselves detained against their will have a right to be brought before a court or other independent body to ensure that the terms of their detention are lawful. This ancient right is protected in the civil law through the writ of habeas corpus and in the legislative rules requiring prompt review of criminal detention in each state and territory.

Community Based Care and Compulsion: What Role for Human Rights?

by Mary Donnelly

Pulblished in Journal of Law and Medicine, Vol. 15, pp. 782-793, 2008

This article considers the role of traditional conceptions of human rights in relation to the challenges posed by... more This article considers the role of traditional conceptions of human rights in relation to the challenges posed by community treatment orders (CTOs). It explores how traditional rights discourse in mental health, which has focused on the rights of liberty and autonomy, is to be located within the landscape of community-based mental health law. Using jurisprudence arising under the European Convention on Human Rights, it identifies the limitations of traditional rights in this context. However, it argues that traditional concepts such as liberty and privacy still have a role to play.

[Non-refereed Op-ed] Whose Arms Will Embrace You? The United States and the Beijing Consensus

by Amarnath Amarasingam

The United States is increasingly playing a game of subtle communication in the international arena. I suspect we had... more The United States is increasingly playing a game of subtle communication in the international arena. I suspect we had a passing glimpse of this at the 19th Session of the Human Rights Council, which gathered in Geneva last month. The question is: who is the United States talking to and what is it trying to say?