JournalTOCs

Northwestern Journal of International Human Rights
Number of Followers: 5

This is an Open Access Journal

Open Access journal
ISSN (Print) 1549-828X
Published by Northwestern University

[6 journals]

Empowering Persons with Disabilities: Socio-Economic Rights as a Pathway
to Personal Autonomy and Independence
- Authors: Francesco Seatzu
  Abstract: Recent years have witnessed a growing awareness of the importance of the status of persons with disabilities as right-holders, and increasing linkages being made between human rights and persons with disabilities’ vulnerabilities in the development context. Stimulated by mounting concerns about the impact of the financial crisis of 2007–2008 on persons with disabilities, these changes have unsurprisingly catalyzed attention on those rights of persons with disabilities that are most closely connected to ensuring persons with disabilities’ development needs—namely their social and economic rights. Focusing on the content of, and duties imposed by, persons with disabilities’ socio-economic rights, this article starts by describing the notions of “disability” and “disabled persons.” It then discusses the emergence of persons with disabilities as socioeconomic rights holders, focusing on the question of whether persons with disabilities are or should be considered a “special case” vis-à-vis such rights when compared with other vulnerable groups. The article concludes with a discussion of the role domestic courts can and should play in the enforcement of the socio-economic rights contained in the UN Convention on the Rights of the Persons with Disabilities.
  PubDate: Mon, 08 Jun 2020 06:38:28 PDT
International Lawyers as Disrupters of Corruption: Business and Human
Rights in Africa’s Most Populous Country—Nigeria
- Authors: Jayanth K. Krishnan
  Abstract: Be it bribery, embezzlement, or the abuse of public trust, corruption poses a major challenge to global security and democratic governance, along with undermining the rule of law, especially within the Global South. Key to this phenomenon is understanding how lawyers are enabling but also disrupting this epidemic. Unfortunately, the literature on this subject is lacking. This study, therefore, offers a nuanced story of globalization and the complicated role that lawyers play in corruption, by relying on the case study of Nigeria—a crucial Global South market that has the largest population on the African continent. While Nigeria has been able to remain a democracy since 1999 (albeit fragilely), private sector and government officials, including the current Nigerian president, concede that corruption is the country’s biggest problem. At the same time, as this study demonstrates, in Nigeria today there is a small but growing group of globally experienced lawyers who are aggressively resisting the entrenched corruption that besieges this environment. By virtue of the opportunities provided by globalization, this cohort is not bound to the parochial interests that have long harmed Nigeria. Yet, these lawyers also work within a larger profession that is conservative, complicated, and at times itself corrupt. Thus, to what extent do these factors affect the ability of these globally focused lawyers to enact change' The answer to this question is critical because it helps to unlock an enduring puzzle as to which agents are best situated to lead a country out of its mired, corrupt history and onto the global stage as a respected power. For other nations, particularly in the Global South, that are also seeking to strengthen their rule of law regimes, the lessons from this study will be instructive in determining whether lawyers who value—and are part of—global networks are capable of curbing corruption within their own domestic contexts.
  PubDate: Mon, 08 Jun 2020 06:38:24 PDT
Paradox of Hierarchy and Conflicts of Values: International Law, Human
Rights, and Global Governance
- Authors: Jootaek Lee
  Abstract: In an international society, hierarchies are set up differently among different countries and societies based on different values, which are naturally conflicting and colliding with each other and result in unstable conditions. Is hierarchy really necessary in an international society' Does more hierarchical order in international society mean more peace' Do we need a supranational organization like the European Union whose laws can pierce state sovereignty and bind citizens of each member state' Does the United Nations need to be reformed to create an effective hierarchy, which will give international society more peace, security, and protection of human rights' This article may not answer all of these questions, but will attempt to clarify hierarchical issues in international law, particularly in the human rights field.
  PubDate: Fri, 03 Jan 2020 21:23:43 PST
Elusive Justice: Reflections on the Tenth Anniversary of
Afghanistan's Law on Elimination of Violence Against Women
- Authors: Mehdi J. Hakimi
  Abstract: The Taliban’s fall in 2001 elevated hopes for improving the plight of women and girls in Afghanistan. Those aspirations were bolstered with the promulgation of the country’s landmark Law on the Elimination of Violence against Women (EVAW) in 2009. The tenth anniversary of Afghanistan’s EVAW Law, however, offers little cause for celebration. This essay examines Afghanistan’s legal framework on combating gender-based violence against women, and the mounting challenges on the ground. The ongoing rampant violence against women, pervasive use of mediation in criminal cases, and violations perpetrated by State agents have made Afghan women’s quest for justice increasingly more elusive. These breaches of the State’s due diligence obligations under international law constitute human rights violations. As women remain effectively sidelined in the peace negotiations with a resurgent Taliban, the Afghan government and the international community cannot solely talk the talk, but must also walk the walk of confronting violence against women.
  PubDate: Fri, 03 Jan 2020 21:23:41 PST
A "Dignified Life" and the Resurgence of Social Rights
- Authors: Thomas M. Antkowiak
  Abstract: The international human rights movement and its institutions have faced searing criticism that they have abandoned social, economic, and cultural rights (“social rights”). While favorable treaties and constitutions have proliferated over the last decades, grave poverty, inequality, and disease still run rampant across the globe. Many have attributed the latest rise of demagogues and terrorist groups to this widespread social disenfranchisement.The supranational human rights courts have historically avoided social rights enforcement due to limited subject-matter jurisdiction. Yet more recently the Inter-American Court of Human Rights introduced a conceptual breakthrough to assess social rights, which was affirmed by the U.N. Human Rights Committee at the end of 2018. These advances reveal a building, although controversial, movement among supranational tribunals to hold States accountable for ensuring a “dignified life” and various social rights.In Parts I and II, this article will examine these international legal developments, which primarily involve the integration of social rights into the right to life. In Part III, the article will then assess this expansive right-to-life approach, considering its consensual, suprapositive, and institutional aspects. When these three aspects are balanced, a court’s interpretation contributes to making its treaty system “justifiable, politically acceptable, and effective.”The Inter-American Court has recognized that the fundamental right to life will never be meaningful and effective without nutrition, water, health care, housing, education, and ancestral lands. By establishing that these elements are indivisible from life, the Court also justified its expansion of remedies to safeguard many individuals and communities at risk. While States originally did not draft this “right to a dignified life,” they have permitted it to develop in the Inter-American System, as it aligns with their emphasis—at least in principle—on human dignity and respectable living conditions. The article concludes that the right to a dignified life, despite certain drawbacks examined, is a sensible approach to protect several intertwined rights, because it reasonably balances consensual, suprapositive, and institutional factors. If the Inter-American Court remains committed to its development, the evolving right to a dignified life will become increasingly protective, as well as progressively influential for both supranational tribunals and national legal institutions.
  PubDate: Fri, 03 Jan 2020 21:23:38 PST
North Korean Defectors in South Korea and Asylum Seekers in the United
States: A Comparison
- Authors: Emma Poorman
  Abstract: North Korean defectors are considered citizens of South Korea under the South Korean Constitution, while others that flee violence gain the legal status of “refugee.” North Korean defectors, who attempt to escape one of the worst human rights crises in the world, find themselves in a unique situation. What benefits does this status have' How are refugees typically treated abroad, such as in the United States' This Comment will explore this unique status, how it differs from refugee status in the United States, and the challenges North Korean defectors face in South Korea.
  PubDate: Fri, 03 May 2019 21:03:53 PDT
Navigating the Moral Minefields of Human Rights Advocacy in the Global
South
- Authors: Sandra L. Babcock
  PubDate: Fri, 03 May 2019 21:03:46 PDT
Deliberation and Decision-Making Process in the Inter-American Court of
Human Rights: Do Individual Opinions Matter'
- Authors: Ranieri L. Resende
  Abstract: The work is focused on the adjudicatory nature of the Inter-American Court of Human Rights and investigates its model of deliberation, considering three basic schemes: per curiam, seriatim and hybrid. In order to identify an institutional pattern, the importance of individual opinions is analyzed through the quantitative performance of each category of judge (ad hoc and regular), as well as each type of adjudicative activity (judgments and advisory opinions). The quantitative data is also useful to better understand the explicit assimilation of separate opinions to the core reasoning of future cases. As a result, it has been possible to identify relevant aspects applicable to the main problem of whether individual opinions really matter to the Inter-American Court’s decision-making process.
  PubDate: Fri, 03 May 2019 21:03:40 PDT
Legal Rights, Real-World Consequences: The Ethics of Know Your Rights
Efforts and Towards Improved Community Legal Education
- Authors: Brandi M. Lupo
  PubDate: Fri, 03 May 2019 21:03:32 PDT
School Desegregation 2.0: What is Required to Finally Integrate
America's Public Schools
- Authors: Jim Hilbert
  PubDate: Tue, 31 Jul 2018 17:16:23 PDT
The Security and Human Rights Dilemma: An Inquiry into U.S.-Ethiopia
Diplomatic Relations 1991-2012
- Authors: Seife Ayalew
  Abstract: In the post-1991 U.S.-Ethiopian diplomacy, the use of foreign policy as a framework to advance the cause of human rights has faced several challenges rooted in the way human rights is defined and the intricate interests vested in the U.S. foreign policy establishment. This article elucidates the limitations and challenges of diplomatic machinery as a framework for advancing the cause of human rights. First, human rights in the U.S. foreign policy machine have been given a marginal or subordinate place in diplomatic priorities. Second, the Government of Ethiopia’s (GOE) resistance and tough diplomatic measures and Ethiopia’s strategic importance to the U.S. have alienated or narrowed the space for active human rights diplomacy in Ethiopia, making it a highly politicized undertaking rife with claims and counterclaims of sovereignty, national interest, power politics, and manipulation. However, effective advancement of human rights using the foreign policy framework is limited not only to the choice of U.S. foreign policy makers/diplomats, but also equally important is the domestic political context. Finally, this article will show how GOE has evaded active human rights diplomacy, but done so in a way that serves the overall U.S. strategic foreign policy.
  PubDate: Tue, 31 Jul 2018 17:16:16 PDT
The Right to Education: An Analysis through the Lens of the Deontological
Method of Immanuel Kant
- Authors: Kavana Ramaswamy
  Abstract: The framework of categorical imperatives is one of the most famous deontological theories of rights that have been formulated. The framework has often been used to justify human rights policies all over the world. While they have been subject to several criticisms over the last two centuries, some of these include improvements to the original framework. This paper analyses the framework of the categorical imperatives and suggest certain modifications to improve internal coherence.The paper then seeks to apply this framework to the right to education, a right that is under fire in the conservatively-charged political arena today. This is done to attempt to find a deontological, rather than consequentialist, justification for certain modifications to the education policies often pursued by the conservative right. This paper provides a more robust theoretical justification for certain forms of education policy to be pursued by governments.
  PubDate: Tue, 31 Jul 2018 17:16:09 PDT
The Complexities of Human Rights and Constitutional Reform in the United
Kingdom; Brexit and a Delayed Bill of Rights: Informing (on) the Process
- Authors: Katie Boyle et al.
  Abstract: The United Kingdom’s politicised and contested human rights framework has come under increasing pressure during recent periods of constitutional and political instability. The UK 2016 referendum on membership of the European Union, the delayed repeal of the Human Rights Act 1998 and the proposals to enact a British Bill of Rights have all shaped the discourse at the national level around decisions to retain rights (or not) rather than progressively improve the human rights structure. The European Union and Council of Europe human rights frameworks act as important pillars of human rights and democracy under the UK constitution and each of the devolved constitutions. Constitutional processes such as Brexit risk further confusing an already incoherent and complex human rights framework. This lack of clarity in terms of the future of the human rights regime in the UK and devolved regions has meant that there has been a lack of constitutional safeguards in place to protect human rights and thus far insufficient parliamentary scrutiny. The impact at the supra-national level undermines the UK as a global actor and the impact at the devolved sub-national level is further fragmenting state unity where devolved jurisdictions are on different, and often more progressive, human rights trajectories. The UK is in the process of sleepwalking into a legal human rights deficit. We argue here that this lacunae in legal protections offers, if not necessitates, the opportunity to re-imagine human rights structures in a progressive way embedded in processes that must be genuinely deliberative, informed, participative and inclusive.
  PubDate: Tue, 31 Jul 2018 17:16:02 PDT
Access to Justice Through Limited Legal Assistance
- Authors: Deborah L. Rhode et al.
  Abstract: This article describes an empirical survey of a limited legal assistance program designed to assist low-income individuals with family law matters. It begins by exploring the need for such research, given the nation’s shameful level of unmet legal needs, and the lack of rigorous evaluation of strategies designed to address those needs. The article discussion then describes the methodology of a survey of Alaska Legal Services’ limited legal assistance program, and the survey’s major findings. Among the most critical conclusions are that limited assistance is a cost-effective use of resources, but that more effort should center on provision of hands-on assistance in form completion. A final section of the article places these findings in the context of broader strategies to increase access to justice for those who need it most.
  PubDate: Tue, 31 Jul 2018 17:15:53 PDT
The Transformation of South African Private Law After Twenty Years of
Democracy
- Authors: Christopher J. Roederer
  Abstract: In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of its first decade, South Africa had made considerable progress developing private law, but there was still much work to be done in developing the law of delict, and especially contract law.This article evaluates South Africa’s second decade of constitutional democracy. While South Africa continues to make democratic gains, it also faces serious problems with race, gender, and wealth inequality. This article reviews South Africa’s democratic achievements and challenges over the last twenty years. It provides a brief overview of private law under apartheid before addressing a number of post-apartheid democracy-reinforcing changes to private law. It then analyzes the historically conservative common law of contracts and a recent case that progressively develops the law of contracts and delict. Next, it turns to the Consumer Act of 2008, which has important implications for both contract law and delict. The Act is analyzed in light of two contrasting dramatic helicopter crashes: one that occurred before the Act came into effect, and one after. While there has been considerable progress, there is still a need for improvement. More can be done to align private law with the Constitution’s values, to confront persistent inequality, and promote freedom, dignity, and access to justice. Such breakthroughs would also deepen and stabilize South Africa’s democracy by bringing democratic principles and values into the everyday lives of those affected by private law.
  PubDate: Thu, 05 Jul 2018 17:34:32 PDT
Workers, Dignity, and Equitable Tolling
- Authors: Duane Rudolph
  Abstract: When workers allege that mental illness prevented the timely filing of a federal employment discrimination lawsuit, courts subject them to extreme standards at the equitable tolling stage, which ends workers’ lawsuits against their employers. Such an approach to workers suffering from mental illness is indicative both of judicial misunderstanding of equitable remedies and judicial ignorance of equity’s historical engagement with those afflicted with mental illness. More importantly, subjection of workers to high threshold requirements at equity is an affront to workers’ dignity. Dignity, like equity, has a powerful moral basis that focuses on the individual. Dignity requires that workers alleging that mental illness foreclosed a timely filing of a federal employment discrimination lawsuit be heard and that they not be humiliated.My contribution to the scholarly literature is three-fold. First, I introduce dignity to the scholarly literature on equity and reject arguments by prominent readers of American equity as unresponsive to the kinds of dignitary treatment that vulnerable plaintiffs should expect from courts sitting at equity. Second, I extend judicial discussion of dignity and equity to encompass federal remedies law and federal employment discrimination law. Third, I contribute to the literature on disabilities by looking at the treatment of afflicted workers at a particular point in the federal adjudicatory process. My policy prescriptions explore possible legal and equitable responses to the humiliating experience awaiting workers who allege that mental illness prevented the timely filing of a federal employment discrimination lawsuit.
  PubDate: Tue, 25 Apr 2017 10:44:16 PDT
The Normalization of Immigration Law
- Authors: Mac LeBuhn
  Abstract: In “The Normalization of Foreign Relations Law,” Professors Ganesh Sitaraman and Ingrid Wuerth argue that the Supreme Court increasingly treats foreign relations law like other bodies of law—it has “normalized” this body of once-exceptional law. However, a subset of foreign relations law, immigration law, receives little attention in their account, which obscures the fact that immigration law, unlike the rest of foreign relations law, has not normalized in nearly the same fashion.To understand the normalization of immigration law, this paper proposes a theory of rights normalization: the Court has been reluctant to normalize immigration law except where immigrants’ rights are most at issue. Unlike foreign relation law normalization, immigration normalization has been halting and uneven in the contexts of justiciability, federalism and executive dominance. Yet, in questions affecting immigrants’ constitutional or international human rights, the Supreme Court has been more willing to normalize immigration law. Naturally, all immigration cases affect the rights of immigrants in some manner, but the Supreme Court shows an increased willingness to identify and employ rights claims as the basis for rejecting exceptionalist arguments. In this way, the Supreme Court implements rights normalization.
  PubDate: Tue, 25 Apr 2017 10:44:09 PDT
Keynes, Sen, and Hayek: Competing Approaches to International Labor Law in
the ILO and the WTO, 1994–2008
- Authors: Pascal McDougall
  Abstract: In discussions of recent human rights-driven developments in the International Labour Organization (ILO), as well as in other international legal debates, many scholars have suggested that human rights and “neoliberalism” intrinsically tend to converge. Such purported convergence is at once deplored by critics of “globalization” and applauded by its defenders. This article offers an empirical refutation of this convergence thesis by documenting the potential for systematic divergences between human rights, neoliberalism and a third omnipresent discourse, social legal thought (i.e. tropes associated with the welfare state and Keynesianism). I support this claim by taking as a case study three interrelated and historically fateful debates about international labor standards in the World Trade Organization (WTO) and the ILO. The debates are those pertaining to (1) the failed 1990s project of conditioning WTO trade status with respect for labor standards (“trade/labor linkage”), (2) the prioritization of human rights-based labor standards in the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work (1998 Declaration) and (3) the shape of the ILO corpus under the Decent Work Agenda (DWA), a social policy programmatic initiative on labor standards fiercely debated in the 2000s. I argue that human rights, neoliberalism and social legal thought diverge a great deal because they have different degrees of normative malleability. I propose a methodology, structuralist argumentative analysis, to address the question of discursive convergence and divergence, an issue of crucial importance for those interested in the political stakes of debates on international labor standards and the future trajectories of neoliberalism and human rights.
  PubDate: Tue, 25 Apr 2017 10:44:01 PDT
Transferring Away Human Rights: Using Human Rights to Address Corporate
Transfer Mispricing
- Authors: Monica Iyer
  Abstract: An estimated sixty percent of international trade happens within multinational enterprises. Transfer pricing occurs when one part of a firm sets a price in order to sell to another division in another country. When these prices are deliberately set at something other than market rate in order to minimize the firm’s tax liability, this is known as transfer mispricing, or abusive transfer pricing. These practices account for an enormous portion of global illicit financial flows. This paper will consider transfer mispricing as a violation of human rights, and will look at the ways in which various human rights instruments and mechanisms might be employed in order to address this global problem. In doing so, this paper seeks to add to a growing body of literature that considers the human rights implications and the importance of incorporating a human rights approach to issues like tax policy, trade, and corruption, with the aim of addressing the underlying structural drivers of human rights violations. It also seeks to address a gap in law and policy discussions that is generally characterized by an uneven power relationship between stakeholders and lack of voice for those most affected.
  PubDate: Tue, 25 Apr 2017 10:43:53 PDT