Tuesday, October 4, 2022

New Article: I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S.

Davita S. Glasberg, William T. Armaline, Bandan Purkayastha, I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S., Societies Without Borders, Volume 16 Issue 1 (2022). Abstract below.

The right to vote is clearly delineated among the rights identified in the Universal Declaration of Human Rights, and the US has long held itself as the beacon of that democracy and enfranchisement. Yet, a long history persists of practices and policies of voter suppression and gerrymandering that targets the rights of Black, brown, and indigenous populations in the US, a history that has in recent years escalated. We use the framework of the Human Rights Enterprise to unpack this history and to explore why efforts of voter suppression are intensifying at this particular moment in history.

October 4, 2022 in Books and articles, Voting | Permalink | Comments (0)

Thursday, September 15, 2022

New Article: The Declaration Against Arbitrary Detention in State-to-State Relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?

Leigh T. Toomey, The Declaration Against Arbitrary Detention in State-to-State Relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?, Harvard Human Rights Journal, Vol 35, Spring 2022. Excerpt from introduction included below.

“In February 2021, Canada launched the Declaration Against Arbitrary Detention in State-to-State Relations (“Declaration”) in order to enhance international cooperation in deterring the detention of foreign and dual nationals for the purpose of diplomatic coercion, and to address this form of detention whenever and wherever it occurs. The Declaration is the first of its kind in seeking to address the specific challenge of the arbitrary detention of foreign and dual nationals and their use as “bargaining chips in international relations.”

This Commentary considers the new Declaration, arguing that it is a promising initial response to the urgent need for the international community to denounce the detention of individuals because of their status as foreign or dual nationals. To highlight the prevalence of the arbitrary detention of foreign and dual nationals and the urgency of addressing it, this Commentary reviews recent opinions of the UN Working Group on Arbitrary Detention (“Working Group”). In all of the opinions reviewed, the Working Group found that foreign and dual nationals had been arbitrarily detained due to discrimination based on their nationality, or because they were not afforded their right to consular assistance. The Working Group has welcomed the Declaration, noting that “[i]ts aims and purposes relate closely to the concerns expressed by the Working Group in the past” and that it stands ready, within the remit of its mandate, to support this initiative and to engage with States that have endorsed it. This Commentary takes a similar approach in welcoming the Declaration, while being mindful that States must take action to implement its principles.”

September 15, 2022 in Books and articles | Permalink | Comments (0)

Wednesday, September 7, 2022

New Article: Let Them Eat Rights: Re-Framing the Food Insecurity Problem Using a Rights-Based Approach

Benedict Sheehy & Ying Chen, Let Them Eat Rights: Re-Framing the Food Insecurity Problem Using a Rights-Based Approach, 43 Mich. J. Int'l L. 631 (August 2022). Abstract below.

Food insecurity is a global issue. Large parts of the global population are unable to feed themselves adequately with hundreds of millions of people suffering from hunger and malnutrition. This problem is recognized widely by governments, industry and civil society and is usually understood using one of three approaches or frames: a basic production problem solved by technology and increased industrialization of agricultural, and an economic problem solved by economic growth and a commercial problem resolved by expanding markets. Much of the discussion and policy advice is based on the premise that hunger is primarily a wealth issue and, that as wealthy countries do not have hunger, the solution is economic development. Using Erving Goffman’s theory of framing, we argue that these frames are inadequate as evidenced by the failure to solve this very basic, but complex problem in both poor and wealthy countries on the one hand nor explain the success of some developing countries on the other. After analyzing the three frames and their limitations, we propose a rights-based frame and explain how rights are an important part of solving the complex problem of hunger. We examine how rights-based approaches have worked by creating three categories based on the status of food rights within the respective constitutional frameworks of those jurisdictions. In each of the three categories, we examine specific jurisdictional frameworks, evidence of performance and evaluate their success. Based on that review, analysis and evaluation, we identify the legal elements of an effective right to food.

September 7, 2022 in Books and articles | Permalink | Comments (0)

Thursday, August 25, 2022

New Article: Non-State Actors “Under Color of Law”: Closing a Gap in Protection Under the Convention Against Torture

Anna Welch & SangYeob Kim, Non-State Actors “Under Color of Law”: Closing a Gap in Protection Under the Convention Against Torture, 35 Harvard H.R.J. (2022). Abstract below.

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory. In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is meant by “other person acting in an official capacity” such that torturous acts by non-state actors fall under U.N. Torture Convention protection remains unclear under U.S. CAT jurisprudence. While many aspects of the CAT have been litigated, clarified, and developed through case law since the United States ratified the CAT, the question of whether and when a non-state actor can be deemed an “other person acting in an official capacity” under the CAT within U.S. jurisprudence lacks scholarship or case law. We make the novel argument that courts and agencies should apply factors employed in civil rights claims (also known as § 1983 claims) to assess whether a non-state actor can act in an official capacity or under color of law. Doing so will help fill a critical gap in U.S. CAT protections.

August 25, 2022 in Books and articles, CAT | Permalink | Comments (0)

Tuesday, August 23, 2022

New Article: Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations

Nermeen S. Arastu, Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations, 35 Harvard H.R.J. (2022). Abstract below.

Year after year, the United States has remained the world’s largest recipient of humanitarian-based immigration applications. Those seeking protection here must navigate a backlogged and increasingly restrictive system, oftentimes without access to counsel. Most individuals applying for humanitarian relief must prove that they survived egregious past harms or fear future harms if the United States were to deport them. In turn, immigration judges and Department of Homeland Security adjudicators act as gatekeepers, making daily decisions about whose pain and suffering is devastating enough to justify granting them status in the United States. For immigrants privileged enough to gain access to them, forensic medical evaluators can play a crucial role in immigration outcomes by documenting narratives of harm, bolstering credibility, and persuading adjudicators to grant relief. However, despite the exponential growth in medical-legal collaborations and requests for forensic medical evaluations in support of immigrants, there is little data about if and how forensic medical evidence impacts adjudicator decision making. The empirical study discussed in this Article—the largest-of-its-kind quantitative study of over 2,500 cases in which Physicians for Human Rights (“PHR”) facilitated medical evaluations on behalf of immigrants—found that 81.6% of individuals who received a forensic medical evaluation between 2008 and 2018 experienced some form of a positive immigration outcome. In comparison, immigration adjudictors only granted relief to asylum seekers an estimated 42.4% of the time overall during this same period. The significant impact of forensic medical evaluations in contributing to a favorable immigration outcome raises questions about whether adjudicators are holding immigrants to overly-stringent evidentiary standards by constructively creating norms that require immigrants to gain access to health professionals with the requisite training to evaluate them. To the extent such evaluations become essential to the successful outcome of the legal case, access to a medical evaluator may indeed translate into access to justice.

 

August 23, 2022 in Books and articles, Health, Immigrants, Immigration | Permalink | Comments (0)

Tuesday, July 26, 2022

New Article: Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism

Martha F. Davis, Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism, 52 Seton Hall Law Review 1461 (2022). Excerpted below (citations removed).

        “It is not just far away locales where water access is wielded in this way. In the United States, Black and Brown people often bear the brunt of such policies and practices. For example, for decades, a predominantly African American neighborhood in Zanesville, Ohio, was denied a connection to the city’s water system—an abuse of power that jeopardized public health and demeaned the community until a 2002 civil rights complaint and a federal lawsuit forced a change. In Detroit, Michigan, beginning in 2014, tens of thousands of low income people, primarily Black, found their water shut off for nonpayment; many of those affected speculated that the city’s goal was not merely to collect outstanding funds, but to compel low income residents to leave their homes and make way for new, more lucrative (and whiter) development.

        Sometimes the control of water—and the racial impacts of that control—are more subtle, reflected in administrative inaction, buried in complex bureaucratic structures, or even framed as positive environmental initiatives. The diffusion of responsibilities for water administration between different levels of government can further obscure discriminatory impacts that would be more visible in a unified system. Neutral-sounding terminology may also hide the racial realities.

        This Article argues that the complexities of household water billing combined with the indifference of utilities and government authorities to the needs of “hard-to-reach” water consumers—primarily renters in multi-family dwellings—have left many low income, disproportionately minority tenants, excluded from programs designed to help with rising water and wastewater expenses.”

July 26, 2022 in Books and articles, Water | Permalink | Comments (0)

Thursday, July 14, 2022

New Article: Defining Sexual Orientation: A Proposal for a New Definition

Andrew Park, Defining Sexual Orientation: A Proposal for a New Definition, Michigan Journal of Gender and Law, Volume 29 (2022). Abstract below.

Laws prohibiting discrimination based on sexual orientation are becoming more common in all parts of the world. Few of these laws provide useful definitions of the term sexual orientation. As a result, the meaning and impact of these laws remains unclear. This article reviews past and current definitions of sexual orientation according to how well they incorporate current empirical knowledge of sexual orientation, and how their use in human rights laws impacts the dignity, right to equality, and human development of sexual minorities. The Article gives particular attention to the definition of sexual orientation found in the Yogyakarta Principles which has been adopted by a number of jurisdictions throughout the world. Because this definition views sexual orientation through a heteronormative lens, its use restricts sexual freedoms and undermines the dignity of individuals with non-conforming sexual orientations. The Article proposes a multidimensional definition of sexual orientation grounded in current scientific knowledge of how sexual orientation is manifested in the lives of sexual minorities.

July 14, 2022 in Books and articles, LGBT, Sexuality | Permalink | Comments (0)

Sunday, July 10, 2022

New Article: The Right to Remain

Timothy E. Lynch, The Right to Remain, Washington International Law Journal, Volume 31 (June 2022) Abstract below.

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens—both documented and undocumented—except under the rarest circumstances. As a result, the ICCPR right to remain in one’s own country is a right that should be particularly valuable to the many people in the world who have lived in, and established a relationship with, a country which is not their country of citizenship—including lawful permanent residents, long-term refugees, Dreamers and other long-term undocumented residents, and people born in countries without birthright citizenship. These people cannot be deported from the countries they call home.

July 10, 2022 in Books and articles, Immigrants, Refugees | Permalink | Comments (0)

Tuesday, July 5, 2022

New Article: Localizing Human Rights in Cities

Tamar Ezer, Localizing Human Rights in Cities, Southern California Review of Law and Social Justice (Winter 2022).  Abstract below.

Today, we live in a world where norms can all too easily disintegrate.  Moreover, our realities are increasingly splintered with individually tailored social media, news sources, and search engines.  International human rights can provide a needed moral and legal compass, connecting us to global conversations and standards.  At the same time, to be meaningful, these standards must be localized and interpreted at community level.

Over the last two decades, cities throughout the world have espoused international human rights in various forms.  This development has caught on in the United States with close to a dozen self-designated human rights cities and a vibrant “Cities for CEDAW” movement, focused on protection of women’s rights.  This article probes this growing phenomenon and argues that local human rights implementation is a critical frontier, enabling a human rights approach to governance, strengthening participation and equality.  Closer to communities, human rights cities can democratize rights and move beyond the citizen construct at national level to embrace all inhabitants.  Cities also provide a critical vehicle to negotiate the inherent tension between the universality of human rights and respect for cultural and regional diversity.  Moreover, cities are particularly important as human rights actors in the US context, where federalism limits the reach of international treaties to address issues touching on criminal law, social welfare, and family relations, critical to women’s rights.  Cities can thus play a crucial role in realizing women’s equality, addressing cultural norms, jurisdictional barriers, and disparate impacts. The article further provides recommendations for better engagement with cities as human rights actors, currently in its infancy, at international, national, and local levels.

July 5, 2022 in Books and articles | Permalink | Comments (0)

Thursday, June 2, 2022

New Article: Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?

Juliana Palmieri, Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?, Pace International Law Review, Volume 34, Issue 2 (May 2022). Abstract below.

This article examines the relevant international law associated with genocide and hate speech and examines whether there are any legal grounds to hold a corporation liable for how people chose to use its product or service in relation to human rights violations. The analysis begins with a brief overview of international criminal and human rights law, relevant treaties, jurisdictional issues, and the legal theories of corporate criminal liability and complicity. Because current international law provides no clear answer, this article proposes that international courts use a balancing test which evaluates a non-exclusive list of ten main factors.

 

June 2, 2022 in Books and articles, Business | Permalink | Comments (0)

Tuesday, May 31, 2022

New Article: Children's Rights and Human Rights Education Through Museums

Jonathan Todres and Anissa Malika, Children's Rights and Human Rights Education Through Museums, Boston University Public Interest Law Journal, Vol. 31, No. 3, pp. 239-274 (2022). Abstract below.

Human rights education has been recognized as critical to the advancement of human rights and the promotion of rights-respecting communities. Despite its value, many countries have lagged in their efforts to implement human rights education programs. Where human rights education has gained traction, it has been largely centered around school-based learning. For human rights education to be successful, policymakers and practitioners need to be creative in exploring diverse ways to implement and advance human rights education. This Article argues that it is critical for human rights education and, more specifically, children’s rights education to expand beyond classroom-based learning opportunities to take advantage of other spaces where young people spend time and where education about rights is possible. Given the value of the arts as a vehicle for expressing and advocating for human rights, this Article explores the role that museums might play in advancing human rights education for children. Museums are important fixtures in many cities and towns across the globe. In the United States, nearly 60% of the population visits a museum at least once a year. This gives museums broad reach and the potential to make human rights widely known. Further, shifts currently occurring within museums suggest this is a particularly important time to consider the role of museums vis-à-vis human rights. Many museums are becoming more focused on social justice issues. This evolution occurring in many museums highlights an opportunity for greater and deeper engagement among museum professionals, educators, and human rights researchers and advocates. This Article makes the case for growing and deepening such partnerships. It emphasizes the importance of attention to children’s rights and ensuring that all museums, not just children’s museums, consider their role in engaging young people on the topic of human rights.

May 31, 2022 in Books and articles, Children | Permalink | Comments (0)

Thursday, May 26, 2022

New Article: Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation

Rebecca K Helm and Hitoshi Nasu, Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation, Human Rights Law Review, Volume 21, Issue 2, (June 2021). Abstract below.

National authorities have responded with different regulatory solutions in attempts to minimise the adverse impact of fake news and associated information disorder. This article reviews three different regulatory approaches that have emerged in recent years—information correction, content removal or blocking, and criminal sanctions—and critically evaluates their normative compliance with the applicable rules of international human rights law and their likely effectiveness based on an evidence-based psychological analysis. It identifies, albeit counter intuitively, criminal sanction as an effective regulatory response that can be justified when it is carefully tailored in a way that addresses legitimate interests to be protected.

May 26, 2022 in Books and articles | Permalink | Comments (0)

Tuesday, May 24, 2022

New Article: Human Rights Council's Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground

Kazuo Fukuda, Human Rights Council's Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground, 20 Nw. J. Hum. Rts. 63 (2022). Abstract below.

Highly acclaimed as a key innovation of the United Nations Human Rights Council, the Universal Periodic Review (UPR) was created in 2006 as a cooperative, peer-review mechanism to shift away from the highly politicized Commission on Human Rights. Despite the significance and hope attached to the UPR, it has been conspicuously under-examined in the U.S. legal scholarship. And most relevant literature elsewhere has avoided directly addressing the fundamental question of exactly what the UPR’s added value is to the global human rights regime in terms of its direct contribution to improving human rights situations on the ground. This is mainly due to methodological and analytical challenges to measure the impact of the UPR in isolation from other existing human rights mechanisms. While acknowledging such challenges, this article attempts to provide one such answer to the question from a normative perspective: it argues that the UPR’s added value lies in providing a forum to incrementally and constantly challenge the threshold of states under review for accepting their commitment to addressing controversial human rights issues. Drawing from the experiences of the Lao People’s Democratic Republic and other countries as well as the literature on peer pressure and acculturation, this article articulates the current issues of the UPR mechanism in terms of recommendations given to states under review by their peers and suggests the way forward for the UPR mechanism by reframing it as a forum of fighting for borderline recommendations.

May 24, 2022 in Books and articles | Permalink | Comments (0)

Tuesday, May 17, 2022

New Article: Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law

Aoife Daly, Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law, Human Rights Law Review, Volume 22, Issue 2 (June 2022). Abstract below.

Those who are under-18 are not often associated with the exercise of political rights. It is argued in this article however that youth-led climate activism is highlighting the extensive potential that children and young people have for political activism. Moreover, youth activists have come to be seen by many as uniquely competent on climate change. Youth activists have moved from the streets to the courts, utilising national and international human rights law mechanisms to further their cause. They are not the first to do so, and the extent of their impact is as yet unclear. Nevertheless, it is argued here that through applications such as Saachi (an application to the Committee on the Rights of the Child) and Duarte Agostinho (an application to the ECtHR) they are shifting the human-centric, highly procedural arena of international human rights law towards an approach which better encompasses person-environment connections.

May 17, 2022 in Books and articles | Permalink | Comments (0)

Sunday, May 15, 2022

New Article: The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?

Roman Girma Teshome, The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?, Human Rights Law Review, Volume 22, Issue 2 (June 2022). Abstract below.

The draft Convention on the Right to Development is being negotiated under the auspices of the Human Rights Council. This article seeks to explore the merits and the added value of the draft in terms of its normative contents particularly compared with its soft law predecessor—the Declaration on the Right to Development. It argues that the draft is a momentous step in the recognition of the right to development as a human right not only because it is binding, if adopted, but also contains concrete, detailed and implementable norms. While it maintained the abstract and aspirational formulation of norms under the Declaration to a certain extent, the draft also addresses some of the prevailing gaps and limitations of the Declaration.

 

May 15, 2022 in Books and articles | Permalink | Comments (0)

Thursday, April 28, 2022

Student Note: How the Grand Jury Process Diminishes Black Lives by Supporting Police Brutality and Racism

Kaeleigh Williams, How the Grand Jury Process Diminishes Black Lives by Supporting Police Brutality and Racism (2022). Abstract below.

Although the topic of police brutality and the need for police reform has been a popular topic of debate in recent years, the problem of police brutality is nothing new in the U.S. In the U.S, the harsh reality is that the problem of police brutality against Black people goes far beyond the highly publicized incidents. Police officers disproportionately kill Black people in America with impunity because our system of policing encourages such violence, and our legal system protects the use of such violence.  

This Note focuses on the problem of Black lives being unjustly taken by police officers and how there are very few instances where the police officers involved are charged for the deaths in these cases, let alone held accountable for their actions. Specifically focusing on the grand jury process and its downfalls, this Note argues that the grand jury process should not be used in cases of police brutality. Lastly, it calls for action from everyone, especially players in the legal system, in which everyone takes a stand against the problem of police brutality against Black people and understand that Black lives matter.  

Download Student Note (K. Williams)

April 28, 2022 in Books and articles, Criminal Justice | Permalink | Comments (1)

Thursday, April 14, 2022

New Article: Funding Global Governance

Kristina B. Daugirdas, Funding Global Governance, Law & Economics Working Papers. 216 (Oct. 1, 2021). Abstract below.

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have devised strategies for mitigating these risks, but those strategies are generally not codified in formal policies and are not visible to the public. This Article argues that more formal regulations are needed and outlines some possibilities for the form they might take.

April 14, 2022 in Books and articles, Global Human Rights, United Nations | Permalink | Comments (0)

Tuesday, March 29, 2022

New Article: Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR

Paulina Lucio Maymon, Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR, American University International Law Review, Vol. 37: Iss. 1, Article 3 (2022). Abstract below.

Research suggests that when women commit an offense against another’s life, they often do it in the context of domestic violence. Nevertheless, state and federal courts in the United States continue to ignore or inappropriately consider female defendants’ histories of domestic abuse and trauma in their criminal trials for killing their abusers. Many courts in the United States taint female defendants’ criminal trials by injecting gender biases and stereotypes, which often leads to miscarriages of justice. This Comment argues that the United States has violated female defendants’ rights to equality before the law under article 26 of the International Covenant on Civil and Political Rights (ICCPR) through its courts, which have discriminated against them on the basis of sex in their criminal trials for killing their abusers. National and local statistics and the criminal trials of five women convicted and sentenced for killing their batterers are analyzed to prove this violation. The Comment provides recommendations to prevent future violations and to provide redress to the women whose human rights were infringed. Although this article focuses on the United States, it outlines a pathway for women in other jurisdictions to assert their rights to equality before the law, under the ICCPR, when courts judge them based on myths and stereotypes.

March 29, 2022 in Books and articles, Domestic Violence, ICCPR, Women's Rights | Permalink | Comments (0)

Wednesday, March 16, 2022

News: In US v. Husayn (Abu Zubaydah), the Supreme Court Calls Torture What It Is

Joseph Marguiles, In US v. Husayn (Abu Zubaydah), the Supreme Court Calls Torture What It IsJust Security (March 11, 2022). Excepts below.

"As I read the decision, Abu Zubaydah can rely on 28 U.S.C. Sec. 1782 to depose the architects of the CIA torture program, James Mitchell and Bruce Jessen, about what they saw, did, smelled, heard, and said – in short, about whatever their senses revealed to them – between December 2002 and September 2003, in support of a foreign criminal investigation underway in Poland."

[...]

"There is a space where conservative and liberal voices join. It is the belief that government service is a privilege, but only when government is honorable. When elected leaders betray their allegiance to the law and abandon their faith in the cleansing power of the truth, they must find no quarter in the Court."

March 16, 2022 in Books and articles | Permalink | Comments (0)

Sunday, March 13, 2022

New Article: Human Rights Originalism

Katharine Young, Human Rights Originalism, Georgetown Law Journal, Vol. 110, No. 5 (2022). Abstract below.

Are human rights to be found in living instruments and practices that adapt to changing circumstances, or must they be interpreted according to their original meaning? That question, so heavily debated in the context of the rights of the U.S. Constitution, was never seriously on the table until 2020. But when former Secretary of State Mike Pompeo called for “fresh thinking” about human rights, and its connection with “our nation’s founding principles,” he brokered a return to two landmark instruments of human rights—the Declaration of Independence of 1776 and the Universal Declaration of Human Rights of 1948. His Commission on Unalienable Rights obliged, presenting the familiar tropes of fixed sources, venerated authorship, and national identity, in order to accomplish a drastically different presentation of the meaning of human rights. The end result is an act of fusion—the powerful political and cultural valence of America’s constitutional originalism, applied to the human rights of American foreign policy.

This Article identifies this innovation as “human rights originalism.” Although the Report of the Commission on Unalienable Rights has, at least for now, been shelved, human rights originalism may be one of the most enduring legacies of the Trump Administration. As an interpretive theory, human rights originalism promises many of the same benefits as its constitutional counterpart—simplicity, popular reach, and control of rights’ unruliness and proliferation—this time wrested from unaccountable United Nations institutions and experts rather than courts. As a substantive departure from contemporary human rights, human rights originalism elevates the importance of religious freedom and property rights, and provides a selective diminishment of women’s rights, LGBTQ+ rights, and racial equality, mirroring and further cementing current trends in originalist constitutional doctrine. The four standard epistemic communities that supply “meaning” to human rights—in the international, comparative, transnational, and philosophical domains—are all rejected by originalism, just as those domains are themselves inimical to it.

This homegrown form of human rights argument is significant for human rights law and foreign policy, but so too is it significant for originalism itself. In propelling originalism into the uncompromisingly global domain of human rights, originalism’s proponents expose the nationalism and exceptionalism that are perhaps its most unsettling features. At the same time, originalism’s own malleability is highlighted in its adaptiveness to the modern administrative state and the promises of the postwar period.

 

March 13, 2022 in Books and articles | Permalink | Comments (0)