Human Rights At Home Blog

New Article: Solidarity as a Constitutional Value

Tamar Hostovsky Brandes, Solidarity as a Constitutional Value, Buffalo Human Rights Law Review, Vol. 27, No. 2 (2021). Abstract Below.

In the face of the threats posed by the COVID-19 pandemic, Solidarity has become the term of the hour. The World Health Organization organized a “solidarity series of events”, under the hashtag “together at home”, and chose the title “Solidarity” for the ambitious global initiative to find a treatment to the virus, establishing a “Solidarity” response fund. Within countries, solidarity was raised as a value requiring the imposition of various social distancing measures and limitations, needed, it was argued, in order to protect both society as a whole, as well as individuals who were especially vulnerable to the virus.

The different approaches taken by countries in responding to the COVID-19 crisis can, in part, be explained by the different social perceptions regarding the importance of social solidarity and the duties that stem from it. The notion of solidarity, explored below, underlies the web of mutual commitments among members of a community, and, in the case of states, among members of the political community.

This article examines the role solidarity can play when recognized as a constitutional value. Narratives of solidarity are prevalent in constitutions world-wide, both implicitly and explicitly. Despite this prevalence, constitutional scholarship has paid relatively little attention to the notion of solidarity. The article aims to take a step in filling this gap. It calls for recognition and discussion of the significance, potential and perils of recognizing solidarity as a constitutional value and of applying it in constitutional adjudication.

The article argues that despite the liberal aversion of the notion of solidarity, which is understandable in light of potential abuses of the concept to justify limitations of individual freedom, solidarity is a precondition for the existence of just societies and for distributive justice, as well as for ensuring that human rights are equally and inclusively realized.

The article argues that the relationship between collective identity and solidarity is complex, that solidarity is a multi-layered phenomenon, and that these complexities can and should be reflected in the constitutional manifestation of solidarity. Constitutions do and should refer to more than one layer of solidarity, and courts can and should play a part in instilling substance in these layers. Where solidarity is recognizing as a value, it can serve to examine the effect of laws and policies on under-privileged members of society, and as a source for deriving duties towards them.

Finally, the article argues that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity, that is, solidarity among members of the political community, constitutions can and do endorse notions of transnational solidarity. The article argues that constitutionalism can thus be an important source of “bottom-up” transnational and global solidarity.

New Article: The Disparate Treatment of Rights in U.S. Trade

Desirée LeClercq, The Disparate Treatment of Rights in U.S. Trade, Fordham Law Review, Vol. 90, No. 1 (2021). Abstract below.

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake.

Using labor rights as a case study, this Article discerns the rationale for incorporating rights into U.S. trade policy. Properly understood, U.S. policymakers incorporate some rights into U.S. trade agreements because they view those rights as critical to protecting national industries and citizens from unfair trade conditions. Efforts to incorporate rights as the ends rather than the means to trade policy accordingly fail to resonate with policymakers. Those efforts also fail to appreciate the significant policy drawbacks of coupling trade law and international rights law, such as conflicts between international law and domestic federal and state laws, and challenges to domestic processes in the United States and abroad. Nevertheless, there are alternative ways that the United States may protect international rights while preserving the sanctity of both

New Article: Investors as International Law Intermediaries: Using Shareholder Proposals to Enforce Human Rights

Kisha Parella, Investors as International Law Intermediaries: Using Shareholder Proposals to Enforce Human Rights, Seattle University Law Review, Vol. 45, No. 2 (forthcoming 2022). Abstract below.

One of the biggest challenges with international law remains its enforcement. This challenge grows when it comes to enforcing international law norms against corporations and other business organizations. The United Nations Guiding Principles recognizes the “corporate responsibility to respect human rights,” which includes human rights due diligence practices that are adequate for “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.” Unfortunately, many corporations around the world are failing to implement adequate human rights due diligence practices in their supply chains. This inattention leads to significant harms for the victims of these human rights abuses and a variety of risks – legal, reputational, business, and regulatory – for the companies involved. Over the years, lawsuits have been brought against Walmart, JC Penney, Hershey, Nestle, Purina, Tesla, Google, Chevron, and many others regarding their human rights practices.

This Article explores how shareholders have attempted to change the human rights due diligence practices of companies by submitting shareholder proposals requesting information on a company’s human rights policies, assessments, and implementation strategies. While many of these resolutions are filed by faith based organizations and other members of the Interfaith Center on Corporate Responsibility (ICCR), recent proposals have also received support from actors such as BlackRock and Vanguard. This Article provides a descriptive account of the proposals submitted, evaluates the various shareholder reasons for proposing and supporting these proposals, discusses the outcomes of these proposals (such as approval, exclusion, and withdrawal), and analyzes the possibilities and limitations of enforcing international human rights norms through the mechanism of shareholder proposals.

Margulies and Azmy Respond to Moyn

By Lauren E. Bartlett

A couple of weeks ago Yale Law professor Samuel Moyn wrote a scathing and seemingly unfounded attack on the late Michael Ratner of the Center for Constitutional Rights in the New York Review of Books. I had considered posting about that piece here, but decided that it was too strange and awkward, personally blaming one man who had passed away five years earlier for the endless war on terror, to be worthy of additional attention.

However, Joseph Margulies and Baher Azmy’s response to Moyn in Just Security is more than worth a read. Margulies and Azmy, as practicing attorneys, litigators, present their point of view in light of their long careers and personal experiences working alongside Ratner.   

In summing Moyn’s criticism of Michael Ratner, Margulies and Azmy state:

The idea is that by challenging detentions rather than the war itself…Ratner…validated the war on terror. And by smoothing down the roughest edges of the detention policy—providing detainees with a largely symbolic right of access to the courts, for instance—[he] gave a patina of legitimacy to what is at its core an illegal, immoral war, and in that way enabled our current quagmire of endless, boundless conflict.

Margulies and Azmy argue in response that “the idea that the detention litigation in general, or Rasul in particular, is somehow the reason the war on terror has become an endless, lawless monster is just silly” and also point out that “a person can obviously oppose war and torture at the same time, and Michael did both.”

They also point out that Moyn may also be “simply making the spectacularly banal point that litigation has unintended, and sometimes tragic consequences.” To that point, Margulies and Azmy respond:

But as our friend and Yale law professor Hope Metcalf says, “so what?” No experienced civil rights lawyer, and certainly not one as political as Michael Ratner, needs a law professor to explain that the courts are not a reliable friend of the weak. The insight that litigation by itself cannot achieve progressive change was old when Gerald Rosenberg put it in writing 30 years ago. And tying this observation to a larger political lesson—that power adapts to protect its interests—was old when Marx wrote it down nearly two centuries ago.

I think Margulies and Azmy also did a wonderful job of highlighting the best of what Michael Ratner did, which is what the best human rights advocates do best:

lending our voice to men whose voices had been silenced, and demanding that the law protect them when the state would not.

 

 

Fight to Expose the Hidden Human Costs of Incarceration: Profile of Law Professor Andrea Armstrong

Law professor Andrea Armstrong at Loyola University New Orleans College of Law is profiled in the August 23, 2021, issue of the New Yorker. The article centers on her work to collecting and publicizing information about deaths of those incarcerated in detention facilities in Louisiana, but also covers her legal career, scholarship, advocacy, and even her personal life.  It is an inspiring portrait of a law professor fighting for the protection of rights of the incarcerated in her home state. 

Eyal Press, A Fight to Expose the Hidden Human Costs of Incarceration, The New Yorker, Aug. 23, 2021 Issue.

 

New Article: “One of the greatest human tragedies of our time”: The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons

Lauren E. Bartlett, "One of the greatest human tragedies of our time": The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons, Mitchell Hamline Law Journal of Public Policy and Practice, forthcoming Fall 2021. Abstract below.

Children in cages, rampant sexual abuse, lack of access to life-saving medical treatment, and more. These human rights violations continue to occur in immigration prisons in the United States today, and given the scope, many, including the United Nations, are pushing the United States to abolish immigration prisons altogether. However, the Biden administration has demonstrated that is not interested in supporting the abolition of immigration prisons, not even in the international human rights arena.

After providing a brief overview of international human rights law prohibiting immigration prisons, this essay explores U.N. recommendations on immigration prisons from each of the Universal Periodic Reviews of the United States over the past ten years, as well as the U.S. responses to those recommendations. Through that exploration, it is made clear that while the Biden administration has showed an eagerness for reform in other areas, the administration missed an important opportunity this year to step up as a global leader and demonstrate commitment to the progressive realization of the full spectrum of human rights of migrants and set the United States on a path towards the abolition of immigration prisons.

New Article: Convention on Human Rights of Older Persons

Alan Gutterman, Convention on Human Rights of Older Persons (June 29, 2021), available on SSRN. Abstract below.

Many have argued that it is appropriate to take into consideration the special circumstances of older persons when developing social and economic policies and there is a growing consensus regarding the need for explicit recognition of the specific rights of older persons in the form of an international convention or treaty that would raise the profile of the issues, serve as a basis for action in different contexts and empower advocates and members of that group to act. In addition, making certain rights explicitly applicable to older persons reduces the likelihood that they will be overlooked in the existing generic framework of human rights instruments that generally does not refer to age but relies solely on inferences that may be ignored or lack practical authority because they are difficult to apply to contexts that are different than those for which they were originally developed. Various arguments against and for a specific international convention or treaty for older persons have been made; however, the Covid-19 pandemic has created a new sense of urgency for such an instrument given the egregious violations of the human rights of such persons during the response to the emergency including discrimination, exclusion, marginalization, violence and abuse. Several roadmaps are available for negotiating and completing a new legally binding international instrument on the human rights of older persons including the UN Convention on the Rights of Persons with Disabilities, the Madrid International Plan of Action on Aging, the UN Principles for Older Persons and the Inter-American Convention on the Protection of the Human Rights of Older Persons and human rights advocates have grown frustrated with the pace of progress within the UN Open-Ended Working Group on Aging and urged States to stop talking and start writing in order to bring the project to fruition.

New Article: The Intellectual Property Turn in Global Health: From a Property to a Human Rights View of Health

Laura G. Pedraza-Fariña, The Intellectual Property Turn in Global Health: From a Property to a Human Rights View of Health, 36 Osiris 241 (2021), Northwestern Public Law Research Paper No. 21-20. Abstract below.

International intellectual property (IP) law for pharmaceuticals has fundamentally shifted in the twenty-first century from a property-centric to a human rights view. Scholars tend to explain this transformation in the context of both the power struggle between developing and developed countries, and the influence of a social movement that criticized IP rights as hindering access to essential medicines. Yet, these explanations leave out the central role of two international organizations, the World Trade Organization (WTO) and the World Health Organization (WHO), and particularly their permanent staffs, whose boundary disputes have shaped international IP law at the intersection of trade and global health. Bringing into conversation historical and legal literatures on global health and IP, this article traces how a human rights perspective on IP emerged as a strategy to reconcile the WHO staff’s sociomedical views of health with an increasingly dominant set of global IP rules. It shows how the WHO staff used the language of economics—an analytical frame favored by the WTO—to advance a then unorthodox economic understanding of IP as a type of governmental regulation. This allowed the WHO to argue that states should enjoy regulatory autonomy to curtail IP rights in order to meet broader state objectives, such as human rights protection. Paradoxically, despite their divergent views on the nature of IP, both WTO and WHO engagement with it heralded the emergence of a new technocratic view of global health that focuses on patentable medicines and technologies, and that has ultimately turned away from the WHO’s sociomedical roots.

Queering Bostock

Editor's Note:   Prof. Jeremiah Ho. has a new article addressing Bostock v Clayton County, Georgia.  Prof. Ho examines the limitations of the opinion, including the opinion's design to maintain the status quo for members of the LGBT+ community and those who benefit from the current social structure.  The article, Queering Bostock, is to be published imminently in the American University Journal of Gender, Social Policy & the Law, Vol. 29, No. 3, 2021.  Queering Bostock is available on SSRN.  

Below is the abstract:

Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases that invigorate discrimination against queer individuals. In contrast, Bostock avoids any meaningful acknowledgment of the lives of the litigants or the experiences of anti-queer bias in exchange for a lengthy illumination of Justice Gorsuch’s textualist rationale.

When conceptions of sexuality and gender identity have been previously mischaracterized in favor of mainstream heteronormative values, the lived experiences of queerness are paramount for detecting discrimination and correcting it. This Article argues that Bostock’s neglect of queer lived experiences was not a forgivable oversight, merely collateral to its expansive textualist reading of Title VII. Rather, the neglect of lived experiences and anti-stereotyping frameworks was the price queer minorities had to pay for Title VII protection. In this way, this Article shows that Justice Gorsuch’s lack of regard for the lived experiences in Bostock tacitly privileges heteronormative values, underscores the status quo’s interest convergence, and ultimately limits the decision’s transformative appeal.

New Article: Global Impunity: How Police Laws & Policies in the World's Wealthiest Countries Fail International Human Rights Standards

Claudia Flores, Brian Citro, Nino Guruli, Mariana Olaizola Rosenblat, Chelsea Kehrer, and Hannah Abrahams, Global Impunity: How Police Laws & Policies in the World's Wealthiest Countries Fail International Human Rights Standards, 49 Ga. J. Int’l & Comp. L. 243 (2021). Abstract below.

The use of lethal force by law enforcement falls within the constraints set by international human rights. In particular, four standards govern whether and to what extent police may use lethal force: legality, necessity, proportionality, and accountability. However, every year, tens of thousands of civilians die at the hands of law enforcement worldwide, indicating a dysfunction in the nature of policing at a global scale. This study examines the written directives provided to police officers in the largest cities of the twenty-nine wealthiest countries and evaluates their compliance with the above standards. The study concludes that none of the directives in these cities complied with basic human rights standards, falling short in a variety of ways. By evaluating these directives, the report sheds light on enduring concerns about government abuses of power and suggests a way to constrain police use of force going forward.

New Article: Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda

Charlotte Alexander and Jonathan Todres, Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda, University of Pennsylvania Journal of International Law, Vol. 43, forthcoming 2021. Abstract below.

Human rights law relies on national-level implementation and enforcement to give it full meaning. The United Nations’ reporting process, a built-in component of all major human rights treaties, enables monitoring and evaluation of countries’ progress toward human rights goals. However, the operation and effectiveness of this process have been largely under-studied. This Article lays the foundations for a data analytics research agenda that can help assess the reporting process and inform human rights law implementation. As a first step, we use a relatively new set of computational tools to evaluate the Concluding Observations issued by a human rights treaty body, the Committee on the Rights of the Child. The Concluding Observations provide both an appraisal of states’ practices and a set of recommendations that act as an agenda for the state going forward. Using text and data analytics tools, we mined the text of Concluding Observations issued by the Committee on the Rights of the Child over a twenty-seven year period to identify the topics addressed in each report and parsed the language of these reports to determine the tenor and tone of the Committee’s discussion. We then mapped our findings by state and year, to form a detailed descriptive picture of what the Committee has said, and how the Committee has delivered its message(s), across both geography and time. In doing so, we hope to show how these data analytics tools can contribute to a deeper understanding of the Committee’s work and, more broadly, of the effectiveness of the reporting process in securing and protecting human rights.

New Article: Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach

Maria Massimo, Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach, 62 B.C. L. Rev. 273 (2021). Abstract below.

Throughout its history, the United States has perpetuated a double standard in regard to international human rights by urging other nations to protect and promote these rights, while simultaneously forgoing international human rights treaties in favor of its own Constitution and domestic human rights laws. Notably, the United States does not recognize one of the fundamental rights introduced by the Universal Declaration of Human Rights in 1948 and contained in the International Covenant on Economic, Social and Cultural Rights: The right to adequate housing. Failure to recognize housing as a human or constitutional right has led to a worsening affordable housing crisis in the United States. Domestic policy has proven insufficient to combat this crisis, and the United States must adopt a different approach for resolution. This Note argues that state governments should borrow from international human rights treaties and foreign housing law, and recognize housing as a justiciable right in an attempt to mitigate the affordable housing crisis. States can best ensure a right to housing by including housing as a right in their respective constitutions and creating oversight bodies to promote and protect this new constitutional right.

New Article: Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border

Jeffrey R. Baker and Allyson McKinney Timm, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, 13 Drexel Law Review 581 (2021). Abstract below.

In 2017, the Trump Administration imposed its policy of zero-tolerance immigration enforcement on the southern border. This policy resulted in the forcible separation of families and the prolonged detention of children in harsh conditions, without due process or adequate resources. The Trump Administration unleashed these policies to deter people from immigrating and seeking asylum, consistent with President Trump’s racist rhetoric and campaign promises. This article analyzes and critiques these policies based on international human rights law, noting the resonance human rights norms find among diverse religious traditions.

The article begins with detailed analysis of the Trump Administration’s policies that divided families and detained children in wretched conditions, in violation of U.S. law. It proceeds to evaluate and criticize these policies under treaties ratified by the U.S., conventions it has signed but not ratified, and established customary international law. In the name of border enforcement and immigration deterrence, the Trump Administration’s policies violated the fundamental human rights of migrants and people seeking asylum in the United States, including the right to family life, rights of the child, and rights to be free from ill-treatment and arbitrary detention. The abrupt and often permanent separation of families, the indefinite detention of children without proper care, and the failure of process in these policies are all stark violations of binding international human rights laws. These policies affront the moral conscience of multitudes, eliciting sustained protest from civil society and faith leaders.

The article concludes with a recognition that international institutions and legal mechanisms may not be adequate to compel the Trump Administration to respect international law, so political and electoral responses are vital to ensure that human rights remain at the heart of the American enterprise. It suggests the accord between religious, ethical perspectives and human rights principles is valuable to reinforcing popular support for these norms. As the world bears witness to these cruel abuses of human rights, Americans must decide whether and how to hold the government accountable for the inherent dignity of all people within the rule of law.

New Article: Transnational Racial (In)Justice in Liberal Democratic Empire

E. Tendayi Achiume, Transnational Racial (In)Justice in Liberal Democratic Empire, 134 Harv. L. Rev. F. 378 (2021). Introduction excerpt below.

"On June 17, 2020, Philonise Floyd addressed the United Nations Human Rights Council, the United Nations’ paramount human rights body, demanding justice for the murder of his brother and the many other Black people who have been subject to the regime of racial extrajudicial killings endemic in the United States. His testimony was part of a remarkable “Urgent Debate” — an emergency special session of the Human Rights Council reserved for extreme human rights situations. We might think of this Urgent Debate as marking a pivotal global moment in the transnational racial justice uprising that coalesced under the banner “Black Lives Matter” during the northern hemisphere summer of 2020. This Urgent Debate was unprecedented for a number of reasons. It was the first triggered by a human rights situation in a, if not the, global hegemon of our time, the United States. It was also the first and only to date concerning a human rights crisis in a country widely considered a liberal democratic paragon, for which the global human rights receivership processes, implicitly associated with U.N. intervention, could not possibly be intended or appropriate, at least from the perspective of other liberal democratic countries and observers. And finally, it was the first and only explicitly framed as concerning systemic racial injustice and anti-Black racism in a First World nation-state."

 

 

New Article: Human Rights Disclosure and Due Diligence Laws: The Role of Regulatory Oversight in Ensuring Corporate Accountability

Rachel Chambers and Anil Vastardis, Human Rights Disclosure and Due Diligence Laws: The Role of Regulatory Oversight in Ensuring Corporate Accountability, 21 Chicago Journal of International Law (2021). Abstract below.

The proliferation of human rights disclosure and due diligence laws around the globe is a welcome development in the area of business and human rights. Corresponding improvement in conditions for workers and communities in global supply chains whose human rights are impacted by businesses has not materialized, however. In this Article, we focus on the oversight and enforcement features of human rights disclosure and due diligence laws as one of the missing links to achieving the accountability objectives envisaged by such legislation. Drawing on our analysis of key legislative developments, we observe and critique that the state has almost completely withdrawn itself from the oversight and enforcement roles and assigned these crucial accountability functions solely to consumers, civil society, and investors. Without a regulatory mechanism to ensure quality of human rights disclosures and due diligence processes and to impose sanctions for failing to comply with the laws, not only may the disclosures and processes be inadequate, but there is a danger that misleading disclosures and flawed processes may mask harmful impacts and be detrimental to any hopes of vindicating the rights of workers and communities in global supply chains. We offer a new perspective on a more effective approach to oversight and enforcement in which the state should function as a key actor through which consumers, civil society, and investors can hold businesses accountable.

New Article: White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States

Baylis, Elena A., White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States (May 18, 2021). U. of Pittsburgh Legal Studies Research Paper No. 2021-16, University of Illinois Law Review, 2022 forthcoming. Abstract below.

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have a federal law prohibiting crimes against humanity. This Article first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.

New Articles: Just Security Series on newly released “Méndez Principles"

Just Security is publishing a series of articles starting this week which outline the origins and the scientific, legal, and ethical underpinnings of the newly released “Principles on Effective Interviewing for Investigations and Information Gathering,” also known as the “Méndez Principles.”  These principles are an expert-led initiative responding to a 2016 appeal to the U.N. General Assembly by former U.N. Special Rapporteur Juan E. Méndez to develop such standards.

The Méndez Principles series on Just Security is being compiled here.

New Article: Reckoning: A Dialogue About Racism, Antiracists, and Business & Human Rights

George, Erika R. and Martin, Jena and Van Ho, Tara, Reckoning: A Dialogue About Racism, Antiracists, and Business & Human Rights (April 22, 2021). WVU College of Law Research Paper Forthcoming, Washington International Law Journal, Vol. 30 (2021). Abstract below.

Video of George Floyd’s death sparked global demonstrations and prompted individuals, communities and institutions to grapple with their own roles in embedding and perpetuating racist structures. The raison d’être of Business and Human Rights (BHR) is to tackle structural corporate impediments to the universal realization of human rights. Yet, racism, one of the most obvious of such barriers, has been a blind spot for BHR. While the field has contended with gender inequality, there have only been tokenistic nods to intersectional harms caused by business activities. The failure to address racism seriously undermines both the promise of BHR generally and specifically the recognized need to redress intersectional harms experienced by women from racialized backgrounds. In this article, three established BHR scholars enter into a dialogue on racism in BHR’s theory and practice. The article is not aimed at providing definitive answers, but instead at asking the questions necessary for understanding how BHR embeds, or may combat, racism. By engaging in a dialogic inquiry, the authors are able to highlight, examine, and analyze different approaches to these issues. The result is both an opening salvo on the intersection of critical race theory and BHR and an identifiable research agenda for future scholarship in the area.

The article proceeds in six substantive parts. Part I explains our choice of a dialogic methodology while Part II situates the inquiry in literature on structures of race and racism, critical race theory in law, and BHR. The dialogue begins in Part III with an interrogation of the terms “racist” and “antiracist” before Part IV contemplates whether BHR is racist, antiracist, or a tool that can be used to pursue either agenda. Because BHR is built on, and embedded with, capitalist theory, we examine capitalism’s racist foundations and question whether BHR can extricate itself from that origin. We then engage with the opposite end of the spectrum; what we call “Black Lives Marketing,” in Part V. Businesses may brand and market themselves as antiracist without ever undertaking the internal structural reforms necessary to be antiracist. We consider the demands BHR places on businesses to both adopt and to use their leverage to affect real change. The dialogue concludes in Part VI with reflections on the personal and professional impact of confronting racism within our fields of expertise. We conclude the article by noting that the dialogic methodology transformed the nature of the article, bringing a depth to our discussion that would not have been achieved otherwise.

New Articles: UCLA Law Review's Issue on Transnational Legal Discourse on Race and Empire

The UCLA Law Review recently published a full issue on Transnational Legal Discourse on Race and Empire.  All of the articles in that issue resulted from its January 2020 law review symposium featuring Third World Approaches to International Law scholars and Critical Race Theory scholars engaged in collaboration.

UCLA Law Review Volume 67, Issue 6 is available here.  Wadie E. Said writes The Destabilizing Effect of Terrorism in the International Human Rights Regime, Adelle Blackett with Alice Duquesnoy write Slavery Is Not a Metaphor: U.S. Prison Labor and Racial Subordination Through the Lens of the ILO’s Abolition of Forced Labor Convention, and E. Tendayi Achiume, UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and professor of Law at UCLA, writes Race and Empire: Legal Theory Within, Through, and Across National Borders and Critical Race Theory Meets Third World Approaches to International Law. There's lots more and it is all worth a read. 

New Article: Pandemics and International Law: The Need for International Action

Claudio Grossman, Pandemics and International Law: The Need for International Action, Human Rights Brief, Vol. 24, Iss. 3, Art. 2 (2021). Excerpt below.

"This Article argues that, due to the experience of COVID-19, it is important that the ILC of the United Nations considers the adoption of a normative instrument whose purpose would be the regulation of pandemics – before, during, and after they occur.  There is a compelling need to act, stressing prevention and common reaction by the international community when these scourges occur, and the existing normative framework has shown its incapacity to organize the type of global mobilization that pandemics require.  This Article will first provide a brief background into relevant topics, and then it will summarize key issues noted during the November 18 conference. Lastly, it will conclude by providing a recommendation for further action."