Human Rights Law
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the "foreign" sources become lost in translation, and the new rights become constitutive elements of "American" identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs--as that which is "foreign" is domesticated through several routes.
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
115 Yale L.J. 1122 (2006) Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discusses the social and geopolitical pressures that helped British abolitionists realize their hopes of creating a free colony in Africa. Part II demonstrates the manner in which Robert Thorpe, Chief Judge of the Court of Vice Admiralty at Sierra Leone, enforced Britain's 1807 Act for the Abolition of the Slave Trade against British and foreign traders alike. Part III argues that Thorpe's court, in conjunction with aggressive interdictions by the British Navy and privateers, forced Europe's great slaving powers to the negotiating table and secured their abandonment of the slave trade through the creation of multilateral institutions equipped to adjudicate captured slave ships. This Part also discusses the Le Louis case, which demonstrated the impact of Thorpe's court on the legal regime governing free navigation. Part IV then analyzes the relevance of Thorpe's experiment in humanitarian intervention to current interdiction efforts undertaken by the Proliferation Security Initiative.
The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism
115 Yale L.J. 1157 (2006) More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The United Nations 2005 World Summit brought together representatives from more than 170 countries, including the United States. While largely reiterating previous international development and security goals, the Summit culminated with an agreement that the international community, acting through the United Nations, bears a responsibility to help protect populations from genocide and other atrocities when their own governments fail to do so. The agreement further announced a willingness to take "collective action" through the Security Council to protect populations if peaceful means prove inadequate. The motivating force behind the agreement is the United Nations' past inaction in the face of grave atrocities, including genocide. At the conclusion of the World Summit, Secretary General Kofi Annan told the world's leaders: "[Y]ou will be pledged to act if another Rwanda looms." However, by describing the responsibility to protect in terms of U.N. action, the World Summit failed to address a critical issue: What can and should be done by individual states if the United Nations fails to fulfill its pledge? The answer to this question will inform the scope of permissible unilateral action, with implications for future humanitarian interventions and military actions. This Comment argues that the Summit agreement strengthens the legal justification for limited forms of unilateral and regional action–including military action–if the United Nations fails to act to protect populations from genocide and other atrocities. The Summit agreement strengthens the justification for unilateral action in two main ways. First, the agreement affirms important limits on national sovereignty by recognizing a state's responsibility to protect its own citizens. Second, the agreement sets clear responsibilities for the international community when a country fails to protect its own citizens. In cases of U.N. inaction, would-be unilateral actors can point to an explicit failure to fulfill a duty. However, the agreement only supports unilateral action in a narrow set of circumstances. First, the agreement is limited to a small set of extreme human rights abuses. Second, the agreement implies a hierarchy of actors and of interventions: Good faith U.N. action is privileged over unilateralism and peaceful action is privileged over violent means. Finally, the agreement limits the scope of intervention to the goal of protection. For these reasons, the U.S. invasion of Iraq could not have been justified using the Summit agreement.
Punishing Masculinity in Gay Asylum Claims
114 Yale L.J. 913 (2005) Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared too stereotypically heterosexual. The decision is representative of a trend in immigration law to equate visibility with the potential for antihomosexual persecution. This Comment argues that visibility should be irrelevant in sexual-orientation-based asylum cases. As I discuss in Part I, cases such as Soto Vega punish homosexuals who "cover" their sexual identity and reward those who "reverse cover," or act more visibly "gay." This system of incentives is inconsistent with the purpose and structure of asylum law for at least two reasons. First, as I argue in Part II, covering one's sexual orientation is a natural response to homophobic persecution. Thus, the visibility requirement punishes asylum applicants for exhibiting a symptom of persecution and is therefore inconsistent with the fear-based standard of asylum. Second, the visibility requirement assumes that conspicuous homosexuals have fundamentally different identities than inconspicuous homosexuals, such that they constitute a different social group for asylum purposes. This belief is grounded in a performance-as-identity model--suggesting that identity is determined by behavior rather than by immutable characteristics. As I argue in Part III, however, asylum law protects homosexuals on the basis of their immutable sexual orientation and thus precludes the performance-as-identity model.
Piercing the Veil
112 Yale L.J. 1399 (2003) Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, culture--represent the New Sovereignty. September 11th crystallized this fact. The infamous Taliban regime in Afghanistan assumed power in 1996 and immediately began stripping women of fundamental human rights. But war, not law, defeated what was perhaps the world's most ruthless fundamentalist regime. This Article argues that religion qua religion is less the problem than is law's construction of this category. Premised on Enlightenment theory, law has a fundamentalist view of religion as law's "other." Confident that freedom in the public sphere is freedom itself, law posits and, indeed, preserves religion as an extralegal sphere that is static, irrational, and imposed. Individuals may exit religion but not reform it. Increasingly, fundamentalists are taking advantage of this legal tradition. Because law does not recognize religious communities as contested and subject to change, legal norms such as the "freedom of religion" and the "right to culture" defer to the claims of patriarchal elites. The result is that, in case after case in both national and international law, law is siding with fundamentalists over modernizers. But on the ground, human rights activists working in Muslim communities are piercing the veil of religious sovereignty. In the work of these activists, this Article hears the rumblings of the New Enlightenment: Today, individuals demand democracy, reason, and rights within religious and cultural communities, not just without them. Examining the campaigns of reformers in Muslim communities through the overlooked efforts of transnational human rights "networks" and archives of women's human rights education manuals--illuminated by interviews with leading activists from around the globe--this Article identifies an emergent, conceptually coherent framework for operationalizing modernity and freedom within a context of culture and community. This New Enlightenment upsets the foundation of the legal understanding of the "right to religion," which has deferred to leaders' views over those of members. While feminists have challenged the absolute sovereignty of the private sphere, particularly on the issue of violence, women's right to contest and create normative community--that is, to make cultural and religious meanings--has been far less theorized. This Article suggests that women's human rights law must go beyond freedom from violence to freedom to make the world.
Do Human Rights Treaties Make a Difference?
111 Yale L.J. 1870 (2002) Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in chan- ging changing states' behavior for the better? This Article addresses these questions through a large-scale quan- titative analysis of the relationship between human rights treaties and countries' human rights practices. The analysis relies on a database encompassing 166 nations over a nearly forty-year period in five areas of human rights law. The analysis finds that although the practices of countries that have ratified human rights treaties are generally better than those of countries that have not, noncompliance with treaty obligations appears common. More paradoxically, control- ling for other factors that affect practices, it appears that treaty ratification is not infrequently associated with worse practices than otherwise expected. These findings can be explained in part, the Article contends, by the dual nature of treaties as both instrumental and expressive instruments. Treaties not only create binding law, but also declare or express the position of countries that ratify them. Because human rights treaties tend to be weakly monitored and enforced, countries that ratify may enjoy the benefits of this expression-including, perhaps, reduced pressure for improvements in practices-without bearing significant costs. This does not mean that human rights treaties do not have any positive influence, but simply that these positive effects may sometimes be offset or even outweighed by trea- ties' less beneficial effects. The Article concludes by considering better ways to help ensure that human rights treaties improve the lives of those they are meant to help.
Corporations and Human Rights: A Theory of Legal Responsibility
111 Yale L.J. 443 (2001) The path of international law over the last century has been one of increasing both the breadth and the depth of its coverage. Its breadth has grown through the addition of new areas for regulation, whether the environment, telecommunications, health, or human rights; and its depth has expanded through erosion of much of the notion of the domaine reservé, the area seen as falling exclusively within the domestic jurisdiction of states. Proposing international norms of corporate responsibility for violations of human dignity continues the trajectory that the law has taken, but it also represents new challenges for the enterprise. It challenges the state's exclusive prerogative (what some might call sovereignty) to regulate business enterprises by making them a subject of international scrutiny; it makes them entities that have their own duties to respect human rights. With the theory now justified, elaborated, and applied in at least some preliminary ways, I would anticipate that it has sown the seeds of a number of core objections to the project of enterprise accountability. I thus conclude by treating four objections that demand a considered response. First, it might be argued that even if, as a matter of moral philosophy, human rights give rise to duties by more than just states, the inevitable result of my theory is essentially to make all private wrongs into human rights abuses. The theory effectively merges human rights law with private tort law. As a result, human rights are no longer special, human rights claims are no longer distinctive, and human rights law is inhibited from its primary goal, the protection of individuals against governments. One concrete concern might be that human rights bodies would be overwhelmed with complaints about corporate behavior and diverted from considering complaints against states. Several responses are in order. First, to the extent an individual can point to a specific internationally recognized human right that he or she claims has been violated, that person has made a bona fide human rights claim; it is still special in that sense. The victim of, for instance, privately initiated torture or private discrimination based on religion is not a mere plaintiff in a tort case; that person's human rights--stated in core human rights instruments--were violated. Second, the theory is one based on human rights, not human desires. International human rights law has developed limits as to what certain rights against the state actually mean. For example, the individual right of members of national minorities to have their own schools does not require the state to pay for a religious establishment, nor would it require corporations to do so. Because corporate duties derive from existing rights, not new ones, the danger of outrageous claims is diminished. Third, and most critically, the possibility that relevant international decisionmakers will derive human rights duties for corporations does not mean that those obligations will be coextensive with the obligations on states. The differences between corporations and states regarding both their internal structures and those to whom they owe duties, as well as the need to respect corporate interests and rights, will inevitably limit the list of duties. For example, with respect to the right to privacy, those applying the theory might well find a duty not to invade people's homes, but not a duty to avoid publishing embarrassing information about public figures. The focus by respected NGOs, corporations, and governments on business behavior directly affecting physical integrity suggests a recognition of the need to proceed cautiously in making claims of corporate duties. I suspect that, over time, decisionmakers are likely to find a set of duties on corporations larger than those on individuals under international criminal law but noticeably smaller than those on states under existing human rights law. A second, related, criticism is that this enterprise cannot be logically separated from an attempt to address duties by all other nonstate actors. In other words, if corporations can violate human rights, then why not sports clubs, unions, NGOs, universities, churches, and, ultimately, individuals? Of course, that individuals have some legal duties in the human rights area has been obvious since Nuremberg. The concern must then be that new categories of dutyholders will inevitably arise, or new duties will fall on individuals. Indeed, this criticism suggests that my project inadvertently advances the cause of some world leaders who seek to give the state new powers over individuals through, for instance, the idea of a code of human responsibilities to complement the various codes of human rights. Clearly, the theory does broach the private-public divide in a way that invites the possibility that the law will recognize new dutyholders in the future. But why the concern? If, for example, the Rwandan Catholic Church participated in the 1994 genocide in that country, as has been alleged by respected observers, why not regard it as having violated the human rights of the victims? If other entities have the ability to deprive individuals of recognized human rights, this theory might provide a framework for doing so, or the basis for a broader framework addressing more actors. If, at some point, decisionmakers end up recognizing more duties for the individual than those now encompassed in international criminal law, they need not have brought about an increase in state power relative to the individual. For any duties of individuals derive only from human rights; because the government does not and cannot itself have human rights, the individual has no new duties toward the government. If the concern is that new individual duties would empower the government to limit the human rights of some in order to guarantee the rights of others (and thus fulfill the former's duties to the latter), the prerogative--indeed the responsibility--of the state to protect individuals from each other is well enshrined in human rights law. Other skeptics could make claims not about the danger of the doctrine, but of its futility. First, it could be argued that tort law remains equipped to deal with corporate abuses of rights, and that reformulating corporate duties as human rights duties accomplishes nothing. But such a position assumes too much about tort law and too little about human rights law. While high-profile tort cases in the United States against corporations for human rights and environmental harms may be proceeding, the practice is hardly uniform. Most states provide no realistic possibility of such recovery. Transforming the controversy into a human rights issue is hardly a cure-all, as victims will always face such barriers to recovery as recalcitrant legislatures, inept courts, and powerful economic pressures. But reformulating the problem of business abuses as a human rights matter might well cause governments and the population to view them as a legitimate issue of public concern and not as some sort of private dispute. In addition, using human rights, rather than tort law, as the prism through which to examine certain business abuses offers some possibility of more uniform global treatment of the issue rather than reliance upon the divergences of domestic tort law. Second, skeptics might well seize on the cautious tone of Part VI and ask why, assuming that governments are unable or unwilling to regulate business activity now, the proposed scheme will somehow improve matters. In the end, does not resistance by the state doom the prospects for enterprise accountability? What possible incentives could states have to get such a process started? Will not corporations simply move to states that refuse to impose new obligations on them? It is, of course, unexceptionable that if states are so uninterested in regulating the activities of corporate actors, they will neither create domestic regimes nor cooperate to prescribe more hard or soft international law. The corporation can no more easily replace the government as having the first duty to protect human rights than can an international organization. But even if states remain reluctant for the short term to prescribe new domestic or international norms on this issue, the derivation of enterprise duties still serves a critical function, insofar as it sets standards for businesses that can be monitored by nongovernmental organizations, international organizations, or the corporations themselves. The changing of expectations regarding appropriate behavior by transnational actors must often begin with civil society before governments can be expected to respond. Recognizing duties on enterprises, rather than merely on governments, also has the advantage of putting pressures directly on them not to seek refuge in some state that may be lax about enforcement. Thus even if the host states do not enforce the new duties, the outside scrutiny will elicit compliance. Moreover, it is possible that courts, domestic and international, that remain somewhat insulated from such economic pressures could jump-start this process through the sorts of rulings the European Court of Justice has issued regarding nondiscrimination in the private sector. Indeed, the same broad claim about government reluctance could be (and has been) leveled at the entire enterprise of human rights law, which is premised on the notion that domestic law may not offer sufficient protections for human dignity. And yet states have still come together over the last fifty years to draft an impressive corpus of human rights instruments and empower various institutions to monitor compliance and even adjudicate violations. This revolution has clearly affected the way that governments act toward their citizens and even promoted wide-scale changes in governmental structures to promote democracy. As for the obvious reluctance of many governments to curb their abuses in practice even as they promulgate and promise to adhere to human rights norms, this cognitive dissonance represents one of the ways in which international law and institutions can improve state and nonstate behavior over time, as targets of norms find it increasingly difficult to walk away from their professed commitments. In the end, this exercise's strongest defense is its possibility of providing a framework and rationality to the dialogue of the deaf that seems to be transpiring among businesses, those affected by their operations, governments, and NGOs. One of law's great purposes is to provide a set of bookends that exclude certain claims by various sides from the table and thereby narrow the range of differences. If these four participants in the accountability dynamic can focus their debate on what are truly human rights violations, the possibilities for constructive solutions loom larger. As the South African Truth and Reconciliation Commission said when it rejected both the view that all apartheid-era businesses should be condemned and that they were blameless, the duties of corporations turn on "[i]ssues of realistic choice, differential power and responsibility." This is not to suggest that the law is the end of the story: Political and economic interests will surely drive the various actors as they make their claims and work to accommodate them, just as they do in other areas where international law is relevant. And both corporations and NGOs will have reasons for discussing enterprise activities that do not breach legal standards. Nonetheless, the law can, as it does in countless other areas of international affairs, offer a common language in this debate, as well as a set of standards that can be enforced. The duties resulting when these actors work through the above theory will clearly satisfy no group fully. But if prescribed and applied by legitimate and effective institutions, or enforced through corporate self-regulation, these norms represent the beginning of a more global and coherent response to new challenges to human dignity.
Animal Rights
110 Yale L.J. 527 (2000) The "animal rights" movement is gathering steam, and Steven Wise is one of the pistons. A lawyer whose practice is the protection of animals, he has now written a book in which he urges courts in the exercise of their common-law powers of legal rulemaking to confer legally enforceable rights on animals, beginning with chimpanzees and bonobos (the two most intelligent primate species). Although Wise is well-informed about his subject--the biological as well as legal aspects--this is not an intellectually exciting book. I do not say this in criticism. Remember who Wise is: a practicing lawyer who wants to persuade the legal profession that courts should do much more to protect animals. Judicial innovation proceeds incrementally; as Holmes put it, the courts, in their legislative capacity, "are confined from molar to molecular motions." Wise's practitioner's perspective is, as we shall see, both the strength and the weakness of the book. If Wise is to persuade his chosen audience, he must show how courts can proceed incrementally, building on existing cases and legal concepts, toward his goal of radically enhanced legal protection for animals. Recall the process by which, starting from the unpromising principle that "separate but equal" was constitutional, the Supreme Court outlawed official segregation. First, certain public facilities were held not to be equal; then segregation of law schools was invalidated as inherently unequal because of the importance of the contacts made in law school to a successful legal practice; then segregation of elementary schools was outlawed on the basis of social scientific evidence that this segregation, too, was inherently unequal; then the "separate but equal" principle itself, having been reduced to a husk, was quietly buried and the no-segregation principle of the education cases extended to all public facilities, including rest rooms and drinking fountains. That is the process that Wise envisages for the animal-rights movement, although the end point is less clear. We have, Wise points out, a robust conception of human rights, and we apply it even to people who by reason of retardation or other mental disability cannot enforce their own rights but need a guardian to do it for them. The evolution of human-rights law has involved not only expanding the number of rights but also expanding the number of rights-holders, notably by adding women and blacks. (Much of Wise's book is about human rights, and about the methodology by which judges enlarge human rights in response to changed understandings.) We also have a long history of providing legal protections for animals that recognize their sentience, their emotional capacity, and their capacity to suffer pain; these protections have been growing too. Wise wants to merge these legal streams by showing that the apes that are most like us genetically, namely the chimpanzees and the bonobos, are also very much like us in their mentation, which exceeds that of human infants and profoundly retarded people. He believes that they are enough like us to be in the direct path of rights expansion. So far as deserving to have rights is concerned, he finds no principled difference between the least mentally able people and the most mentally able animals, as the two groups overlap--or at least too little difference to justify interrupting, at the gateway to the animal kingdom, the expansive rights trend that he has discerned. The law's traditional dichotomy between humans and animals is a vestige of bad science and of a hierarchizing tendency that put men over animals just as it put free men over slaves. Wise does not say how many other animal species besides chimpanzees and bonobos he would like to see entitled, but he makes clear that he regards entitling those two species as a milestone, not as the end of the road.