Human Rights Quarterly

Published by Johns Hopkins University Press
Online ISSN: 1085-794X
Publications
Article
The legal approach to abortion is evolving from criminal prohibition towards accommodation as a life-preserving and health-preserving option, particularly in light of data on maternal mortality and morbidity. Modern momentum for liberalization comes from international adoption of the concept of reproductive health, and wider recognition that the resort to safe and dignified healthcare is a major human right. Respect for women's reproductive self-determination legitimizes abortion as a choice when family planning services have failed, been inaccessible, or been denied by rape. Recognition of women's rights of equal citizenship with men requires that their choices for self-determination be legally respected, not criminalized.
 
Article
As a result of heated controversy and the need to reach a compromise solution the Commission on Human Rights Draft Convention on the Rights of the Child (1989 version) raises the abortion issue only in a preamble. This preamble asserts that ". . .the child by reason of his physical and mental immaturity needs special safeguards and care including appropriate legal protection before as well as after birth." Still unclear however is the role of a preamble to an international treaty and the exact meaning of the preamble paragraph. The United Nations has a history of using preamble to express general policy concerns that are not necessarily pursued or even addressed in the operative part of the document itself and have little juridical value. Moreover a close reading of the preamble shows no evidence of a mandate to recognize the right to life of the unborn child or of a redefinition of the term "child" to encompass the fetus. What the preamble does do is lend authority to the already widespread practice of individual stakes taking whatever measures they consider appropriate to protect the fetus. The preambles recognition that the fetus is deserving of appropriate protection cannot be interpreted as an endorsement of the right to life per se and experience has shown that increasing the level of protection awarded to the fetus does not have to imply any restrictions on the availability of legal abortion.
 
Article
The practice of screening potential users of reproductive services is of profound social and political significance. Access screening lacks a defensible rationale, is inconsistent with the principles of equality and self-determination, and violates individual and group human rights. Communities that strive to function in accord with those principles should not permit access to screening, even screening that purports to be a benign exercise of professional discretion. Because reproductive choice is controversial, regulation by law my be required in most jurisdictions to provide effective protection for reproductive rights. In Canada, for example, equal access can, and should be, guaranteed by federal regulations imposing strict conditions on the licenses of fertility clinics.
 
Article
Human Rights Quarterly 18.3 (1996) 612-640 For more than a decade, the international community has made efforts to promote approaches to the prevention and control of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV/AIDS) pandemic that are both effective and highly respectful of individual rights, especially the rights of persons infected or considered to be at high risk of infection. This effort has proceeded globally and regionally as well as at the national and local levels. Although the outcome in relation to respect for rights has been far better than many public health and human rights advocates had feared, few analysts or officials believe that governments have been doing enough to modify their practices in such areas as entry restrictions at national borders, mandatory testing of various groups, implementation of a right to medical treatment, and protection of persons with AIDS against discrimination. The reasons for the apparent failures to protect rights are myriad and have roots at the local, national, regional, and global levels. This article seeks to extend our understanding of such factors, and suggests cultural, economic, biomedical, social, and political reasons for the failures. This article also considers why most of the leading international public health and human rights organizations have been less than fully effective in their efforts to promote rights together with effective HIV/AIDS prevention and control. The article then seeks to combine the analyses of these factors with a close look at the policies advanced in a wide array of documents and statements that intergovernmental organizations (IGOs) and international nongovernmental organizations (NGOs) have issued since 1983. This effort is shaped in part by a series of interviews conducted by the author between 1992 and 1994, as well as by many of the seminal interpretative works of scholars in diverse disciplines. The policy statements of the international community arise from multiple factors that shape and limit the effort to combine public health solutions and respect for rights. As such, the policy statements, whether intended to be legally binding or suggestive, also constitute intervening variables in relation to the independent pressures and constraints on, and the ultimate outcomes of, the effort to develop rights-protective public health solutions. However, these policy statements deserve to be studied carefully for their possible contributions to both successes and failures in the cause for which they were enlisted, and for the evidence that they provide concerning constraints on human rights advocacy at both the national and international levels. No single scholar, and probably no research unit, can hope to study completely and definitively the impact of human rights prescriptions and proscriptions on the entire global encounter with HIV/AIDS; no organization has yet to complete such a survey. Too many kinds of human rights issues relate to this pandemic, too many countries and other political subdivisions experience impacts in diverse ways, and too few places have reliable, systematic, or meaningful mechanisms to compile complaints concerning the violation of rights. Various studies, written in different years and emphasizing varying geographical regions and issues, have come to different conclusions about the overall levels of respect for human rights in relation to the pandemic. The studies discussed in this article also reflect the varying assessments of the effects of global and regional initiatives on national and subnational governmental policies as well as respect for such rights by private organizations and citizens. For example, academicians David L. Kirp and Ronald Bayer, commenting primarily on government policies in developed countries, emphasize contrasting but generally positive responses to human rights and related concerns, but question the durability of such favorable patterns. Lisa Bloom and Ana María Linares agree that there were negative patterns of government policies in various parts of the developing world in the mid 1980s, but they disagree on subsequent trends, which presumably were affected by global and regional efforts to encourage respect for human rights. Linares concludes that in 1991, Latin American states were "heading towards more pragmatic and humanistic approaches to AIDS legislation." Bloom, employing a much less rigorous methodology than Linares and her Pan-American Health Organization [PAHO] colleagues, denigrates as inadequate even the most humanistic and inclusive contemporary national policies. The...
 
Article
Human Rights Quarterly 17.2 (1995) 366-381 In recent months, a number of international conferences focusing on human rights and population have added a certain urgency to the search for definitions of reproductive rights that would be acceptable cross-culturally. In the last three decades, discussions of reproductive rights at each of the international conferences on population have been marked by subtle but important changes in emphasis. These have come in response to evolving ideas about the rationale for reproductive rights and its implications for population policy, as well as to changes in power relations on the global scene. One key issue on the international agenda is the extent to which definitions of human rights can be transposed to non-Western cultures in ways that avoid both "homogenizing universalism" and "paralyzing relativism." The purpose of this article is to explore the commonalities that can be found between notions of reproductive rights as they developed in the Western tradition and the principles that define gender rights in Islam. This is a daunting task which requires some knowledge about several disciplinary domains and involves a comparative analysis of two philosophical and legal traditions that have often been at odds historically. In addition, the issue of women's rights in Islam is one that has brought about a polarization of viewpoints -- and recent regional and international developments have done little to defuse the tension between them. Clearly, this is hazardous intellectual territory where only the overly optimistic would willingly tread. I am convinced, however, that careful research will uncover more common ground than appears at first. It is this belief that motivates my pursuit. One has to recognize at the outset that the discourse about women and their rights in the Middle East has often been dominated by the more uncompromising positions on both sides. Moreover, the exchange of these extreme views has usually excluded women, who are the group most vulnerable to abuses of reproductive rights. By contrast, woman-centered perspectives coming from both sides can provide new elements for a dialogue. More specifically, Western feminists, who have questioned traditional liberal notions of autonomy and individualism in light of the reality of women's reproductive experience, have opened the door for a redefinition of rights that is more conducive to dialogue than earlier formulations. At the same time, there are elements in Islam which can be interpreted to justify a more egalitarian approach to reproductive rights, one that is more responsive to women's needs and is espoused by a large number of Muslims. This article aims to bring to light these two tendencies and show that their shared concern for the welfare of women and men can contribute to bridging the apparent gap between them. The process of translating legal and ethical concepts of rights between two different cultures is an extremely arduous task. It is useful here to pause for a moment and draw on the anthropological literature which provides many illustrations of the dilemmas that arise from encounters between different normative systems. Unable to find equivalents to his or her concepts of rights and wrongs and confronted with behaviors that seem morally unacceptable, the anthropologist can adopt one of two equally undesirable stances: the first is to conclude that individuals in cultures that do not possess the same notions of rights will need to be "educated" and "enlightened" in the ways of liberal thinking -- an undertaking with all the dangers of cultural imperialism; the second is to adopt the detached relativist view, which holds that because any ethical principle is only applicable in a given context, the anthropologist must acquiesce even to practices that appear to violate human dignity. This dilemma has received a great deal of attention from anthropologists who have at various times had to confront value systems that were antithetical to their beliefs. Recently, there have been attempts to break out of the impasse of universalism versus relativism and develop a new approach to human rights. Several researchers have examined the bases for the universality of human rights. Some have questioned the strict presumption of universality upon which human rights are based, in part because it is founded on the...
 
Article
Human Rights Quarterly 18.2 (1996) 398-438 The value of employing a rhetoric of rights in the campaign for public health lies in the disaggregation of anonymous suffering. Looking at society through a prism of rights forces one to see individual faces among the ubiquitous pools of misery that flood much of the developing world; among that block of human beings defined as "the homeless mentally ill" who languish on the grates and benches of the so-called developed world; and among the grazing herds of despair who congregate in the corridors of state-run nursing homes around the globe. The idiom of rights individualizes the misery of maimed children from the pediatric wards of Sarajevo to the orphanages of Zaire, just as it turns the statistics of the global AIDS pandemic into individuals, each of whom has his or her own narrative with multiple plots and themes. Moreover, unlike reactions grounded in shallow sentimentality, which generally result in no more than fleeting agitation, the rhetoric of rights claims our sustained attention even in the face of societal aversion. Indeed, the language of rights appears to be the demiurge that creates the reality of entitlements. Nevertheless, the significance of using a rights discourse in discussions about health status, as well as what the meaning of a right to health would imply, remains unclear and confused. Notwithstanding references to a universal human right to enjoy "the highest attainable standard of health" in international human rights treaties, as well as in the Constitution of the World Health Organization (WHO), the debate about a right to health often centers around whether the rhetoric of rights advances the cause of public health at all. Conversely, the inclusion of health in the panoply of universal human rights has been questioned as potentially doing a disservice to the cause of rights. At a time when UN agencies and committees, together with nongovernmental organizations (NGOs), are increasingly linking human rights norms with health promotion, this article takes up the question of what the relationships between health status and human rights are, and what they might be, from both a theoretical and a strategic perspective. Part II explores the meanings of power issues in human rights and public health. In setting forth empowerment as an underlying theme of human rights, this article proposes that the difficulty in elaborating the connections between health and human rights might be ameliorated by redefining the questions asked concerning the meaning of empowerment for both areas. It argues that by examining the perceptions of power that human rights notions implicitly embody and by making explicit the power issues involved in health status, one is forced to focus beyond simply overcoming or containing biophysiological disease. This examination requires both human rights and public health activists to discern the societal relations, combinations, and alignments of power that both produce and distribute disease and define the social state of illness, as well as on the side-effects, oppositions, and resistances to those power structures that are implicated in a "right to health." Part III argues that by framing a right to health in terms of control over one's own health -- thereby tracking the WHO's definition of health promotion -- both the fields of human rights and public health are able to transcend paralyzing debates which have left the development of a right to health stunted. In the spirit of cross-fertilization between the two fields, this article further suggests that the Declaration of Alma-Ata, which stressed a comprehensive, "Primary Health Care" approach and was adopted as public health policy by over 150 countries, but implemented in only a handful, could constitute a starting point for the authoritative interpretation of an empowering right to health. Part IV revisits long-standing questions about the intersections between health and human rights from the perspective of a right to health based on control over health and personal empowerment. Thus, issues surrounding the health consequences of human rights violations and the human rights considerations of health policies, as well as the concept of a fundamental concern with human dignity shared by the two disciplines, are reframed in terms of protecting and promoting a right to control...
 
Article
The international human right to health as one of the economic, social and cultural rights is firmly embedded in existing human rights instruments. There is, however, little understanding of the contents and significance of this specific right. What exactly are individuals entitled to on the basis of the right to health and what are the resulting obligations on the part of the States? To what extent is this right susceptible to judicial review? This paper aims to contribute to an improved understanding of the right to health. It discusses the definition of health as a human right and describes its international codification. Furthermore, it provides an evaluation of reporting practices and it addresses the justiciability issue. On the basis of these findings it outlines the content of the right to health and describes the resulting obligations on the part of States.
 
Article
As the major players in globalization, firms often operate in states where human rights may not be respected. Without direct intent, firms may be complicit in human rights violations. In 2008, John Ruggie, the UN Special Representative on business and human rights, developed a framework for policymakers to protect human rights and for executives to respect human rights. On 16 June 2011, the UN Human Rights Council endorsed Ruggie’s ‘Guiding Principles’ for implementing this framework. This article describes how firms, states, and to a lesser extent NGOs, have responded to this delineation of the human rights responsibilities of business. We make four key points: the Guiding Principles are an important advance in global governance; the process of developing the Guiding Principles was a model of transparent, inclusive 21st century governance, yet the public is generally unaware of the issue or the new policy; that the Guiding Principles are a creative and broad rethinking of how to evaluate the human rights performance of corporations; and that the Guiding Principles are unlikely to have much influence unless policymakers educate their home firms regarding their human rights responsibilities and press these executives to act.
 
Article
The proliferation of international human rights treaties, committees, and courts, and the development of human rights norms and standards over the last sixty years represent immense achievement. International human rights laws and principles are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time human rights ideas continue to have difficulty in manifesting their relevance in the daily lives of those who are geographically and culturally distant from international institutions. Thus, the international human rights regime has arguably reached a juncture that demands a reoriented view responding to the disparities between human rights laws and principles on the one hand, and realities on the ground for many of the subjects of human rights on the other. While scholars have noted this discontinuity, particularly for those in the global South, few have attempted to realistically respond to this. Two new books—William Twining's Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na'im, Yash Ghai, Upendra Baxi, (Southern Voices) and Helen Stacy's Human Rights for the 21st Century (21st Century)—address aspects of this paradox, and lay the foundations for exciting changes in the international human rights regime in the twenty-first century. Southern Voices is unique in that it provides important perspectives from four renowned non-Western legal scholars—Deng (Sudan), An-Na'im (Northern Sudan), Ghai (Kenya), and Baxi (India). The authors offer timely insight into societies and cultures of the global South in terms of their interests, concerns, and perspectives on human rights. The authors are realistic about the obstacles involved in reconciling the discourse of human rights with many of the practices relating to human rights issues around the globe. Yet, they provide concrete advice on how to advance towards realizing the vision of international human rights. Their insights highlight the cosmopolitan reality of the current human rights regime. They also underscore the need for greater incorporation of Southern views and traditions into the discourses on human rights within any legitimate international order. 21st Century addresses the main critiques of international human rights, specifically cultural pluralism, sovereignty and civil society. The book additionally proposes the development of a hybrid regional human rights court system, interstitially positioned between international human rights institutions and national courts. Such regional courts, Stacy argues, respond to the issue of the universality of human rights, as their unique position allows them to integrate international treaty principles with the realities of cultural pluralism and diverse local practices. The hybrid regional courts would simultaneously promote and improve human rights norms across cultures and political and social orders, while honoring social, cultural, and religious values and mediating these different values through principles and process. This essay provides a critical account of some important remaining gaps in the literature on international human rights theory and practice. It argues that relatively little scholarship, including both reviewed books in their discussions on human rights praxis, grounds its analysis in the discourse of the subjects of international human rights law, particularly those people actually involved in human rights violations in the developing world. This is notwithstanding the fact that a main function of the international human rights movement is to give voice and power to those oppressed. Further, the meaning of human rights must be grounded in local culture at grassroots levels. Top-down textual and theoretical analyses relating to human rights practice cannot adequately capture the textured realities and complexity of factors involved. Consequently, bottom-up perspectives from local actors must be incorporated to additionally inform and possibly reframe macro-level scholarly conversations on human rights as well as policies aimed at improving respect for human rights at grassroots levels. Given that the "global south" is extremely diverse, questions such as, "What are victims' and legal actors' conceptions and expectations of human rights? What are their agendas and experiences in processing their cases in various justice systems?" and "What factors affect their attitudes and behavior in this context?" need to be asked in many locations. Further, actors' perceptions on these issues must be interwoven with information on local social contexts, structures, and interactions. Contextualized, interpretive accounts from those embroiled in human rights cases are critical to obtain a...
 
Descriptive Statistics 
Number of Asylum Claims and Refugee Admissions, 1990-2010 
Regression Models, Asylum Grant Rate (1990-2010) 
Number Claims for Relief, 1990-2010 
Article
How have recent changes to US asylum law altered who gets asylum? We investigate whether the changes wrought by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Real ID Act changed the decision making of immigration judges in asylum cases. We find, contrary to much of the commentary surrounding both IIRIRA and Real ID, that immigration judges became more likely to grant applicants asylum. Furthermore, we find that those applicants who are most at-risk of persecution in the countries they are fleeing are also the applicants most likely to be granted relief—a fact that became increasingly true with the implementation of IIRIRA and Real ID.
 
Article
This report covers the UN meeting in which Afghanistan appeared before the Committee on Economic, Social and Cultural Rights on 14 May 2010.
 
Article
This essay reviews two books by Robert Badinter, former President of France's Constitutional Council and former French Minister of Justice. Taken together, they describe his successful advocacy against the death penalty in France, both in the courtroom and in the political arena. The essay focuses on his current goal of advancing the cause of abolition in the United States, as expressed in Contre la peine de mort. After making the case that arguments against the death penalty are for the most part unoriginal and unconvincing to non-abolitionists, the essay maintains that successful opposition to capital punishment must be based primarily on the strategies and tactics of the advocate. It then goes on to explore and analyze the reasons for Badinter's success in France and concludes by stressing Badinter's ability to exercise a highly nuanced judgment, grounded in his historical and literary sensibilities, that enables him to be flexible and adaptable as his advocacy takes different forms or as situations develop in unpredictable ways.
 
Article
Organized crime rings exploit 700,000 to 4 million new victims of human trafficking each year, often luring them across borders where they are more vulnerable to abuse. Trafficking in Southeastern Europe is a relatively new phenomenon, fueled by the dissolution of the former Soviet Union, as well as the presence of international peacekeepers who have sometimes exacerbated the problem. Both domestic and international anti-trafficking laws, by virtue of their nature as government created legislation, focus largely on a law enforcement agenda, failing to adequately addresess immigration options that could serve to protect the victim and in so doing provide better evidence with which to prosecute the traffickers for their crimes.
 
Article
During the past fifteen years, one of the most vexing issues facing fledgling transitional democracies around the world—from South Africa to Eastern Europe, from Cambodia to Bosnia—has been what to do about the still-toxic security apparatuses left over from the previous regime. In this now-classic and profoundly influential study, the New Yorker's Lawrence Weschler probes these dilemmas across two gripping narratives (set in Brazil and Uruguay, among the first places to face such concerns), true-life thrillers in which torture victims, faced with the paralysis of the new regime, themselves band together to settle accounts with their former tormentors. "Disturbing and often enthralling."—New York Times Book Review "Extraordinarily moving. . . . Weschler writes brilliantly."—Newsday "Implausible, intricate and dazzling."—Times Literary Supplement "As Weschler's interviewees told their tales, I paced agitatedly, choked back tears. . . . Weschler narrates these two episodes with skill and tact. . . . An inspiring book."—George Scialabba, Los Angeles Weekly
 
Article
Transnational human rights activism occupies today a significant place in the practice and scholarship of current global affairs. This article reviews the past successes and limits of this activism and suggests Human Rights Education (HRE) as a strategic tool currently underutilized by activists and rarely taken seriously by academics. We argue that the current practice of transnational human rights activism frequently lacks solid and reciprocal ties to local activists and emphasizes “shaming” and exposure of human rights abuses over their prevention. The professionalization and campaign driven character of rights activism often increases the distance between transnational activists and local causes and beneficiaries and disconnects the general public from human rights struggles. While claims of impartial activism based on legalistic strategies have the benefit of lifting human rights groups above the fray of politics, the promotion of human rights norms remains a deeply political and contentious struggle. We argue that a greater emphasis on HRE strengthens transnational ties and local support for international human rights standards and leads to societal mobilization beyond the narrow nongovernmental sector.
 
Article
This article analyzes recent efforts by India's Dalits (Untouchables) to transform centuries-old caste-based discrimination into an international human rights issue. Comparing early failures and later successes in international activism, the article demonstrates that the Dalits have achieved limited but important advances among transnational NGOs, international organizations, and foreign governments since the late 1990s. What explains these successes - and what lessons does the Dalit experience hold for other groups seeking to transform domestic grievances into internationally recognized human rights issues? The article makes two primary arguments. First, organizational changes among Dalit activists played a major role in these successes, most importantly the formation of a unified Dalit network within India and the subsequent creation of a transnational solidarity network. Second, rhetorical changes played a key role, as Dalits moved from their long-standing focus on caste-based discrimination to a broader framing within the more internationally acceptable terminology of discrimination based on work and descent. The article concludes by discussing broader implications for international human rights activism by other aggrieved groups.
 
Article
Human Rights Quarterly 23.3 (2001) 733-768 This article is a study of the effectiveness of a particular body of international law, namely the norms prohibiting discrimination against women, in the context of the international legal and institutional responses to sexual apartheid in Afghanistan. While different methodological and conceptual approaches to international law agree on the need for empirical research, international relations theory can aptly pursue studies of the impact of international norms on the actual behavior of states and of other international actors. Investigating the effectiveness of international law in crisis situations yields important data on the actual strength of international norms. It also offers indispensable guidance for deciding actions in situations where conformity between norms and behavior is lacking, and for "predicting future developments and designing institutions capable of affecting behavior in desirable ways." As a piece of legal research, however, this analysis concentrates on the legal questions, and simply raises other questions -- for example, on institutional culture -- that are deemed to be of an essentially non-juridical nature, albeit related to the main issues here discussed. More specifically, this article deals with the provision of United Nations (UN) humanitarian assistance in Afghanistan since the Taliban movement came to power in September 1996 and introduced harsh policies of gender discrimination that have progressively instituted a system of sexual apartheid. In the first few weeks of its rule, the Taliban enacted measures limiting women's freedom of movement and right to work, and girls' access to schools. The fact that gender issues became the focal point in the Afghani conflict did not come as a complete surprise, given that, while "[i]t would be an exaggeration to say that the war in Afghanistan was fought over the status of women," this "would not be wholly untrue." In fact, the contrast was striking between the situation of women in the rural areas, and women in Kabul, who constituted the majority of the students at the University. However, the values promoted by the Taliban are not simply "the values of the village, but the values of the village as interpreted by refugee camp dwellers or madrassa students most of whom have never known ordinary village life." Afghanistan is not an isolated case. The ill-conceived policy of forcing refugees to live and receive aid only in refugee camps, normally established and run by the Office of the UN High Commissioner for Refugees (UNHCR), has exacerbated national, ethnic, and religious problems in other situations. Since the Taliban began its rule, humanitarian nongovernmental organizations (NGOs) and the UN have had to grapple with the gender policies of the new regime and decide whether to continue to operate in Afghanistan, and if so on what terms. At present, the UN is maintaining a large-scale operation in Afghanistan, having allocated some $100 million of humanitarian assistance in 1998 or about half of the total humanitarian aid to Afghanistan, the rest being provided by NGOs. While primary responsibility for violations of women's rights remains with Afghanistan as a state both legally and politically, the conduct of the UN in response to these policies has not been in accordance with international law. A disquieting finding from the perspective of international law -- and from the perspective of "those values that international law seeks to promote and protect" --is that the UN not only failed to prevent and, later, to become an effective opponent of the gender policies of the Taliban regime, but that it actually incorporated discrimination against women in its humanitarian assistance and in the recruitment of local staff. Arguments supporting these choices, which have been put forward in both UN documents and in scholarly work are examined in this article. Two further-reaching and interdependent arguments are made relating to the incorporation of discrimination against women in the provision of UN assistance. First, in spite of international standards prohibiting gender discrimination, international responses to systematic abuses of women's rights continue to be tepid and largely ineffectual. The inability of international norms to influence the behavior of the UN itself testifies to the difficulty of dismantling a gender discriminatory hegemonic apparatus that is so resilient as to still influence the conduct...
 
Article
Human rights trials now abound in Africa. These trials are being conducted almost exclusively by international tribunals, most notably the International Criminal Court, without - so this article maintains - proper regard for the power and duty of national courts to protect their citizens from human rights abuses. Not every atrocity calls for an international tribunal.
 
Article
On January 10, 2000, something remarkable occurred in the chambers of the United Nations Security Council: the Council agreed to consider whether Auto-Immune Deficiency Syndrome ("AIDS") and the burgeoning AIDS crisis in sub-Saharan Africa is a matter of international peace and security deserving of Council oversight. This unprecedented consideration of a health issue as a possible security threat recognized the considerable death toll attributed to the AIDS pandemic and the high infection rate in sub-Saharan Africa. However, does this crisis - serious as it is - warrant viewing international peace and security so expansively? And if disease can constitute a threat against peace, how soon before other causes of deprivation and horror give rise to Security Council jurisdiction? In this article I argue that the approval of this initiative should concern, and not comfort, the global community. The proposal represents yet a further expansion of the Security Council's role in international and domestic affairs; if the Council accepts this invitation to dabble in the area of public health, it risks straining the interpretation of its mandate past the shattering point. Further, if the Council's powers are so expanded, the Council will have nearly unlimited power to intervene in matters of domestic concern that are intended by the Charter to be beyond the Council's reach. One may be tempted to accept the risk of future abuse of power by recognizing the AIDS epidemic as a truly unique exigency. But what would be gained by the exercise of Security Council jurisdiction? In this article I further demonstrate the practical and legal limitations on Council action to curb the spread of AIDS in sub-Saharan Africa. Simply put, the proposal is dangerous because it is unworkable and meaningful action unlikely, as demonstrated in my "Top Ten Reasons Why the United Nations Security Council Should Not Involve Itself in the AIDS Epidemic in Africa."
 
Article
Human Rights Quarterly 21.2 (1999) 342-363 The adoption in June 1998 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (African Human Rights Court) by the Assembly of Heads of State and Government of the Organization of African Unity (OAU) is potentially an important step in the protection of human rights in the African continental system. The African Human Rights Court would complement the African Commission on Human and Peoples' Rights (African Commission), the body that has exercised continental oversight over human rights since 1987. The Protocol suggests that the African Human Rights Court will make the promotion and the protection of human rights within the regional system more effective. However the mere addition of a court, although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the African human rights system since its inception. The modern African state, which in many respects is colonial to its core, has been such an egregious human rights violator that skepticism about its ability to create an effective regional human rights system is appropriate. Although the African Charter makes a significant contribution to the human rights corpus, it creates an ineffectual enforcement system. Its most notable contributions are the codification of the three "generations" of rights, including the innovative concept of peoples' rights, and the imposition of duties on individuals. But many commentators have focused on the weaknesses in the African system. These include the "clawback" clauses in the African Charter, the potential abuse of the language of duties, and the absence of an effective protection mandate for the African Commission. Recent changes in the African states, particularly those changes responding to demands for more open political societies, may augur well for the protection of civil and political rights. Emergent democracies such as Namibia, Malawi, Benin, South Africa, Tanzania, and Mali are more inclined than their predecessors to respect human rights at home and to agree to a more viable regional system. In this context, the proposed African Human Rights Court would operate in a less hostile or cynical environment than the environment that determined and sharply limited the powers and effectiveness of the African Commission. In addition, the 1994 Rwandese genocide and the recent atrocities in Nigeria, Liberia, Somalia, Ethiopia, Sudan, Sierra Leone, Burundi, the Republic of the Congo, and the Democratic Republic of the Congo have further illuminated the need for stronger domestic and regional guarantees for human rights. In fact, at no time in recent African history have the conditions for the creation of an effective regional human rights system been more favorable. This article critically evaluates the proposed African Human Rights Court and assesses its potential impact on the African human rights system. It probes the powers of the Court and asks whether a clear and mutually reinforcing division of labor between it and the African Commission could be developed to more effectively promote and protect human rights on the continent. For example, should the mandate of the African Commission be limited primarily to promotional activities, and the African Human Rights Court exclusively given the protective function? What relationship should the Court have to the African Commission? In sum, this article explores the effect that the African Human Rights Court is likely to have in three principal areas. First, it examines the role of the African Human Rights Court in the development of the law of the African Charter and other relevant human rights instruments. Second, it addresses ways in which the Court can fill the lacunae left by the African Commission and alleviate some of its weaknesses. Finally, it discusses ways in which the Court can penetrate the legal and political cultures of African states to inspire, encourage, and ensure the internalization of human rights. The African human rights system is anchored in the African Charter, an instrument that is largely promotional with an ambiguous protective function and no credible enforcement mechanism. This is hardly surprising because virtually no African state, with the exceptions of the Gambia, Senegal, and Botswana could even boast...
 
Article
The African Peer Review Mechanism (APRM), one of the spin-offs of the African development framework, NEPAD, offers a unique approach to the monitoring of agreed norms of political, economic, and corporate governance in Africa. This article analyzes the APRM structure and process with a focus on how the APRM could complement other efforts to realize the African Union objective of promotion and protection of human rights. The country review reports on Ghana, Kenya, and Rwanda are analyzed from a human rights perspective.
 
Article
Human Rights Quarterly 24.3 (2002) 662-720 Jack Donnelly Obinna Okere Upendra Baxi It is increasingly being recognized in the relevant literature that, important as they obviously are, international institutions cannot in themselves suffice as the primary sites of the struggle(s) for human rights. Concomitantly, it has become as apparent that these imperative struggles must be won (or lost) largely at the local level. This realization has in turn exposed the critical necessity for the deployment at the national level of various kinds of resources for the promotion and protection of human rights. One of the resources that could be so deployed is a national institution for the promotion and protection of human rights. While recognizing the inherent difficulties with definitions, the United Nations has defined such a national institution as a body that has been established by a Government under the constitution, or by law or decree, the functions of which are specifically defined in terms of the promotion and protection of human rights. Similarly, Mario Gomez has defined such bodies as state-sponsored and state-funded entities set up under an Act of Parliament or under the Constitution, with the broad objective of protecting and promoting human rights. These more recent definitions specifically exclude from their purview institutions that possess a more general mandate (such as the regular courts, the legislature and the social welfare institutions of a state). Yet, as functionally appealing as it now seems, this is a differentiation that was not always applied by the United Nations. As defined by the United Nations, national human rights institutions are by no means a novel feature either of the human rights landscape or of the institutional terrain of most countries in the world. From ombudspersons to national human rights commissions, the institutional terrain of virtually every country features at least one kind or the other of a national institution for the promotion and protection of human rights. As well, the vastly increased worldwide attention that is now being paid to the development of such national institutions belies the relatively long (if hitherto unremarkable) history of their existence in various parts of the world. Indeed, the question of the necessity for the establishment of such institutions was discussed by the United Nations Economic and Social Council (ECOSOC) as far back as 1946. This matter was again discussed by ECOSOC in 1960. As importantly, the first set of guidelines for the structure and functioning of national institutions was endorsed by the United Nations in the late 1970s. Long as their history might be, it is correct nevertheless to perceive the 1990s and the period that has followed as the age of national human rights institutions. This age has witnessed the accordance by the United Nations of priority to this aspect of the struggle for human rights. This age has also witnessed the exponential and exuberant proliferation of national institutions the world over. Receiving impetus from the 1991 Paris International Workshop on National Institutions for the Promotion and Protection of Human Rights, and the conclusions of that conference (now known as the Paris Principles), the work of the United Nations in encouraging the establishment by each state of its own national institution(s) has gained momentum. The 1993 Vienna Declaration and Programme of Action's ringing endorsement of this aspect of the United Nations human rights work has further cemented its pride of place within that body's agenda. Particularly popular among states that have recently established their own national institutions has been the subcategory of national institutions that are referred to as national human rights commissions (NHCs). This subcategory is said to differ significantly from another subcategory referred to...
 
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This article seeks to examine the concept of 'the right to development,' or 'development rights,' in relation to the Third World. Is the right to development an inalienable right? If so, what priority should countries of the Third World give to development? Should they place it above other rights? Can this be legally justified? How can Third World countries balance economic growth with basic human needs-and human rights? This article will also consider the consequences for the new millenium of the near-universal embrace of the market economy and the effects of the globalization of the economy on the right to development. What are the challenges that the right to development creates for contemporary international law?.
 
Panel estimations of bilateral and multilateral aid. 
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Donors frequently claim that a country’s record on human rights plays a role in the decision whether it receives aid and if so, how much. This study of total bilateral and multilateral aid flows finds that human rights play at best a rather limited role in the allocation of aid. Aspects of human rights are often statistically insignificant and even when they are significant, they are not very important as a determinant of aid allocation. Furthermore, the situation has not much improved after the end of the Cold War. Only for multilateral aid is there some indication that respect for human rights has played a greater role.
 
Article
Efforts to combat trafficking are hindered by poor understandings of the problem. Using Latin America as a case study, this article identifies the definitional, sociological, and legal issues that hinder an accurate assessment of the problem. The article focuses not upon the empirical problems of assessment, but upon those issues within the compass of policy makers and advocates. The article then describes the basic features of trafficking in Latin America and identifies efforts to address the problem, highlighting the role of the United States, the Trafficking Victims Protection Act, (TVPA) and the donor/NGO community. Finally, the article suggests appropriate methods for limiting the problem and assisting its victims.
 
Article
The article explores the historical roots of the Latin American region's strong commitment to the idea of universal human rights, focusing on four key intellectual moments: the ethical response to the Spanish conquest; the rights ideology of the continent's liberal republican revolutions; the articulation of social and economic rights in the Mexican Constitution of 1917; and the Latin American contributions to the genesis of the Universal Declaration of Human Rights. Constructing a narrative from these examples, the article argues for the recognition of a distinct Latin American tradition within the global discourse of human rights.
 
Schematic Overview of the Global Rights-Based Development Sector 
Presence and Co-Occurence between Issues on Organizational Websites in
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The rights-based approach (RBA) emerged as a new development paradigm in the late 1990s. Within ten years, it had swept through the websites, policy papers and official rhetoric of multi-lateral development agencies, bi-lateral donors, and non-governmental organizations (NGOs) throughout the global development assistance sector. Today, specialized consultants and advisors are elaborating and mainstreaming the paradigm through reports, workshops, and project evaluations, ensuring that rights-based thinking will continue to proliferate for years to come. Many view this trend with excitement, highlighting the normative and practical value of injecting human rights principles into standard development thinking and practice. These commentators hope rights-based approaches will empower marginalized groups, focus attention on inequality, and boost state and donor accountability. Skeptics, however, fear the emergence of yet another development fad. What, then, is really happening? Is the rights-based approach having observable impacts? This Article proposes five hypotheses about the likely impact of rights-based approaches on the work, structure, and number of NGOs involved in the development process. If the rights-based paradigm is having real effects, we should be able to observe its traces in the work and activities of development-related NGOs that accept overseas resources and aid.
 
Article
Since the late 1980s, the Lord’s Resistance Army (LRA), a spiritualist rebel group with no clear political agenda, has abducted tens of thousands of children and adults to serve as porters and soldiers. Experience of forced conscription into the LRA is traumatic and varies in scope and intensity. Children and youth - some as young as 7 and 8 years old - have been forced to mutilate and kill civilians, including members of their own families and communities. In 1994, a group of parents of abducted children to establish the Gulu Support the Children Organization (GUSCO), a reception center in Gulu that provides medical care, counseling, and a number of other services. More than 20,000 children and youth have since passed through GUSCO and other reception centers throughout northern Uganda.In December 2005, the Berkeley-Tulane Initiative on Vulnerable Populations launched The Database Project to better document abduction and help improve the capacity of 8 reception centers in the northern districts of Gulu, Kitgum, Pader, Apac, and Lira to collect and analyze information about former LRA abductees. At the time, these centers were still providing housing and care to hundreds of children and youth. This report presents the findings of the project, which analyzes the overall incidence of abduction based on those data and provides recommendations aimed at improving the process of reintegrating former LRA abductees into their communities.
 
Article
Much recent analysis of the political economy of development in East Asia focuses on questions of market liberalization and the adequacy of the international institutions involved in the economic crisis of the 1990s. Focusing on political institutions, this article urges an emphasis on liberal constitutionalism as a long-term strategy. Authoritarian regimes with markets and currencies that were protected fared reasonably well. Democracies with liberal institutions were resilient. The combination of authoritarian developmentalism and market liberalization fared the worse. But authoritarian developmentalism is not sustainable. Constitutionalism, if properly conceived, may provide the institutional reliability and accountability upon which sustained development depends.
 
Article
There is no denying the close linkage between ecosystem services and human well-being. Human well-being is dependent on the sustainable management of ecosystem services. With economic globalization and free trade, there is an increasing demand for these services. Yet, poverty, inefficient management of common resources, and inadequate legal and governance frameworks have a negative impact on human well-being. This article examines the impact of globalization as well as the legal mechanisms for the management of ecosystem services arguing for the need for a concerted and synergistic legal approach to manage ecosystem services in a sustainable manner that includes human rights principles alongside market-based instruments.
 
Article
The article examines the extent to which latecomers to the International Labour Organisation (ILO) that comprise more than one half of the organization could be said to have contributed to the establishment of the International Labour Code, about two thirds of which had already been established by the time that they began to join the ILO as politically sovereign independent states. The article focuses on the recent work of the ILO Working Party on Policy Regarding the Revision of Standards (1994-2002). It evaluates both the significance of outcomes of the Working Party’s achievements and the role of the latecomers in that enterprise. It shows that the latecomers have appropriated the ILO dynamic and utilized the ILO’s Working Party and Committee structures both to project matters of foremost concern to themselves onto the agenda of the ILO and to update the International Labour Code by evaluating, categorizing, and suspending some of the Conventions and Recommendations that they had deemed to be irrelevant. It concludes that after the conclusion of the work of the Working Party on Policy Regarding the Revision of Standards, latecomers to the ILO have become equal co-authors and co-owners of the International Labour Code together with all the other member states parties of the ILO.
 
Article
This article recommends a change in China’s policy toward Tibet to better conform to national commitments and international obligations. Since the People’s Liberation Army marched into Tibet in the 1950s China has generally imposed its will on the Tibetan people. The 1951 '17-Point Agreement on Measures for the Peaceful Liberation of Tibet' reflected the view that China was liberating Tibetan territory from imperialist forces. From the Tibetan perspective such 'liberation' was imposed and promises of local self-rule were not kept. The emerging communist and totalitarian state that followed the 1949 Chinese revolution proved incapable of allowing genuine Tibetan self-rule. A harsh attitude of domination ensued. The present instrument of Chinese rule is China’s national minority policy provided in Article 4 of the Chinese Constitution and China’s Law on Regional National Autonomy (LRNA). Though this policy promises local self-rule, the habits of intervention both formally in the political system and in the mechanisms of Communist Party oversight leave Tibetans with very little of the promised legislative and administrative autonomy. Assessing this policy against the backdrop of China’s long historical relationship with Tibet and the requirements of international law, this article concludes that China’s national minority policy fails to meet its obligations to the Tibetan people. Taking account of standards articulated in the new UN Declaration on the Rights of Indigenous Peoples, this article recommends a change of course to establish a more genuine autonomy under Article 31 of the Chinese Constitution relating to the establishment of special administrative regions.
 
Article
This article takes issue with the argument that human rights are not absolute and should be balanced in relation to competing communal aims. The balancing of qualified human rights is a key practice of the European Court of Human Rights and a great deal depends on a clear analysis of the ramifications of balancing for our understanding of human rights aims. The author does not seek to propose an alternative to balancing, but aims to show that it is not necessarily coherent with human rights principles or the kinds of functions international human rights institutions are thought to perform.
 
Article
Starting with Falun Gong, this article first identifies the meanings of the term “cult” in the context of religious belief and Chinese law, which are characterized by a strong instrumentalist nature. The article then explores the current system of law governing “evil cults,” and examines how the system actually simultaneously protects and restricts the freedom of religious belief. The author observes that the extent and scope of citizens’ religious beliefs have been restricted by law, and further asserts that legislation and regulations against “evil cult” activities should not be used to control and limit citizens’ normal religious life.
 
Article
National Human Rights Institutions can play a key role in promoting and protecting human rights. They are able to do so by the unique position they occupy between government, civil society, and nongovernmental organizations (NGOs). However, this unique position which holds out opportunities for national human rights institutions also gives rise to problems for such institutions. National human rights institutions have to define and defend their role or space in relation to where they fit in with government and civil society. This can create difficulties for national human rights institutions with respect to their independence and accountability; two key concepts which are crucial for a national human rights institution’s legitimacy, credibility, and ultimately its effectiveness. This article explores these challenges and opportunities using examples from different countries. It further draws out a more subtle understanding of independence and accountability by conceptually unearthing the different layers within the two concepts. In conclusion, a number of recommendations are made as to how national human rights institutions can maintain their independence, while engaging with and being accountable to both government and civil society. The article is supported in its conclusions by a series of semi-structured interviews with key institutional players in the national human rights institution world.
 
Article
The people of Burma/Myanmar have suffered for two generations under military dictatorships. Their economy, legal and social orders, cultural diversity and political freedoms have all steadily declined during that time. The country's human rights record is considered by many to be one of the worst world-wide. In the West, responses have ranged from diplomatic condemnation, to the imposition of economic sanctions, and to the withdrawal of aid and international co-operation. Countries in the region, on the other hand, have been typically less robust, more accepting of assertions of sovereign rights and concerned to promote engagement and dialogue rather than isolation and punishment. Neither approach appears to have had any discernable impact on the attitude of Myanmar's military Government or on the plight of its people. Aung San Suu Kyi remains under house arrest, her pro-democracy party banned and its members persecuted; the rule of law is non existent, and the once flourishing economy is in terminal decline. New strategies to break the impasse are now being contemplated in both the West (more conditional engagement) and the East (more strident conditionality). This article analyses a controversial Australian human rights initiative that ran in Myanmar from 2000 to 2003, which might be considered a forerunner to these new 'third way' approaches. The article describes the objectives, nature, composition and implementation of the program; it assesses its advantages and disadvantages, its risks and potential, and explores some of the criticisms and praise the program engendered. It also provides a detailed backdrop against which one might draw some tentative lessons in terms of the protection and promotion of human rights in both the specific context of Myanmar, and also, by implication, in the global community's approach to intransigent, pariah states.
 
Article
The success in implementing human rights treaties is often determined by the national laws of a country. There is an implementation gap in dualist regimes where courts do not implement human rights treaty provisions because they have not been domesticated by a legislative (or other necessary) incorporating act. Interpretive incorporation is a judicial trend that seeks to mitigate this strict separationist view. This article examines the use of interpretive incorporation in Malaysia to incorporate CEDAW’s prohibition against pregnancy discrimination through constitutional interpretation. It calibrates the outcomes of interpretive incorporation based on the status judges effectively give to unincorporated human rights treaties. The article reflects on some of the continuing local constraints on interpretive incorporation.
 
Article
This article examines the feasibility of bringing an application to the International Court of Justice, under the terms of Article IX of the Genocide Convention or Article 36 of the Statute of the Court. It concludes that such an application would be legally feasible and political desirable and that the failure of any state thus far to institute proceedings before the Court is an indefensible abdication of international responsibility.
 
Article
Syria appeared before the Committee Against Torture (the Committee) on 3 and 4 May 2010, for the first time since ratifying the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) on 19 August 2004. This paper is a brief report on that UN CAT session.
 
Article
Thesis (LL. M.)--Columbia University, 1994. Includes bibliographical references.
 
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This article attempts to explore how changes in the UN's mission may force it to rethink its responsibilities in terms of human rights. Until recently, the UN had never thought of itself as actually capable of violating human rights. But a number of evolutions have made this a possibility. Starting with peace operations and culminating with the international administration of entire territories, the UN is increasingly taking on sovereign-like functions. This evolution may be seen as a larger metaphor for what the UN is becoming, from a traditional inter-governmental organization to one increasingly entrusted with tasks of global governance. With these new powers, it would seem, come new responsibilities.
 
Article
Against the background of the largely theoretical debate concerning the use and potential abuse of the cultural relativism argument by State elites, this article seeks to explore how, if at all, the cultural relativism argument is actually being deployed in practice by state delegates appearing before the UN Committee on the Rights of the Child. Based on the evidence from this analysis, it is contended that "cultural difference" remains a common and formidable argument but that the dynamics of this argument, as played out before the Committee, simply reflect the inherent limitations and fundamental weaknesses of an international legal system founded on a "society of States" in which the voices of the local and particular are effectively silenced.
 
Article
Human Rights Quarterly 23.2 (2001) 308-326 The European Convention on Human Rights (ECHR) has always operated successfully as a regional mechanism of human rights protection. Now, following the ECHR's incorporation into the legal systems of the vast majority of Council of Europe States, including, most recently, the United Kingdom, its potential to influence law and policy can be realized at the domestic as well as the regional level. The Convention's scope for enforcing and protecting the rights of children is not immediately evident given that it contains few specific references to the rights of the child. However, the European Commission of Human Rights and the European Court of Human Rights have made a considerable contribution to European law and practice in the areas of private and public family law, the protection of children from abuse and neglect and, most recently, juvenile justice and detention. They have done this, it is submitted, through a variety of inventive methods of interpretation, including the practice of drawing on the provisions of the UN Convention on the Rights of the Child (CRC). While it is not apparent that the Court (or the Commission, up to its abolition in 1998) has followed a consistent strategy to refer to the Convention on the Rights of the Child in all children's cases, it has been making such references with increasing frequency and with significant effect. This article analyzes the Court's approach to interpreting the ECHR in the light of the CRC and identifies the features of each treaty, which encourage this approach. It examines two specific areas of the Court's practice in this regard -- physical punishment and juvenile justice -- and concludes with some suggestions as to how this approach might be developed further in a way that offers greater scope for the protection and promotion of children's rights in Europe. The UN Convention on the Rights of the Child 1990 is only eleven years old; its impact is thus difficult to assess within such a short time-frame. Any assessment is made more difficult by the fact that the Convention lacks a powerful system of enforcement to allow for the adjudication of complaints of individual children, resulting in a lack of case law applying Convention standards to individual cases. Instead, implementation of the Convention's principles and provisions is monitored by a panel of international experts whose success depends largely on the willingness of national governments to take its criticisms and recommendations seriously. The approach of the UN Committee on the Rights of the Child to the promotion and protection of children's rights is thus advisory and non-adversarial in nature and its success relies on diplomacy rather than legal sanction. Despite its potential to advance protection of children's rights, this is a mechanism which clearly has long-term, rather than short-term, goals. However, in addition to its legally binding nature, the CRC also enjoys a certain moral force derived from its unanimous approval by the General Assembly in 1990, as well as the status it has since acquired as the most highly ratified instrument in international law. There are thus other ways in which the CRC's implementation can be furthered. For example, it can be used as a blueprint for government action and as a tool to educate and create an awareness of children's rights at the domestic level. Although such efforts may have a positive impact on the profile of children's rights issues which will ultimately lead to their greater protection, taken alone, their potential to remedy serious violations of children's rights or to provide an effective remedy in individual cases is limited. One of the CRC's outstanding features is the comprehensive nature of its provisions. It is arguably by putting these to effective and imaginative use that the Convention can play an influential and dynamic role in the protection of the rights of children and young people. For example, the CRC sets out the rights to be secured to children and young people in many aspects of their lives and in a variety of circumstances. Its...
 
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This article examines how the right of return is negotiated and implemented in post-conflict societies. It focuses on cases of voluntary yet ‘difficult’ return and identifies the conditions under which victims of ethnic cleansing choose to return to their homes despite opposition from new occupants and local authorities. The article provides a theoretical framework for the study of return looking at security provisions, incentives, contact and ideology. Drawing on the experiences of Bosnian (Drvar) and Cypriot (Maronite) returnees, it emphasizes the role of social capital and demonstrates how community effort resolves coordination and commitment problems and facilitates voluntary peaceful return.
 
Article
Truth commissions have become key mechanisms in transitional justice schemes in post conflict societies in order to assure transitions to peace, the rule of law, and respect for human rights. However, few studies examine what must happen to ensure that the transition process initiated by a truth commission successfully continues after the commission concludes its truth-gathering work and submits its final report. This article argues that while attention often focuses on prosecutions and institutional reforms, reparations also play a critical role. The authors share their observations of how government agencies, nongovernmental organizations (NGOs), civil society sectors and victim-survivor's associations struggle over reparations in post truth commission Peru, offering a preliminary analysis of key theoretical suppositions about transitional justice: they explore whether the act of telling the truth to an official body is something that helps or hinders a victim-survivor in his or her own recovery process, and whether in giving testimonies victim-survivors place particular demands upon the state. The authors conclude that while testimony giving may possibly have temporary cathartic effects, it must be followed by concrete actions. Truth tellers make an implicit contract with their interlocutors to respond through acknowledgement and redress.
 
Article
The assertion of prescriptive and adjudicative universal jurisdictions by some countries in relation to a handful of offenses that are classified as international or universal crimes (e.g. genocide) has led to a great deal of controversy. Those who favor universal jurisdiction argue that certain acts (often crimes) affect all of us, not just the specific individual or group of victims or the country of which the victims are nationals. It is therefore legitimate, they argue, for any state to punish or suppress such acts regardless of any traditional jurisdictional connection between the alleged acts and the state asserting jurisdiction. The availability of universal jurisdiction is premised on the presumed effect of certain crimes on humanity as a whole. Those who commit these offenses are referred to as hostis humani generis -- enemies of human kind. Skeptics argue that the idea of universal jurisdiction is conceptually incoherent, inconsistent with the principle of political self-determination, and has great potential to be an instrument of political mischief. While they disagree on the conceptual coherence and utility of the notion of universal jurisdiction, both proponents and opponents view its function in purely instrumental terms, to provide the condition for punishing or suppressing certain offenses that affect all of us. This article argues that universal jurisdiction also serves another, less articulated purpose. It has a constitutive function as well. It is partly a process through which the identity of the international community is imagined and enacted. It is an expression of a sense of ourselves (a community of humankind) at given moments of time. This article argues that neglect of this constitutive dimension leads to an incomplete analysis of universal jurisdiction.
 
Article
Maternal mortality is the leading cause of premature death and disability among women of reproductive age in developing countries. Furthermore, the burden of maternal mortality is not evenly distributed. Ninety-nine percent of pregnancy-related deaths occur in developing countries-and of course, only women are at risk of this fate. Moreover, according to the World Bank, although men and women between the ages of fifteen and forty-four lose approximately the same number of years of healthy life due to disease, there is no single cause of death and disability for men that comes close to the magnitude of maternal death and disability. The discourse of human rights enables us to place an issue such as maternal mortality on the agenda of public concern and keep it there. Moreover, it provides another crucial reason to be concerned about maternal mortality-beyond even the tragic deaths themselves, women's instrumental role in raising children, and the loss of women's productivity. A rights framework emphasizes that women affected by maternal mortality possess an inherent dignity that makes their preventable deaths a disgraceful social injustice. This article has two objectives. First, it will give an overview from a public health standpoint of the scope and determinants of maternal morbidity and mortality, together with the issues involved in their detection, treatment, and measurement. Second, it will explain how the UN Guidelines for monitoring national programs can be used as human rights tools to monitor a state's compliance with respect to aspects of the right to health under various international treaties.
 
Top-cited authors
Harvey M. Weinstein
  • University of California, Berkeley
Jack Donnelly
  • University of Denver
Laurel Fletcher
  • University of California, Berkeley
Audrey Chapman
  • UConn School of Medicine
Payam Akhavan
  • University of Toronto