Signed but Not Ratified: Limits to U.S. Participation in International Environmental Agreements

Why does the United States sign environmental treaties but not ratify them? U.S. presidents have negotiated and signed several environmental treaties that ultimately could not obtain Senate ratification. This article considers two alternative explanations. First, presidents may face divided government and upcoming elections; elections can increase uncertainty regarding ratification, because they upset majorities and change congressional preferences on issues. Such factors may have caused “involuntary” defection from international environmental cooperation. Second, compensation and compromise on enabling legislation could satisfy enough senators and their constituents to allow the legislation's passage. Failure to secure ratification may be a result of the president's overestimating the potential for negotiating a policy package capable of creating sufficient support to obtain Senate ratification. I compare domestic constraints on U.S. participation in three international environmental negotiations—climate change, biodiversity, and chemicals—to assess the alternative explanations. The cases exemplify how domestic institutions affect international environmental cooperation.     

Empty promises: Indonesia's non-ratification of the Rome Statute of the International Criminal Court

Southeast Asia is one of the most underrepresented regions in the International Criminal Court (ICC). I address the question of non-ratification of the Rome Statute with a case study on Indonesia. While the Yudhoyono Administration has repeatedly promised to join the ICC, ratification has not materialized. I argue that Indonesia's tradition of emphasizing the protection of state sovereignty and economic gains in its foreign policy decisions best explains why it remains outside the ICC's jurisdiction. I test this claim by exploring Indonesia's human rights record, potential legal restrictions for the ratification of the Rome Statute, and the influence of domestic political players and external pressures.     

Legislative Veto Players and the Effects of International Human Rights Agreements

Do national legislatures constitute a mechanism by which commitments to international human rights treaties can be made credible? Treaty ratification can activate domestic mechanisms that make repression more costly, and the legislative opposition can enhance these mechanisms. Legislative veto players raise the cost of formalistic repressive strategies by declining to consent to legislation. Executives can still choose to rely on more costly, extralegal strategies, but these could result in severe penalties for the leader and require the leader to expend resources to hide. Especially in treaty member‐states, legislatures can use other powers to also increase the cost of extralegal violations, which can further reduce repression. By using an empirical strategy that attempts to address the selection effects in treaty commitment decisions, I show that positive effects of human rights treaties increase when there are more legislative veto players.     

National Human Rights Institutions: Domestic implementation of international human rights law

Does adopting a National Human Rights Institution (NHRI) make states’ international commitments to not torture more constraining? Many researchers have explored international human rights treaties’ abilities to constrain leaders from violating human rights, some focusing exclusively on the United Nations Convention Against Torture (CAT). Thus far, findings are not promising unless certain domestic conditions apply such as sufficient democratic space to air grievances or independent judiciaries. This article continues to explore domestic conditions by focusing on another liberal institution—National Human Rights Institutions (NHRIs). Torture is usually a secretive practice, and NHRIs act as information providers to potential mobilizers and domestic legal systems assuring international legal commitments are not empty promises. Using statistical analysis on 153 countries over the years 1981–2007, I find that when a country has ratified the CAT, the presence of an NHRI substantively decreases the chances the state will be an egregious offender.     

Domestic legislatures and international human rights law: Legislating on religious symbols in Europe

This article examines the dynamics of domestic legislatures' application of international human rights law. Specifically, this article asks the following: What factors shape how domestic legislatures apply international human rights law while they enact national law and policy? Lawmakers have a variety of motives for invoking and deliberating international law. Given these motives, the article identifies two factors — civil society actors and legal experts and the flexibility of international law — that are likely to contribute to if and how national legislatures interpret and apply international human rights law while legislating. These factors are examined through case studies on religion in schools in the United Kingdom, Germany, and France. This article argues civil society actors and legal experts and the flexibility of international law inform lawmakers' estimation of political costs related to compliance and thus how they apply international human rights law to domestic legislation.     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

Participation of the elderly in sociocultural life: human rights and inclusive practices under residential care

Although there is a growing tendency in academic literature to explore the rights of the elderly, the sociocultural dimension of well‐being of the elderly under residential care has not as yet been extensively conceptualized. This is why from the perspective of international human rights law, this article deals with the issues of implementing sociocultural rights of the elderly under residential care. The author analyses legal grounds justifying the existence of state obligations to implement sociocultural rights of the elderly within the institutions. Possible limitations of these rights are scrutinized. Investigating the issue of state obligations to implement the rights of the elderly to participate in sociocultural life within the institutions, the author refers to legal experiences of Finland. Examining whether Finnish statutory law is sensitive to sociocultural rights of the elderly under residential care, the author analyses the legislation of Finland and reports the materials of Finland, submitted to the European Committee on Social Rights. Prior to this, the author attempts to establish whether such a right as the right of the elderly to participate in sociocultural life has emerged in international human rights law. Copyright © 2014 John Wiley & Sons, Ltd.     

Workers without rights as citizens at the margins

This article presents a normative account of citizenship which requires respect for labour rights, as much as it requires respect for other human rights. The exclusion of certain categories of workers, such as domestic workers, from these rights is wrong. This article presents domestic workers as marginal citizens who are unfairly deprived of certain labour rights in national legal orders. It also shows that international human rights law counteracts the marginal legal status of this group of workers. By being attached to everyone simply by virtue of being human, irrespective of nationality, human rights can complement citizenship rights when both are viewed as normative standards. The example of domestic work as it has been approached in international human rights law in recent years shows that certain rights of workers are universal. Their enjoyment cannot depend on citizenship as legal status or on regular residency. The enjoyment of labour rights as human rights depends, and should only depend, on the status of someone as a human being who is also a worker.     

The Role of National Human Rights Institutions in the Implementation of the UN Guiding Principles

National human rights institutions (NHRIs) are key domestic mechanisms for promotion and protection of human rights. The institutions' broad mandate, competencies, and special status between state and nonstate actors on the one hand, and special status between the national and international levels on the other hand enable them to engage effectively in the field of business and human rights. Since 2009, NHRIs have been engaging with the international human rights system in order to increase understanding and raise awareness of their role in addressing business and human rights issues. As a result, they have contributed to the development of the UN “Protect, Respect and Remedy” Framework and obtained an evolving role within all pillars of the framework and in its implementation. This paper presents how these domestic institutions, bridging the national and international levels, fit into the UN legal regime for corporate responsibility for human rights and what contribution they make to the implementation of the UN Guiding Principles.     

A feminist challenge to the gendered politics of the public/private divide: on due diligence,domestic violence,and citizenship

This article examines the feminist appropriation of the legal principle of due diligence to politicize acts of violence at the hands of private actors within the private sphere. This move expanded traditional notions of state responsibility for violence against women under international human rights law. Using frame analysis, we focus on the institutionalization of this feminist understanding of due diligence through its discursive incorporation in international human rights policy documents and its mobilization in cases of domestic violence litigated within the UN and the Inter-American and European human rights systems. Through this discursive framing work and its institutionalization, feminists have challenged the gendered politics of the public/private divide to change the terms on which differently positioned women can engage with the state and global governance institutions. We argue that this change can potentially reconfigure women's state-bounded and transnational citizenship. The implications of due diligence as a political and sociological concept require more careful consideration by citizenship and human rights scholars.     

Governance Delegation Agreements: Shared Sovereignty as a Substitute for Limited Statehood

Governance delegation agreements—international treaties allowing external actors legal authority within host states for fixed terms—succeed in simple and, under certain conditions, complex state‐building tasks. These deals are well institutionalized and have input legitimacy because ratification requires sufficient domestic support from a ruling coalition. In order to obtain that input legitimacy, however, host states constrain external actors commensurate with their level of statehood: Stronger states delegate less legal authority. This article argues that these constraints, which produce joint rather than complete authority, require external actors to work within state structures rather than substituting for them, and thus make coordination of complex tasks more difficult. A quantitative overview of data on consent‐based peacekeeping missions complements a qualitative analysis focused on comparative case studies in Melanesia and Central America to test the theory. The results support the theory and suggest that these deals hold promise particularly for accomplishing complex tasks in especially weak states.     

Habermas,market‐friendly human rights,and the revisibility of economic globalization

This article examines the impacts, on citizenship rights, democratic practice and public policy, of the constitution‐like regimes for the protection of investor rights embedded within contemporary international investment treaties. It argues that a central objective of these investment treaties is to remove specific governmental functions from the stock of policy instruments available to national governments and to democratic polities. Drawing upon Habermas' discourse‐theoretic approach to law and democracy, the article argues that national states have the room to deviate, if not withdraw from the current configuration of economic rights advanced and enforced through international investment treaties. A robust proceduralist approach to rights and democracy would subject these agreements to critical democratic practice and open space to revise and roll back some of the rules and institutions associated with economic globalization.     

Architectures of intergenerational justice: Human dignity,international law,and duties to future generations

This article draws attention to the constitutive requirements of intergenerational justice and exposes the limitations of regulative arguments based on international human rights law. Intergenerational justice demands constraining the regulative freedom of the international community, and it is tempting to assume that adequate constraints are already contained within existing treaties including international human rights treaties. In fact, intergenerational justice demands bespoke constitutional norms at the international level, and it demands entrenching constitutional norms. International human rights law per se implies neither of these constitutive propositions and both are problematic in light of the present structure of international law. Nevertheless, a combination of arguments concerning intergenerational justice and the systemic implications of human dignity yield a more constitutive account of human rights and therefore an internal critique of the overall architecture of international law.     

Law as a System of Rights: A Critical Perspective

The “rhetorical incorporation of human rights terminology” into domestic law is the central concern of this article. Over the last 20 years or so, countries have faced international pressure to conform to human rights standards in order to enjoy legitimacy. However, there is a huge gap between what is legalized as “human rights” in domestic laws and what is set forth as “human rights” in international human rights instruments. Based on this presupposition that a proper incorporation of human rights on the books is a prerequisite for putting them into practice, this study by adopting a Systems Thinking approach seeks to show that law as a soft system on the books is more than the name and number of rights. It is a complex whole whose function depends on not only the name and number of rights but also different features of rights and the relationships between them. To this end, law is conceived as a system of rights that has five major features including the “frame of reference,” “scope of rights,” “orientation of rights,” “enforceability of rights,” and “realizability of rights.” The way of codification of human rights with respect to each of these features makes a big difference in implementing human rights in practice. To develop a heuristic devise for evaluating the situation of human rights in current legal systems, the conceptual space of law as a system of rights is depicted in a matrix called a “Rights Fabric Matrix.”     

‘Domestic transnationalism’: legal advocacy for Mexican migrant workers' rights in Canada

Every year thousands of Mexicans travel to Canada to work in Canadian fields and greenhouses under the Mexico-Canada Seasonal Agricultural Worker Program. While the programme is often praised, it has also been the subject of persistent criticism about its failure to meet certain human rights standards. In this article, we examine the legal strategies civil society advocates of migrant workers have adopted to promote migrant workers' rights in Canada. Specifically, we examine legal struggles undertaken by the United Food and Commercial Workers union to challenge Ontario government legislation that does not permit collective bargaining by farmworkers in the province. We argue that this case demonstrates that despite the fact that many of the workers involved are transnationalized, appeals to international bodies or to international human rights standards have been of limited utility in promoting their rights. Despite frequent arguments about the increased relevance of international human rights and citizenship norms and transnational human rights advocacy, in this case the national and sub-national scales remain predominant. The result, we argue, is a form of ‘domestic transnationalism’, in which domestic political actors engage in advocacy within domestic legal institutions to promote the rights of a transnational mobile labour force.     

Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.     

Yahoo? Reining in the Wild West with the Alien Tort Claims Act

In the wake of globalisation, we have witnessed the rise of the transnational corporation—powerful, new players in an international human rights system ill-equipped to handle the challenge. Despite the best efforts of the United Nations, international treaties and human rights lawyers the world over, there is simply no mandatory international code of corporate conduct targeting human rights practices. Enter the Alien Tort Claims Act (ATCA), a once-obscure U.S. statute that provides a private cause of action for violations of international human rights law committed by governmental and non-governmental actors. This paper will examine recent ATCA jurisprudence, the landmark Unocal settlement, and the ATCA’s role in reining in Yahoo! Inc. for supplying evidence used to convict Chinese dissidents Wang Xiaoning and Shi Tao.

International Soft Law, Human Rights and Non-state Actors: Towards the Accountability of Transnational Corporations?

During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful.

Development law: Squaring the circle, advancing human rights in Africa

Development law is an ethos-driven law reform paradigm that examines conditions from within the country and provides a frame of reference in which to evaluate the legal regime in the political, economic, social and cultural context. Moreover, development law provides a fresh approach to assessing existing national laws effectiveness generally; it assesses whether modifications are required to promote economic, political, and social progress, including protecting the rights of minority ethnic groups and disenfranchised peoples. By protecting rights, law can be an instrument of social development and will not be alien to large segments of the population. Development law as a paradigm is the result of decision making within the country after careful examination by trained professionals whose sole interest is political, economical, social, cultural and national development. The enactment of laws and integration of customary norms that are embraced by the ruling authority, political elites, and other stake holders will best advance human rights. I thank Professor Mary Wright for reviewing and providing helpful comments on a previous draft of this article.     

The international rule of law

ABSTRACT

The rule of law is a moral ideal that protects distinctive legal values such as generality, equality before the law, the independence of courts, and due process rights. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions, and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.