Browse By:

Clear Filters x

Volume 19 - Issue 2


Fighting the Resource Curse: The Rights of Citizens Over Natural Resources

Wenar, Leif & Gilbert, Jeremie | July 10, 2021

Respect for the rights of peoples over natural resources is crucial for the flourishing of communities and states. This article confirms that international law ascribes robust resource rights both to indigenous peoples and to citizens of independent states. These resource rights include indigenous peoples’ right to free, prior, and informed consent and citizens’ rights that resource revenues are never used corruptly but are used first to secure their means of subsistence. Resource rights are human rights, respect for which requires substantial reforms in the practices of corporations and investors as well as in the laws of resource-importing and resource-exporting states.

Euphemism and Jus Cogens

Sinha, G. Alex | July 10, 2021

Jus cogens norms of international law encompass the most stringent prohibitions of the law of nations. They reflect a global—and typically moral—consensus about impermissible conduct so complete and forceful that no derogation is permissible under any circumstances. Yet states derogate nevertheless. Lacking any valid legal justification for violating jus cogens norms, derogating states instead seek to euphemize their unlawful conduct. Doing so appears at a glance to be a calculated choice that allows States to have their cake and eat it too—to acknowledge the peremptory norms that purportedly bind all sovereigns while acting freely in violation of those norms by describing away their own misconduct. Perhaps the most famous recent example of this phenomenon is the United States’ use of the term “enhanced interrogation” to describe its methods for torturing individuals detained in the early years of the War on Terror.

Through a case study of the CIA’s torture program, this essay explores the distinctive and underappreciated link between euphemism and jus cogens. It argues that the special legal-moral character of peremptory norms of international law creates an intrinsic connection between false denials of legal liability and misleading moral descriptions. Thus, far from reflecting an independent messaging decision, the State’s deployment of euphemism to soften perceptions of its conduct flows necessarily from any decision it takes to deny legal liability. Moreover, these euphemisms tend to reverse the moral valence of the conduct at issue, suggesting it is not inexcusable but rather both legal and essential. The consequences of such euphemisms—their influence on public opinion and on lower-level officials empowered to carry out violations—are therefore substantial, and arise independently of any specific incentive to produce such effects. Euphemism thus operates as a powerful and surprisingly sophisticated device to facilitate law-breaking, even as its use is entailed by the State’s legal denials. One primary effect of this dynamic is paradoxical: it tends to strengthen international recognition of relevant peremptory norms while simultaneously undermining the practical effect of those norms.

Constitutional Rights Without Effective and Enforceable Constitutional Remedies: The Case of Ethiopia

Tadesse, Mizanie A. | July 10, 2021

The Constitution of the Federal Democratic Republic of Ethiopia guarantees a broad range of human rights in its Bill of Rights chapter. However, constitutional remedies for infringement of constitutional rights are rarely applied notwithstanding that the Constitution has been in enforcement for close to twenty-five years. The author of this article contends that lack of a clear and comprehensive Bill of Rights litigation procedure and lack of redress for violations of constitutional rights are contributing factors to the unacceptably low enforcement of the Bill of Rights via constitutional litigation. To augment his position and show the legal gaps and challenges as well as put forward recommendations for constitutional and legal reform, the author has analyzed the Constitution and relevant laws. The author has also consulted the laws of other countries and relevant literature with a view to identifying normative standards and practices from which Ethiopia can learn.

Debunking the Deathbed Analysis: Exploring A New Approach to Article 3 Health Cases

Heim, Meredith | July 10, 2021

This essay will explore Article 3 of the European Convention on Human Rights (ECHR) as it has been applied to deportation cases of persons in poor health, with the ultimate goal of answering the following question: Whether the deportation of a person to a place where she or he will not receive adequate health care should constitute a violation of ECHR Article 3. Further, this article will suggest how the European Court of Human Rights (ECtHR) and the national courts below them can better review such cases in order to provide more meaningful protection to those inflicted. In doing so, this essay specifically finds that (i) the ECtHR incorrectly applied Article 3 to cases of poor health and deportation in the past, (ii) the ECtHR still needs to further clarify an appropriate standard for these cases, (iii) the national courts, particularly in the United Kingdom, are incorrectly following old precedent, (iv) the ECtHR needs to explore all claims presented to it in these cases, including claims of Article 2 and 8 violations, and (v) the ECtHR should shift more toward the American Convention on Human Rights approach to Article 3 health cases in better aligning with the European policies on the right to health. Ultimately, these conclusions should assist in establishing sound justification for a relaxation of the current standard used in Article 3 health cases in Europe today.

Note that this article was written as the Savran decision was being handed down, so an in-depth analysis on Savran is absent. Savran was decided in October 2019, after this article was started and shortly before the article was finalized. Savran applied Paposhvili to mental health situations, which is a significant development. In the section ‘Recommendations for Future Research,’ this article calls for an examination of the role that mental health plays in ECtHR decisions and how the court’s treatment of mental health has changed over the years. Savran should help inform, and be a part of, this future research.