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Human Rights & Development Law Journal Volumes
Bridgette Carr, Eliminating Hobson's Choice by Incorporating a "Best Interests of the Child" Approach into Immigration Law and Procedure
Margaux Hall et al., Answering the Millennium Call for the Right to Maternal Health: Eliminating User Fees
Noah Novogrodsky, The Duty of Treatment: Human Rights and the HIV/AIDS Pandemic
Martin Skladany, Buying Our Way Out of Corruption: Performance-Based Incentive Bonuses for Developing Country Politicians & Bureaucrats
NOTE FROM THE FIELD
Maya Steinitz, Internationalized Pro Bono and a New Global Role for Lawyers in the 21st Century: Lessons from Nation Building in Southern Sudan
Martha Lovejoy, From Aiding Pirates to Aiding Human Rights Abusers: Translating the Eighteenth-Century Paradigm of the Law of Nations for the Alien Tort Statute
The Politics of Constructing the International Criminal Court, by Michael Struett
Reviewed by Yuan Ji
Corruption, Inequality, and the Rule of Law, by Eric M. Uslaner
Reviewed by Rebecca Krauss & Benjamin Taibleson
Eliminating Hobson's Choice by Incorporating a "Best Interests of the Child" Approach into Immigration Law and Procedure by Bridgette Carr
United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land or risk the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a federal circuit split regarding whether the persecution a child faces can be used to halt the deportation of a parent. The omission of a “best interests of the child” approach in immigration law and procedure for children who are accompanied by a legal guardian results in a failure to protect foreign national and United States citizen children and must be remedied. Models for eliminating these protection failures exist in United States child welfare law and procedure, international law, and immigration law of other nations such as Canada. Building from these models, the United States must implement and give substantial weight to the best interests of directly affected children in its immigration law and procedure.
Answering the Millennium Call for the Right to Maternal Health: Eliminating User Fees by Margaux Hall et al.
Complications during childbirth and pregnancy are a main source of death and disability among women of reproductive age. Approximately 536,000 women die from pregnancy-related complications each year. Developing countries suffer most profoundly, accounting for 99% of deaths. The world's nations, by endorsing U.N. Millennium Development Goals, recognized that most deaths are preventable; they have pledged to reduce maternal mortality by 75% by 2014. This Article assess the barriers presented by user fees -- formal charges for health services still charged by many countries -- to the attainment of MDGs. It shows that user fees hamper healthcare access, particularly in emergency-care settings, and fail in meeting their intended purposes of generating funds and improving equity, quality and decentralization of health care. The Article analyzes fees' adverse impact through a human rights lens that privileges each woman with an assessment of hear health, unlike the MDGs which assess aggregate improvements and benchmarks. Finally, the Article explores alternatives to user fees, including universal health insurance schemes, tax schemes, and debt forgiveness programs and policies. It offers a guiding framework for assessing health financing systems -- a framework that is centered on the needs of the poorest and most marginalized community members and that emphasizes accountability.
The Duty of Treatment: Human Rights and the HIV/AIDS Pandemic by Noah Novogrodsky
This Article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts.Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right to treatment in the global case law and authoritative decisions of treaty bodies. Second, it argues that the right to treatment has transformed rights discourse, strengthened the conceptual interdependence and indivisibility of all human rights and reframed the role of the judiciary. Third, it contends that the justiciable quality of the right to treatment holds the potential to clarify which rights claims are likely to result in concrete remedies and, by extension, to elevate the status of social and economic rights more generally.
Buying Our Way Out of Corruption: Performance-Based Incentive Bonuses for Developing Country Politicians & Bureaucrats by Martin Skladany
This Article argues for the establishment of performance-based financial incentive programs in developing countries that would pay politicians and high-level bureaucrats substantial bonuses (ten to twenty times or more of their official yearly salaries) to reduce corruption within their countries. These incentive programs would turn the weapon of greed back on itself by aligning the motivations of politicians and bureaucrats with the stated goals of government and the desires and will of citizens. Paying corrupt public officials to stop stealing may seem distasteful, but the problems that developing countries face and yet cannot overcome because of systemic corruption are staggering and have been largely resistant to other anticorruption strategies. By simply altering the source of funds to public servants, performance-based incentive programs for developing country politicians and high-level bureaucrats can, over the long run, create a culture of clean governance conducive to sustained economic growth and can make all aspects of development, such as improving infrastructure, education, and health care, more manageable.
Notes from the Field
Internationalized Pro Bono and a New Global Role for Lawyers in the 21st Century: Lessons from Nation Building in Southern Sudan by Maya Steinitz
From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM”), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan, and the Constitutions of two “transitional” states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance — assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal courts to prepare indictments of war criminals. This development within the legal community is connected to changes in the scope and ambition of the “corporate responsibility” initiatives of many of the multinational corporate clients of firms leading the internationalization of pro bono services.
The entry of law firms and multinational corporations into the ‘market’ of global affairs — long the exclusive domain of governments and inter-governmental organizations — offers many advantages to clients in developing and post-conflict countries, but also poses dangers which can and should be mitigated. One of the foremost benefits private law firms offer a unique ability to ensure — even to guarantee — local ownership of the process and its content, due to the strict requirements of the attorney-client relationship. These include attorneys’ obligations to follow the directives of their clients, to keep the confidences of the clients, and to act independently of any third party. Unlike other players in the field of international aid (such as foreign donor governments, inter-governmental organizations (IGOs), non-governmental organizations (NGOs), and private foundations), private lawyers providing pro bono services do not receive donations, do not have “mandates” other than those dictated by the client within the bounds of ethical regulations, and are not accountable to real or imagined “constituencies” other than the client. Yet the enforceability of the ethical code that gives rise to those advantages is questionable in a transnational representation. A lack of regulation raises questions about legitimacy and accountability, and may suggest the specter of legal imperialism.
A practical approach to mitigating those disadvantages can be gleaned from the novel work of an increasing number of scholars writing within the Global Administrative Law (GAL) paradigm. GAL scholars have analyzed the myriad ways in which disparate national administrative standards have been synchronized, though not necessarily harmonized, in various contexts (such as environmental concerns and accounting standards). A key concept in GAL scholarship is that of transnational networks — patterns of regular and purposive relations (and institutions) among like regulatory bodies working across borders and demarcating the “domestic” from the “international.” This Article will draw on this and other concepts and principles of GAL scholarship in proposing ways to bring accountability to transnational pro bono activities (indeed to transnational lawyering in general) that respect the domestically self-regulated legal profession and which cannot (and should not) be harmonized across jurisdictions. Rather, the article suggests that regulation of global pro bono service should graduate from “accidental distributed administration” to “deliberate transnational network administration.” Without some attention paid to the way law firms operate in this arena, there is a risk that the ethical obligations of attorneys will become little more than a cover for advancing Western corporate interests.
From Aiding Pirates to Aiding Human Rights Abusers: Translating the Eighteenth-Century Paradigm of the Law of Nations for the Alien Tort Statute by Martha Lovejoy
The Alien Tort Statute [ATS], alternately hailed as a “potent weapon for human rights” and a threat to developing nations and American corporate interests alike, was secured a second act by the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain. The Sosa decision confirmed the ATS as actionable, but restricted its application to offenses “comparable to the features of the eighteenth-century paradigms, offenses against ambassadors, violations of safe conduct and piracy, that Congress had in mind when it enacted the ATS.” Whether aiding and abetting liability is available under the ATS remains a live issue. This Note analyzes Sosa’s historical paradigm, examining whether aiding and abetting liability was available for the archetypical violation of the law of nations: piracy. It concludes that aiding and abetting liability for piracy was available and common in English and American law from the sixteenth century to the eighteenth century. The Note outlines the theories of aiding and abetting piracy and applies those theories to contemporary human rights problems.