Pub Date : 2014-12-02DOI: 10.1007/978-3-319-41430-0_2
Thomas Pogge
{"title":"Are We Violating the Human Rights of the World’s Poor? Responses to Four Critics; Appendix C: Comments by Richard Arneson","authors":"Thomas Pogge","doi":"10.1007/978-3-319-41430-0_2","DOIUrl":"https://doi.org/10.1007/978-3-319-41430-0_2","url":null,"abstract":"","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127809965","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Americans with Disabilities Act does not protect everyone. It notably excludes people with Gender Identity Disorder (GID), an impairment involving the misalignment between one’s anatomy and gender identity. Many would say this is as it should be — gender nonconforming people are not impaired and so they should not be covered by disability law. But this argument misapprehends the reason that GID was excluded from the ADA in the first place. GID was excluded from the ADA because, in 1989, a small handful of senators believed that gender nonconformity — like pedophilia, pyromania, and kleptomania — was morally harmful to the community. In the eleventh hour of a marathon floor debate, and in the absence of an organized transgender lobby, the ADA’s sponsors and disability rights advocates reluctantly agreed to sacrifice GID and nine other mental impairments in exchange for passage in the Senate. The fact that Congress went out of its way to exclude GID, along with nine mental impairments that involve some harm to oneself or others, sends a strong symbolic message: people with GID have no civil rights worthy of respect. The ADA is a moral code, and people with GID are its moral castaways. In 2008, when Congress decided to expand the ADA’s definition of “disability” to protect more people, things should have been different for people with GID. Sadly, they were not. Instead of removing the GID exclusion once and for all, Congress enshrined its moral opposition to people with GID by preserving the exclusion intact. The ADA’s message to people with GID, and to the transgender community more broadly, is now clearer than ever: nearly twenty years after the passage of the ADA, people with GID are still despicable and even dangerous, and therefore undeserving of legal protection. The ADA’s moral code remains. In order to achieve true equality, transgender advocacy must rebut the moral case against transgender people. The ADA should play a prominent role in this project because the ADA’s GID exclusion “is” the moral case against transgender people. The ADA should be righted once more through passage of a modest bill, the “ADA Inclusion Act,” which removes GID from the ADA’s list of excluded impairments.
{"title":"Disabilityqueer: Federal Disability Rights Protection for Transgender People","authors":"K. Barry","doi":"10.2139/SSRN.2084351","DOIUrl":"https://doi.org/10.2139/SSRN.2084351","url":null,"abstract":"The Americans with Disabilities Act does not protect everyone. It notably excludes people with Gender Identity Disorder (GID), an impairment involving the misalignment between one’s anatomy and gender identity. Many would say this is as it should be — gender nonconforming people are not impaired and so they should not be covered by disability law. But this argument misapprehends the reason that GID was excluded from the ADA in the first place. GID was excluded from the ADA because, in 1989, a small handful of senators believed that gender nonconformity — like pedophilia, pyromania, and kleptomania — was morally harmful to the community. In the eleventh hour of a marathon floor debate, and in the absence of an organized transgender lobby, the ADA’s sponsors and disability rights advocates reluctantly agreed to sacrifice GID and nine other mental impairments in exchange for passage in the Senate. The fact that Congress went out of its way to exclude GID, along with nine mental impairments that involve some harm to oneself or others, sends a strong symbolic message: people with GID have no civil rights worthy of respect. The ADA is a moral code, and people with GID are its moral castaways. In 2008, when Congress decided to expand the ADA’s definition of “disability” to protect more people, things should have been different for people with GID. Sadly, they were not. Instead of removing the GID exclusion once and for all, Congress enshrined its moral opposition to people with GID by preserving the exclusion intact. The ADA’s message to people with GID, and to the transgender community more broadly, is now clearer than ever: nearly twenty years after the passage of the ADA, people with GID are still despicable and even dangerous, and therefore undeserving of legal protection. The ADA’s moral code remains. In order to achieve true equality, transgender advocacy must rebut the moral case against transgender people. The ADA should play a prominent role in this project because the ADA’s GID exclusion “is” the moral case against transgender people. The ADA should be righted once more through passage of a modest bill, the “ADA Inclusion Act,” which removes GID from the ADA’s list of excluded impairments.","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133506092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that the general right to contract, that is to say the ability of one to obligate himself in exchange for another’s obligation in return, is a fundamental (or basic) though not all-encompassing right and one that is subject to additional legal protections especially when limitations are sought to be imposed discriminatorily or based on status rather than capacity or subject matter of the contract. While post-Lochner decisions have given states considerable leeway to regulate the scope of freedom of contract, restrictions based on status, especially the status of unauthorized immigrants, are invidious and go beyond the ambit of the type of state regulation previously permitted. This article concludes that a prohibition on the right to contract based solely on unauthorized immigration status in the United States likely violates the Civil Rights Act and the U.S. Constitution on preemption, due process and equal protection grounds, and, to the extent executed contracts are involved, on Contract Clause grounds as well. The article analyzes other circumstances in which states and the federal government have previously restricted the right to contract based on status, and finds in nearly every case that the restriction of the right to contract affected members of a suspect class based on immutable characteristics such as race, national origin, alienage, gender, or servitude. While the Supreme Court has previously concluded immigration status is not a suspect class, this article argues that states' illicit use immigration status as a proxy for race, national origin or alienage satisfies the Arlington Heights test for disparate impact and therefore qualifies for strict scrutiny. In a modern, mercantile society, the right to contract is ubiquitous and now should be found to be fundamental. Laws such as the Hammon-Beason Alabama Taxpayer and Citizen Protection Act which purport to discriminatorily restrict or prohibit the right to contract should be struck down on multiple statutory and constitutional grounds.
{"title":"Restricting the Freedom of Contract: A Fundamental Prohibition","authors":"David P. Weber","doi":"10.2139/SSRN.2129441","DOIUrl":"https://doi.org/10.2139/SSRN.2129441","url":null,"abstract":"This article argues that the general right to contract, that is to say the ability of one to obligate himself in exchange for another’s obligation in return, is a fundamental (or basic) though not all-encompassing right and one that is subject to additional legal protections especially when limitations are sought to be imposed discriminatorily or based on status rather than capacity or subject matter of the contract. While post-Lochner decisions have given states considerable leeway to regulate the scope of freedom of contract, restrictions based on status, especially the status of unauthorized immigrants, are invidious and go beyond the ambit of the type of state regulation previously permitted. This article concludes that a prohibition on the right to contract based solely on unauthorized immigration status in the United States likely violates the Civil Rights Act and the U.S. Constitution on preemption, due process and equal protection grounds, and, to the extent executed contracts are involved, on Contract Clause grounds as well. The article analyzes other circumstances in which states and the federal government have previously restricted the right to contract based on status, and finds in nearly every case that the restriction of the right to contract affected members of a suspect class based on immutable characteristics such as race, national origin, alienage, gender, or servitude. While the Supreme Court has previously concluded immigration status is not a suspect class, this article argues that states' illicit use immigration status as a proxy for race, national origin or alienage satisfies the Arlington Heights test for disparate impact and therefore qualifies for strict scrutiny. In a modern, mercantile society, the right to contract is ubiquitous and now should be found to be fundamental. Laws such as the Hammon-Beason Alabama Taxpayer and Citizen Protection Act which purport to discriminatorily restrict or prohibit the right to contract should be struck down on multiple statutory and constitutional grounds.","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134529864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In their 1937 constitution, the Irish gave human dignity foundational placement, as a religiously-inspired root concept connected (as in the later West German case of 1949) to the subordination of the otherwise sovereign democratic polity to God, and for many to the moral constraints of his natural law. This essay takes up this neglected but revealing fact. It is critical that dignity came to the world as part of the establishment of an alternative, religious constitutionalism; this newer constitutionalism crystallized precisely in the 1930s when it seemed to many as if secular liberalism had no future. To understand the original meaning of constitutional dignity, in summary, it is necessary to attend to the confusing years just before war and genocide, for it was a response to different circumstances. The most illuminating context for the move to constitutional dignity, it turns out, is not in the shocked conscience “after Auschwitz” but in political Catholicism before it, which remained its dominant framework for decades, when the Holocaust still did not figure in moral consciousness. Focusing on dignity's Irish constitutionalization shows why this matters.
{"title":"The Secret History of Constitutional Dignity","authors":"Samuel Moyn","doi":"10.2139/SSRN.2159248","DOIUrl":"https://doi.org/10.2139/SSRN.2159248","url":null,"abstract":"In their 1937 constitution, the Irish gave human dignity foundational placement, as a religiously-inspired root concept connected (as in the later West German case of 1949) to the subordination of the otherwise sovereign democratic polity to God, and for many to the moral constraints of his natural law. This essay takes up this neglected but revealing fact. It is critical that dignity came to the world as part of the establishment of an alternative, religious constitutionalism; this newer constitutionalism crystallized precisely in the 1930s when it seemed to many as if secular liberalism had no future. To understand the original meaning of constitutional dignity, in summary, it is necessary to attend to the confusing years just before war and genocide, for it was a response to different circumstances. The most illuminating context for the move to constitutional dignity, it turns out, is not in the shocked conscience “after Auschwitz” but in political Catholicism before it, which remained its dominant framework for decades, when the Holocaust still did not figure in moral consciousness. Focusing on dignity's Irish constitutionalization shows why this matters.","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129812025","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state.The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many - colonists in the past, and political opportunists today - who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems - systems historically undervalued as “primitive,” and still under attack by those who see them as threats to the protection of human rights.There are no easy answers for how to correlate and link pluralistic adjudication in post-colonial African states, and Mozambique may present a particularly troublesome case. Although the precise mechanisms cannot be articulated with specificity, perhaps, the core underlying principles can. Those principles should respect traditional systems and values, affording them dignity as independent systems. To make them subservient to the state institutions, allowed to exist as long as they serve the state institutions on the state’s terms, would be nothing more than a repackaging and relabeling of tried-and-failed colonial approaches. Instead, the pluralistic regime should operate on the principle of “maximizing” the role and impact of indigenous law, and giving equal dignity to the institutions that apply such law. This will require state courts to defer to community-based adjudication, even declining to exercise jurisdiction when the case can be appropriately resolved in the latter forum. It will grant concurrent jurisdiction wherever possible, supplementing it with consent jurisdiction for those who could not otherwise be subject to the authority of the traditional forum. The most troubling aspects of traditional law, the oft-cited human rights violations, cannot be ignored. A mechanism can and must be developed for guarding against those, doing as little violence as possible to the autonomy and dignity of traditional fora. A system of collateral review - giving statutory courts limited jurisdiction to review a traditional forum’s decision for compliance with constitutional human rights standards - can serve that function. It is calculated to tamper with traditional dispute resolution systems as little as possible, and to respect the community forum as much as possible. Most importantly, it allows customary law to respond in its own way to the human rights requirements, not threatening customary law with restrictions, but strengthening customary law by fostering its legitimacy and relevance. Most importantly
{"title":"Legal Pluralism in Post-Colonial Africa: Linking Statutory and Customary Adjudication in Mozambique","authors":"David Pimentel","doi":"10.2139/SSRN.1668063","DOIUrl":"https://doi.org/10.2139/SSRN.1668063","url":null,"abstract":"Legal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state.The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many - colonists in the past, and political opportunists today - who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems - systems historically undervalued as “primitive,” and still under attack by those who see them as threats to the protection of human rights.There are no easy answers for how to correlate and link pluralistic adjudication in post-colonial African states, and Mozambique may present a particularly troublesome case. Although the precise mechanisms cannot be articulated with specificity, perhaps, the core underlying principles can. Those principles should respect traditional systems and values, affording them dignity as independent systems. To make them subservient to the state institutions, allowed to exist as long as they serve the state institutions on the state’s terms, would be nothing more than a repackaging and relabeling of tried-and-failed colonial approaches. Instead, the pluralistic regime should operate on the principle of “maximizing” the role and impact of indigenous law, and giving equal dignity to the institutions that apply such law. This will require state courts to defer to community-based adjudication, even declining to exercise jurisdiction when the case can be appropriately resolved in the latter forum. It will grant concurrent jurisdiction wherever possible, supplementing it with consent jurisdiction for those who could not otherwise be subject to the authority of the traditional forum. The most troubling aspects of traditional law, the oft-cited human rights violations, cannot be ignored. A mechanism can and must be developed for guarding against those, doing as little violence as possible to the autonomy and dignity of traditional fora. A system of collateral review - giving statutory courts limited jurisdiction to review a traditional forum’s decision for compliance with constitutional human rights standards - can serve that function. It is calculated to tamper with traditional dispute resolution systems as little as possible, and to respect the community forum as much as possible. Most importantly, it allows customary law to respond in its own way to the human rights requirements, not threatening customary law with restrictions, but strengthening customary law by fostering its legitimacy and relevance. Most importantly","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130641101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-09-09DOI: 10.1093/ACPROF:OSO/9780198298076.003.0003
P. Sands
¶1 The title of this timely and innovative new journal raises basic questions about the connection between human rights norms and development norms. What is their hierarchical relationship? How does the content of one inform that of the other, if at all? Is the international legal order a "bric-a-brac" or a "system"? Is it an aggregate of disparate elements haphazardly brought together or a systematically organized and coherent structure? If the latter, what organizing techniques, if any, exist to assure hierarchy? ¶2 In this Article, I set out some introductory thoughts on the relationship between and the hierarchy among different norms of international law. To be clear, the subject of relationship and hierarchy has several aspects. One is the general relationship between different sources of legal obligation, in particular between treaty and custom. A second is the relationship between different subject matter areas of international law: For example, which prevails in a conflict between treaty norms of the law of development and the law of human rights, or between the law of international trade and the law of the environment? A third aspect merges the first two: What is the relationship between a treaty norm arising in one area of international law and a customary norm arising in another? In this paper, I focus on the third issue, which has received surprisingly little attention, while touching also on the first aspect. ¶3 The relationship between treaty and custom—particularly across subject matter areas— may appear rather esoteric. In fact, it is a problematic subject that arises with increasing frequency. The world of international law is, in institutional terms at least, significantly transformed from that of a generation ago in at least two ways. First, there are more international "legislatures"—formal international institutions, conferences of the parties established by treaties, and so on—which are adopting ever
{"title":"Treaty, Custom and the Cross-fertilization of International Law","authors":"P. Sands","doi":"10.1093/ACPROF:OSO/9780198298076.003.0003","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780198298076.003.0003","url":null,"abstract":"¶1 The title of this timely and innovative new journal raises basic questions about the connection between human rights norms and development norms. What is their hierarchical relationship? How does the content of one inform that of the other, if at all? Is the international legal order a \"bric-a-brac\" or a \"system\"? Is it an aggregate of disparate elements haphazardly brought together or a systematically organized and coherent structure? If the latter, what organizing techniques, if any, exist to assure hierarchy? ¶2 In this Article, I set out some introductory thoughts on the relationship between and the hierarchy among different norms of international law. To be clear, the subject of relationship and hierarchy has several aspects. One is the general relationship between different sources of legal obligation, in particular between treaty and custom. A second is the relationship between different subject matter areas of international law: For example, which prevails in a conflict between treaty norms of the law of development and the law of human rights, or between the law of international trade and the law of the environment? A third aspect merges the first two: What is the relationship between a treaty norm arising in one area of international law and a customary norm arising in another? In this paper, I focus on the third issue, which has received surprisingly little attention, while touching also on the first aspect. ¶3 The relationship between treaty and custom—particularly across subject matter areas— may appear rather esoteric. In fact, it is a problematic subject that arises with increasing frequency. The world of international law is, in institutional terms at least, significantly transformed from that of a generation ago in at least two ways. First, there are more international \"legislatures\"—formal international institutions, conferences of the parties established by treaties, and so on—which are adopting ever","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134345394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.4324/9781315253565-45
Z. Lazzarini
The HIV/AIDS epidemic has made the problem of access to pharmaceuticals in developing countries a subject of intense public debate. This Essay contends that tensions between intellectual property rights and human rights are largely resolvable through the full utilization of exceptions under new international trade and intellectual property rules. Rather than undermining these regimes, the approach laid out in this Essay was anticipated by the international forum that established the World Trade Organization and issued the Trade-Related Aspects of Intellectual Property Agreement (TRIPS). Brazil's experience illustrates possible strategies, relevant to developing countries, which can be used to strike a balance between respect for public health and human rights and protection of intellectual property rights.
{"title":"Making Access to Pharmaceuticals a Reality: Legal Options under TRIPS and the Case of Brazil","authors":"Z. Lazzarini","doi":"10.4324/9781315253565-45","DOIUrl":"https://doi.org/10.4324/9781315253565-45","url":null,"abstract":"The HIV/AIDS epidemic has made the problem of access to pharmaceuticals in developing countries a subject of intense public debate. This Essay contends that tensions between intellectual property rights and human rights are largely resolvable through the full utilization of exceptions under new international trade and intellectual property rules. Rather than undermining these regimes, the approach laid out in this Essay was anticipated by the international forum that established the World Trade Organization and issued the Trade-Related Aspects of Intellectual Property Agreement (TRIPS). Brazil's experience illustrates possible strategies, relevant to developing countries, which can be used to strike a balance between respect for public health and human rights and protection of intellectual property rights.","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124069104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Examines the impact of changes in the nature of warfare, including technological advancements, on the international humanitarian law principle of discrimination.
审查战争性质的变化，包括技术进步对国际人道主义法歧视原则的影响。
{"title":"The Principle of Discrimination in 21st Century Warfare","authors":"M. Schmitt","doi":"10.2139/SSRN.1600631","DOIUrl":"https://doi.org/10.2139/SSRN.1600631","url":null,"abstract":"Examines the impact of changes in the nature of warfare, including technological advancements, on the international humanitarian law principle of discrimination.","PeriodicalId":364528,"journal":{"name":"Yale Human Rights and Development Journal","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114701356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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