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Global Health Justice: A Perspective from the Global South on a Framework Convention on Global Health
Get PDFA global coalition of civil society and academics recently launched the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI), which is developing a post-Millennium Development Goal (MDG) framework for global health. JALI’s mission is the achievement of a global health treaty based on the right to health—a Framework Convention on Global Health (FCGH). The FCGH proposes establishing fair terms of international co-operation, with agreed-upon mutually binding obligations to create enduring health system capacities, meet basic survival needs, and reduce unconscionable inequalities in global health. States that bear a disproportionate burden of disease have the least capacity to do anything about it. The richer states are deeply resistant to expending the political capital and economic resources. When they do act, it is often more out of narrow self-interest or humanitarian instinct than a full sense of ethical or legal obligation. The result is a spiraling deterioration of health in the poorest regions, with manifest global consequences and systemic effects on trade, international relations, and security.
The very concept of global health justice as conceived by JALI and the FCGH is to have the global campaign led by civil society, with the major conceptualization and advocacy coming from the Global South. This paper presents the African, particularly South African, perspective on global health justice
Alien Tort Claims and the Status of Customary International Law
Get PDFMuch of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was the prevailing view at the time—a view that has subsequently been dubbed the “modern position.” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law. Filártiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal system.
Much of the ensuing scholarly debate about the status of customary international law has focused on human rights litigation under section 1350. The debate continues in the currently pending Kiobel v. Royal Dutch Petroleum Co., which, like Filártiga, concerns the applicability of section 1350 to litigation between two aliens based on human rights violations that occurred abroad.
The focus on section 1350—by critics and defenders of the modern position alike— has unfortunately diverted attention from the key concerns driving the modern position. The core tenets of the modern position are that customary international law is binding on the States, that federal interpretations of such law are binding on State courts, and that State court decisions regarding such law are reviewable in the federal courts. The modern position is based on an important structural insight well articulated by Hamilton in The Federalist: “[T]he peace of the WHOLE ought not to be left at the disposal of a PART.” The costs of a violation of international law by a state are borne by the nation, yet the benefits are enjoyed by the state alone. Though critics of the modern position have directed much of their fire at alien tort claims, these cases have never directly implicated the core of the argument for treating customary international law as federal law, and the fate of such claims does not depend on adopting or rejecting the modern position
Juvenile Justice After \u3ci\u3eGraham v. Florida\u3c/i\u3e: Keeping Due Process, Autonomy, and Paternalism in Balance
Get PDFLegal disputes involving children invariably evoke a complex matrix of issues such as child and adolescent capacity, individual rights and autonomy, parental authority, and in the criminal justice context-diminished culpability for a minor\u27s actions. While it is difficult to identify a clear and cohesive jurisprudence regarding the balance between children\u27s autonomy and children\u27s vulnerability across Supreme Court cases, a series of cases over the last decade, including Roper v. Simmons, Graham v. Florida, and J.D.B. v. North Carolina, offer a more consistent view of children as vulnerable, malleable, and in need of protection, at least in the criminal and delinquency context. In each of these cases, the Court solidly reaffirms the view that youth lack maturity and are more susceptible to negative influences. In Graham, the focus of this Symposium, the Court relied on this view of adolescence to conclude that a sentence of life without the possibility of parole is cruel and unusual punishment for juveniles who are not as well formed and therefore less responsible than adults for their conduct. This holding is undoubtedly a win for youth and youth advocates concerned about the increasingly harsh legal responses to adolescent criminal behavior. This Essay applauds the Court\u27s holding in Graham, however, it pauses to consider the impact of the Court\u27s analysis on the delicate balance of due process, autonomy, and paternalism in resolving children\u27s issues.
Specifically, this Essay considers Graham\u27s impact on the ever-changing philosophy of the juvenile justice system, which is often at a crossroads between its rehabilitative, punitive, and due process agendas. The Supreme Court\u27s affirmation in Graham of research on the important developmental differences between juveniles and adults may reinvigorate the rehabilitative goal of traditional juvenile courts and challenge the recent trend toward more punitive juvenile justice policies. However, it may also signal a shift back to a more paternalistic approach to children\u27s law and policy, including reduced autonomy for youth and greater state intervention in the lives of children
The Power to Block the Affordable Care Act: What Are the Limits?
Get PDFThough Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might be deemed a reasonable interpretation of the ACA because of a drafting error Congress made. Additionally, a president who opposes the individual mandate might be able to limit its effectiveness by directing the IRS not to make collecting the mandate’s tax penalty a high priority, and it is unclear whether the courts would accept the constitutionality of such an approach.
Although President Obama won the election, Congress could choose not to fund key parts of the ACA, but it lacks the votes to repeal the Act. Many parts of the ACA, including the health insurance exchanges and high-risk pools for people with pre-existing conditions, were directly funded and, therefore, would require an act of Congress to de-fund. Other components, however, including many relating to health workforce expansion, quality improvement, and some prevention programs were not directly funded, so they could be starved of money through Congressional inaction
The Power to Block the Affordable Care Act: What Are the Limits?
Get PDFThough Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might be deemed a reasonable interpretation of the ACA because of a drafting error Congress made. Additionally, a president who opposes the individual mandate might be able to limit its effectiveness by directing the IRS not to make collecting the mandate’s tax penalty a high priority, and it is unclear whether the courts would accept the constitutionality of such an approach.
Although President Obama won the election, Congress could choose not to fund key parts of the ACA, but it lacks the votes to repeal the Act. Many parts of the ACA, including the health insurance exchanges and high-risk pools for people with pre-existing conditions, were directly funded and, therefore, would require an act of Congress to de-fund. Other components, however, including many relating to health workforce expansion, quality improvement, and some prevention programs were not directly funded, so they could be starved of money through Congressional inaction
A Talent for Risk and Trust: A Tribute to Aryeh Neier
Get PDFThis essay is a tribute to Aryeh Neier, former president emeritus of the Open Society Foundations and founder of the Human Rights Watch. The author discusses Aryeh Neier\u27s talent for risk and trust
Be Careful What You Wish For: Changing Doctrines, Changing Technologies and the Lower Cost of War
Get PDFThe collective security structure created by the U.N. Charter is becoming shakier than ever, and two recent trends pose particular challenges to Charter rules on the use of force. The first trend involves a normative shift in understandings of state sovereignty, and the second trend involves improvements in technology--specifically, the rapid evolution of unmanned aerial vehicles, precision weapons, and surveillance technologies. Each trend on its own raises difficult issues. Together, they further call into question international law’s ability to meaningfully constrain the use of force by states
Islam in the (Inter)National
Get PDFIslam, Muslims, and Islamic law have become an intense American pre-occupation since September 11, 2001. Since then, much literature has been written in academia and public culture alike, deciphering the Muslim and the Islamic, bestsellers sold, careers made, and expertise claimed, solicited, and generously offered.
Unsurprisingly, another type of literature coincided with the rise of the literature on Islam and the Islamic, namely, the one on national security. Sometimes, this literature paralleled and intersected with that on the Islamic, with both fields claiming the same experts, though for the most part, the latter commanded its own independent list of bestsellers, experts, and careered stars. Indeed, if the establishment of centers and degrees in U.S. law schools and *181 universities with the title national security are any indication, the latter field can certainly claim to have commanded the higher interest, if not the resources. For all practical purposes, the centers and departments historically specializing in all things Islamic have, since September 11, witnessed a loss of status, if not money and resources, ironically in the name of national security. The proliferation of the former has coincided with the dwindling of the latter. The experts of the old have been replaced by the media starred experts of the new
Developing the Substantive Best Interests of Child Migrants: A Call for Action
Get PDFThis Article attempts to accomplish two goals. First, it provides an overview of what is known and unknown about international child migrants. While this Conference will focus to some degree on child migrants in the United States, this Article shows how significant this phenomenon is around the world. Therefore, this Article provides data and points out the research gaps surrounding this issue.
Equally significant is the lack of legal and policy tools available for governments to respond well and in accordance with the Convention on the Rights of the Child ( CRC ) to the children themselves. First, informed by social science research, this Article briefly sets out the grounds for treating children as unique. This will lay the foundation for policy makers to think about child migrants as children first and above all. Second, this Article then looks at norms and practices that recognize the uniqueness of children and child migrants in particular. Finally, this Article suggests examples of how we-scholars, practitioners, policy makers, and adjudicators- might begin to develop better tools to address what sets child migrants apart
Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico
Get PDFAlthough liberal trade and development scholars disagree about the merits of the World Trade Organization (WTO), they both assume that WTO legal obligations restrict states’ regulatory autonomy. This article argues for relaxing this shared assumption by showing that, despite the restrictions imposed by international economic law obligations, states retain considerable flexibility to carve out policy autonomy. The article makes three distinct contributions. First, it analyzes how active WTO members can, through litigation and lawyering, influence rule interpretation to advance their interests. Second, the article redefines the concept of “legal capacity” in the WTO context and introduces the term “developmental legal capacity,” which describes how states can use legal tools and institutions not only as a sword to open new markets but also as a shield for heterodox economic policies. Third, the article offers a comparative analysis of two case studies, Brazil and Mexico, and shows that they have pursued different trade and litigation strategies. While subject to the same WTO obligations, these countries have made different use of their policy space according to their own economic objectives. The article concludes that, despite the apparent rigidity of the WTO, countries following a deliberate strategy can expand their regulatory space to advance their own interests