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Cassirer v. Thyssen-Bornemisza Collection Foundation : Nazi Art Crimes Are Still Relevant in the Twenty-First Century
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Bombing Out: Using Full-Body Imaging To Conduct Airport Searches in the United States and Europe Amidst Privacy Concerns
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Interplay of WTO and U.S. Domestic Judicial Review: When the Same U.S. Administrative Determinations Are Appealed Under the WTO Agreements and Under U.S. Law, Do the Respective Decisions and Available Remedies Coexist or Collide?
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The Customary International Law Duty To Prosecute Crimes Against Humanity: A New Framework
Get PDFWithin its assumed analytical framework, contemporary scholarship cannot assert plausiblythat customary international law imposes a duty on states to prosecute crimes against humanity.Amnesties are necessarily inconsistent with a duty to prosecute, and the sheer glut of state practicegranting amnesties in times of crisis to perpetrators of these crimes is seen to prevent the duty toprosecute from arising. Although scholars recognize the normative shortcomings of thisconclusion, this is the position the present analytical framework requires. A new framework altersthe outcome. This Article transplants the derogation provisions of international human rights lawinto customary international law, retrospectively analyzing the six well-known amnesties. If theamnesty in question was granted at a “time of public emergency” as defined in the human rightsinstruments, it should properly be seen as derogation from the putative duty to prosecute ratherthan state practice contradicting the assertion of that duty. This new analytical framework divertsthe bulk of state practice seen by scholars to be contrary to the duty to prosecute into a separatecategory constituting an exception from that duty. Combined with new evidence in support of theduty, it is now plausible to assert that customary international law imposes on states a duty toprosecute crimes against humanity from which a small derogation exception is carved
Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective
Get PDFThis Article examines and compares, from a human rights perspective, both theconstitution-making processes and the bills of rights of the Indian and the South Africanconstitutions. The emphasis in this study is on the making of constitutions. It examines the impactof the radically divergent processes by which these constitutions were forged on their contents andthe different international landscapes amidst which those processes occurred. This Article’soverarching thematic argument is that a constitution can advance constitutionalism in four criticalways: (1) by defining the nature of the state, including a broad equality provision; (2) byaddressing social oppression and past injustices; (3) by defining property and land rights; and(4) by defining social and economic rights. It compares how the framers in India and South Africaused the framework of rights to achieve these tasks and highlights the Indian influences on theSouth African Bill of Rights.While the Indian Constitution was conceived and drafted before the adoption in 1948 of theUniversal Declaration of Human Rights (UDHR), the South African Constitution was adopted in1996, at the peak of the modern international human rights movement. The Indian Constitutionwas forged by an elitist process whereas the South African constitution was the product of asharply participatory process. While this Article applauds South Africa for its participatoryconstitution-making, it draws on the Indian experience to challenge the premise that a constitution’slegitimacy hinges on popular participation, arguing that this bit of accepted wisdom needs to beviewed critically