Derek Jinks

The Persistent Power of Human Rights: Social mechanisms to promote international human rights

The study of the international human rights regime has increasingly emphasized how this regime matters rather than if it matters. An especially productive turn focuses on integrated conceptual models, which accept the importance of multiple forms of influence on state behavior. The Power of Human Rights (PoHR) provided a foundation for such studies by bringing attention to the significance of different logics of interaction at different points in the socialization process of states (Risse et al. 1999). That leading work and allied scholarship recognize the complexity of actor motivation, human and organizational behavior, and the global-level social environment. What is needed now is a social theory that accounts for why human rights abuses occur and how the international community does or might influence rights abusers to alter their behavior. The objective is to explain how changes in the relevant social environment – namely the existence, and ultimately the formal acceptance, of international human rights – affect the behavior of individuals, governments and non-governmental organizations. The “spiral model” of human rights change developed in PoHR – and further elaborated in this volume – is an important step in developing such a theory. At a high level of generality, the model provides a conceptually and empirically compelling account of the relationship between national policies and formal international human rights regimes. On this model, various socialization processes work together to influence non-compliant states to accept and ultimately comply with human rights norms through a five-stage process: repression, denial, tactical concessions, prescriptive status, and rule-consistent behavior. The model emphasizes how instrumental adaptation, argumentation and habitualization impel states first to commit formally to human rights regimes and thereafter, under certain conditions, to internalize human rights norms. Four mechanisms of social influence are identified by the authors as crucial to modeling the domestic political consequences of the human rights regime: coercion; incentivization; persuasion/learning; and capacity-building.

Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies

Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies.- Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armes Conflict.- The Role of the U.S. Judicial Branch During the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests.- International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts.- Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.- The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience.- Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law.- Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? The European Court of Human Rights Engagement with International Humanitarian Law.- The Interaction between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia.- Applying the Laws of Armed Conflict in Swiss Courts.- International Humanitarian Law in the Courts of Australia.- Aut Deportare Aut Judicare: Current Topics in International Humanitarian Law in Canada.- International Humanitarian Law in Indian Courts: Application, Misapplication and Non-Application.- Interpretations of IHL in Tribunals of the United States.- The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms.- The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies.

Applying international humanitarian law in judicial and quasi-judicial bodies: International and domestic aspects

Introducing International Humanitarian Law to Judicial and Quasi Judicial Bodies.- Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armes Conflict.- The Role of the U.S. Judicial Branch During the Long War: Drone Courts, Damage Suits, and Freedom of Information Act (FOIA) Requests.- International Humanitarian Law in the Maritime Context: Conflict Characterization in Judicial and Quasi-Judicial Contexts.- Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.- The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience.- Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law.- Armed Conflict and the Inter-American Human Rights System: Application or Interpretation of International Humanitarian Law? The European Court of Human Rights Engagement with International Humanitarian Law.- The Interaction between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia.- Applying the Laws of Armed Conflict in Swiss Courts.- International Humanitarian Law in the Courts of Australia.- Aut Deportare Aut Judicare: Current Topics in International Humanitarian Law in Canada.- International Humanitarian Law in Indian Courts: Application, Misapplication and Non-Application.- Interpretations of IHL in Tribunals of the United States.- The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms.- The Mavi Marmara Incident and the Application of International Humanitarian Law by Quasi-Judicial Bodies.

Introducing International Humanitarian Law to Judicial and Quasi-Judicial Bodies

During the last decade, international humanitarian law has acquired a new vigor in the jurisprudence of international and domestic courts and tribunals. Alongside standard application in cases concerning refugees or war crimes prosecutions, recent jurisprudence has seen international humanitarian law acquiring an assertive stance on highly debated and complex issues, relating to the conduct of warfare. This chapter will map the judicial as well as institutional and thematic expansions international humanitarian law has undertaken during the last years, attempting to project also the field’s preponderance in international and domestic jurisprudence also in the future. In this respect, the role of quasi-judicial bodies will be also stressed.

Disregarding Foreign Relations Law

What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nations interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.