Academic journal article Proceedings of the Annual Meeting-American Society of International Law

New Voices: Human Rights

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

New Voices: Human Rights

Article excerpt

This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Dinah Shelton of the George Washington University Law School, who introduced the panelists: Chelsea Purvis of Minority Rights Group International; Moria Paz of Stanford University; Andy Spalding of the University of Richmond School of Law; and Katharine Young of Boston College Law School.

INTRODUCTORY REMARKS BY DINAH SHELTON *

The international lawmaking process has long been a topic of scholarly interest and divergent views, from highly state-centric and positivist approaches to decentralized and expansionist concepts that blur or erase any line between legally binding norms and non-binding political commitments. The attention given to lawmaking processes is particularly pronounced in the field of human rights, where concerns over "devaluing the currency" through too great an expansion of the catalogue of rights is countered by concerns for addressing critical new issues through a rights-based lens. In this debate, the role of international and domestic tribunals is a central focus, especially given the proliferation of international human rights bodies and the increasing number of complaint mechanisms that exist in global and regional organizations.

Each of the four young scholars on this panel is concerned with the development of new rights, enforcement of existing rights, and the role of international and domestic tribunals in respect to such development and enforcement. While the topics they address appear quite diverse, the lawmaking theme and role of tribunals is central to each of them. Moria Paz states that global and regional bodies "create rights," and do not just enforce them. If indeed this is what international tribunals do, then she may rightly criticize their approach to language rights. Others might argue, however, that the role of tribunals is not legislative in nature, but is limited to enforcing the applicable legal instruments in a dynamic manner that stops short of creating rights that were omitted from the texts when they were drafted.

Chelsea Purvis and Katharine Young also look at the interpretation and enforcement of human rights. Chelsea points to a lack of awareness of the innovative normative framework and jurisprudence of the African human rights system. The lawmaking process in Africa has resulted in progressive treaties to guarantee new rights, while the African Commission has given broad readings to the rights thus included in the African legal instruments. By building on the texts and the jurisprudence of other regional and global institutions, the African Commission has made unique contributions to human rights law that are worthy of study and are in turn influencing other tribunals and lawmakers. Katharine Young reveals that similar innovations are occurring in domestic courts that address the implementation and enforcement of economic and social rights. In these instances, as well, the line between interpretation and creation of new rights is a sensitive issue for tribunals.

In contrast to the focus on interpretation and enforcement of existing rights, Andy Spalding suggests the emergence of a new right--freedom from corruption--and examines how tribunals and regulatory agencies may recognize and give effect to this new right. His focus is domestic courts and the issue of corporate liability for overseas human rights violations. He proposes an expanded reading of the Foreign Corrupt Practices Act instead of the recent intense focus on the Alien Tort Statute. He sees the possibility of regulatory enforcement of the FCPA to address the same kinds of abuses that have been the subject of ATS litigation.

These four papers, which can only be summarized in the Proceedings, deserve publication in full. They raise important issues and broad questions about the development of human rights law and the role of international and domestic tribunals in that development. …

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