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  Acknowledging the Complexity of the Human Rights Regime

  Philip G. Alston

  At first glance, vernacularization and quantification might seem to have little to do with one another; in fact, they both serve to emphasise the importance of a nuanced and sophisticated understanding of the complexities of human rights. Simplicity and neatness are often sought by those who wish to ensure that human rights norms are understood and respected, that compliance can be measured and that countries’ performance can be judged and compared. But there are limits to simplification, whether it applies to the normative framework or to the evaluation of compliance. This volume explores the limits of two of the most prominent techniques for promoting what might be termed the ‘de-complexification’ of human rights. The first is an insistence that human rights norms represent a universally valid and accepted consensus and that they do, or should, have the same meaning everywhere in the world (the universalising technique). While the aspiration to achieve universality in certain respects is integral to the international regime, that term is often understood and invoked in ways that are both inappropriate and counter-productive. The second is the rapidly increasing use of quantification, and especially of composite indicators, to capture the essence of complex rights issues, to evaluate compliance and to rank the human rights performance of states or other actors (the quantification technique). Again, while indicators are potentially important to developing a deeper understanding of what is happening in practice, it is important to recognise their limitations and their potential to distort reality.

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  Imagining an American Nation: Sharing Our Stories

  Kwame Anthony Appiah

  In New Narratives on the Peopling of America, editors T. Alexander Aleinikoff and Alexandra Délano Alonso present an extraordinary collection of original essays that reshape our understanding of the peopling of the United States. This thought-provoking volume goes beyond conventional accounts of immigration by reexamining narratives about foreign-born populations in the United States. It situates them as part of a larger story of forced displacement and dispossession that needs to include indigenous people, enslaved persons, deported and returned migrants, and those residing in territories and foreign nations acquired by the United States. The diverse range of contributors―which include academics, journalists, artists, legal scholars, and activists―confront complex topics such as migration, racial justice, tribal sovereignty, and the pursuit of equality. As nationalism, globalization, and economic challenges reshape the social and political landscape, this timely volume calls for a reevaluation and reconstruction of national narratives of belonging. Challenging nativist tropes and offering broader understandings of collective history, this path breaking book centers issues of race and dispossession in the story of the American people. New Narratives on the Peopling of America is an essential resource for students and a compelling read for general readers seeking a deeper understanding of the complex tapestry of American identity.

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  Making Change

  Kwame Anthony Appiah

  This chapter reviews the arguments for the role of honor in moral revolutions, stressing the role of social movements with identities organized around their aims. Using the examples of anti-footbinding in China and the abolitionists in Great Britain, the chapter shows that a movement will be successful if it creates an identity, such as an abolitionist, through a shift in attitudes in society. Abolitionism encompassed a wide range of social classes, who were ashamed of the slave trade. The chapter proposes that a similar shift in attitudes in society may well occur, with regard to the urgent environmental climate crisis that the world is now facing. What may work, the historical evidence suggests, is the development of ‘green’ identities around a small set of relatively well-defined aims.

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  Foreword

  Gráinne de Búrca

  This volume is based on an intriguing premise, reflecting a similar approach to that adopted in some other ‘Leading Works’ volumes, which is that a promising way to reflect on the field of international law and on the development of international law scholarship is to ask a number of prominent academics in the field to consider and discuss one or more major works, its origin and its influence on the field over time, as well as on the work of the authors themselves. In this particular volume, the editor has asked the various contributors to focus on one of their own major works, rendering the autobiographical dimension of the reflections all the more interesting for the reader. Following this approach, Donna Lyons has assembled and introduced an impressive line-up of prominent academics from various fields of international law and from various parts of the world and different scholarly traditions and perspectives to provide their reflections. The range of work discussed includes field-defining contributions from scholars such as James Crawford (completed by Freya Baetens, following his untimely death) on the creation of states, Eyal Benvenisti on the law of occupation, and Muthucumaraswamy Sornarajah on international investment law. It covers contributions to international legal scholarship by iconic critical authors Martti Koskenniemi and David Kennedy (in conversation with each other other), as well as from Obiora Okafor on the imperialism of international law from a TWAIL perspective. The scholarly contributions on which the authors reflect include major works on human rights from political science scholars Beth Simmons and Kathryn Sikkink, thoughtful interventions from Martha Minow on accountability after mass atrocity, and from Fionnuala Ní Aoláin, Dina Francesca Hayes, and Naomi Cahn on gender in post-conflict processes. Oona Hathaway and Scott Shapiro discuss their work on the prohibition of the use of force from a historical perspective, while Larry Helfer looks back on his influential work on exiting treaties and its impact over time. It would be difficult for any volume to claim to represent much of, or even the most prominent contributions to, a field of scholarship as broad as that of international law, whether in its list of authors or in its subject matter. The breadth of the field is vast, the range of perspectives, approaches, and preoccupations is enormous and diverse, and the potential list of worthy scholars is dizzying. There will always be room for pointing to gaps, omissions, alternatives. Nevertheless, Donna Lyons has brought together some of the major and justly celebrated authors in prominent fields of international law, which make this volume an interesting, enjoyable, and educational read. A second question is whether the best way—or even a good way—to gain an understanding of the fields of international law scholarship and to assess the influence of different approaches or the impact of different scholars is to ask the authors themselves. It is not clear that we as academics are the best judges of our own work, or can clear-sightedly appraise the significance and impact or otherwise of our ideas and their exposition. On the other hand, there is already a multitude of conventional ways, including book reviews, debates, and scholarly responses, to give critics and interlocutors ample opportunity to challenge, criticise, and assess the scholarship of others. It is, however, relatively rare to hear a scholar reflect openly on their own work. We may occasionally hear what it was that prompted or inspired a piece of scholarship, or what the motivation for a given academic work was, but it is less usual to encounter authors publicly contemplating what their contribution to the field may have been and how their work has or has not been received. The autobiographical dimension of this particular collection—the ways in which the various scholars who have been invited to consider their own contributions to the field express their thoughts on this question—is interesting and original in its own right, and makes for a fascinating set of chapters. Not all of the authors have approached the task in the same way, which makes the book more interesting for the reader. Some have chosen to elaborate in more depth on what prompted their decision to write on a particular subject, who or what influenced them in that choice, and the questions they wrestled with as they wrote. Some have focused in more detail on the political and economic context in which the work was written, and what the author hoped to achieve by their academic intervention. Other authors have looked more closely at the range of critics and supporters of their ideas, at the initial reception of the work and its subsequent influence on other scholars as well as on elements of practice. Some of the authors reflect on whether their ideas have held up, and what changes the current context might suggest. There are fascinating autobiographical details that contextualise the work of producing scholarship and give additional colour and nuance to leading texts with which readers may be familiar. Ultimately, perhaps as much as or even more than learning about the meaning and contribution of these leading works of international law scholarship, what the reader gains from the chapters in this volume is a sense of learning more about the authors themselves, some glimpses of their psychology and character, their understanding of their role as scholars, practitioners and critics, and how they view the significance—or otherwise—of the field of international law.

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  Harm Principle

  Richard A. Epstein

  The Elgar Encyclopedia of Crime and Criminal Justice stands apart as the most comprehensive global reference title in its field. New entries will be added every month and PDF downloads will be available once the Encyclopedia is complete.

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  Tuck’s Democracy

  John Ferejohn

  Richard Tuck argues in chapters 1 and 2 that modern democracies are really no such thing. Most, he says, have followed Abbé Sieyès in adopting a form of government, based on elected representatives, in which the “effective” citizenship is reserved to a small fraction of the people who have the political rights or capacities to play an active role in government. The rest remain passive citizens who enjoy some security and welfare and protection of civil rights, but whose role in government is confined to periodic (and not very frequent) elections. He traces Sieyès’s legacy through Hegel, Guizot, and Mill and, in our own day, to Joseph Schumpeter and others who defend what many have called minimal or “elitist” versions of democracy. Bernard Manin has described this system in detail in his book on representative government, and many defend it as the best feasible kind of democracy for a modern state. Moreover, at least since World War II, modern states have increasingly adopted rigid, judicially enforceable constitutions with the effect of guaranteeing the protection of the rights of both passive and active citizens, and specifically against the actions of the majority. Tuck regards modern Sieyèsian government, constitutional representative government, as profoundly undemocratic and argues in favor what he calls radical (majoritarian) democracy—advancing a theory of what he calls a “Rousseauian” kind against its modern critics. Tuck builds his theory on a novel conception of “active citizenship” in which, he claims, individuals can see themselves as causally responsible in some way for the laws—or at least the newly enacted laws. Insofar as most people can think of themselves plausibly as active citizens in this way, Tuck says that the laws will be legitimate because the people would be living under laws they “made.” Active citizenship, he argues, is both an attractive and feasible idea for the modern democratic state. If citizens embraced this self-conception, individuals would be amply motivated to exercise their political rights as active citizens and in that respect, live under laws of their own making. Tuck also insists that everyone who lives (legally?) in the country and is subject to its laws, must be allowed a genuine role in making them. Each (adult) resident— male, female, alien, or native—must therefore be enfranchised in order to make law with others on equal terms. Tuck recognizes that by permitting the vote to all legal residents, there would have to be regulation of movement at the borders and an immigration policy that assures that those who come are committed to living together with others on equal terms. This policy, he hopes, will be as liberal as possible, but if I understand his conception correctly, I am not sure how liberal it can be. Tuck allows that we may, for practical reasons, choose to elect representatives to parliament so that they may (perhaps?) debate and develop legislative proposals and may (in the end) formally enact the laws. But these representatives, he argues, ought to be instructed delegates, whose duty is to execute the instructions conveyed to them by their constituents. He seems to agree with Rousseau that laws should be general, more like constitutional provisions rather than ordinary legislation. Besides, construing laws as pertaining to constitutional essentials—which might be few in number and general in scope—makes plausible the notion that ordinary people would have views on those matters and that representatives could be instructed to act on those views. If there is a chance that representatives may stray from their remit, perhaps instructions would need to backed up with recall elections (as in California) but Tuck seems not to require this. These institutional ideas are not really developed much here beyond hints from and an implicit reliance on Rousseau’s political works to help fill in the blanks. Tuck’s institutional principles seem to be these: 1. (generality) Each person should be treated equally by the law (as a subject); laws are general/abstract “constitutional” provisions. 2. (democracy in one country) Each (adult legal) resident should have an equal role in lawmaking activity, subject to legal residence being regulated at the borders. 3. (radical democracy) Laws (principle 1) are made either by direct majority vote among those eligible to vote (principle 2) or by elected representatives acting according to instructions given them by their constituents (principle 2). These principles are consistent with and supported by what seems to be a moral principle: 4. (active democracy) Each person regards him- or herself as obliged to exercise his or her right to vote actively by playing the part of an agent in making the laws together with others. I have several questions. In section I, I ask whether Rousseau’s institutional prescriptions provide much help for Tuck’s radical democracy project. First, despite what French revolutionaries may have thought, it is very hard to see Rousseau as committed to either to equality in voting or to democratic government. While the sovereign must approve any law by voting, it is not clear that the voting rule would weigh each vote equally. Second, It is not clear to me that the Rousseaian institutional principles 1 and 3 actually constrain the government from acting arbitrarily. If laws must be general and abstract, as Rousseau and Tuck demand, government officials must retain authority to interpret laws in order to apply or follow them. Moreover, the sovereign, as such, seems to lack any “legal” way of responding to particular governmental acts by, for example, striking down offending decrees. Such an action would necessarily be particular rather than general. Moreover, while elected representatives are to be restricted to following instructions in making general laws, are they also restricted in any way when undertaking magisterial activity (enacting day-to-day particular legislation and appropriations and decrees, which form most of the activity of a modern parliament)? In section II, I explore Tuck’s agentic view of politics and argue that what makes Tuck’s radical democracy attractive is its foundation in the moral principle of active agency. Unless people see themselves as having the obligation to take an active responsibility for the laws in the way that principle 4 requires, radical democracy seems more dangerous than alluring. Section III concerns diversity and the treatment of minorities both outside the country (seeking residence) and inside (seeking protection against repression). How is principle 2 supposed to work? Presumably the state must have the authority to restrict entry to assure that those who enter are suitably committed to common purposes. This may be a very demanding and potentially quite illiberal requirement. Potential entrants might need to show they are morally worthy of citizenship. Rousseau’s recommendations as to how Poland should treat its serfs may provide some guidance. He recommends treating them as supplicants asking for admission and not as rights-bearers. Moreover, is state policy to be restricted only to admitting (some of) those people who appear to be committed to active citizenship of the kind Tuck recommends? Or may the failure to conform to the morality of active citizenship also justify expulsions of those already in the community? Then, whatever law the people, as sovereign, enact concerning immigration, how does that actually constrain governmental interpretation and enforcement either at the border or when considering the treatment of historically oppressed minorities (the Polish serfs again)?

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  Israel Between Nationalism, Religion, and Liberalism

  Moshe Halbertal

  The most important and central issue with which the State of Israel has to contend is that of determining its character as a democratic Jewish state. Resolution of this issue will determine the state’s identity and, for good or ill, its future and its very legitimacy. At the heart of the tension lie two questions: What constitutional and legal elements may be derived from Israel’s “Jewish” component, and how do these elements accord, if at all, with the state’s liberal-democratic obligations? The adjective “Jewish” may contradict the adjective “democratic” in one of its two meanings—the religious and national meaning. In the religious sense of “Jewish” a situation could arise where the Jewish state might undermine Israeli citizens’ basic freedoms, including freedom of worship. A Jewish state of this kind, aided by coercive mechanisms available to the state for achieving religious goals, cannot be democratic in the full and commonly understood sense of the term, as by its very nature it would curtail its citizen’s freedom of religion and the religious pluralism of its constituent communities. In the national sense of “Jewish,” the state’s Jewish component could undermine the principle of equality between citizens, an essential part of the state’s liberal-democratic outlook. In this regard, the democratic component is harmed not by the religious features that may be subsumed within the concept of a “Jewish state,” but by the ultranationalist character that can be associated with this concept, an ultranationalism that would favor Israel’s Jewish citizens and discriminate against its other citizens, those belonging to minorities. This being the case, when we discuss the question of Israel’s identity as a democratic Jewish state, this is not a theoretical debate over a long-term vision, and the answers to that question dictate the precepts that define the underlying existential struggles within Israeli society. Israel faces momentous geopolitical challenges, but the big questions in this regard involve internal tensions concerning the very fact of Israel being defined as a democratic Jewish state—and those tensions could potentially shatter the country from within. Is it possible to have a Jewish state compatible with democratic principles where there is real substance to the state’s Jewish-identity component? And can that substance meet the test of liberal and democratic political thought? To clarify, let’s ask the following question: Could a Catalonian state, established on secession from Spain, be a democratic and liberal Catalonian state? Many Catalonians in Spain want a state of their own with its capital in Barcelona. In such a country, as in all European nation-states whose official language is the language of its constitutive nationality, such as Denmark, Finland, Norway, Germany, and the Czech Republic, Catalan would be the official language, the state’s symbols would be rooted in the culture of the Catalonian ethnocultural majority, the state calendar would be oriented toward Christianity and would mark Catalonian historical and cultural events, the national anthem would reflect the country’s Catalonian identity, and the state education system would impart the Catalonian national and cultural heritage to its young generation. The Catalonian state would allocate tax revenues at its discretion, based on such considerations as the welfare of its citizens, and its foreign policy would be determined by, among other things, the interests of the Catalonian ethnocultural majority. One may reasonably assume that Catalonia’s immigration policy, like the immigration policies of the Scandinavian and other European countries that limit immigration in order to safeguard their national identity, would ensure the maintenance of a Catalonian majority within the state’s borders. The situation described above is by no means unusual in modern Western history. The Norwegians, for instance, demanded all of the aforementioned conditions when they separated from Sweden under threat of war in 1907, based on the rationale that they see themselves as a distinct ethnocultural group. Like Norway, the envisioned Catalonia would not be neutral in any sense. But it is also true that there is no reason why it should be, given that those belonging to the Catalonian ethnocultural population have the right to self-determination, including a sovereign territory where the Catalonians are the majority, and where a common cultural space has been created in which the Catalonian cultural and historical identity is expressed. What we may conclude from the Catalonia test is that whether Catalonia or any other country is a liberal state does not depend on its being neutral in terms of its identity. The quality of the democratic system in such a nation-state may be assessed in terms of two other major criteria. One is whether the character of the state as a Catalonian nation-state undermines the political, economic, or cultural rights of the non-Catalonian minorities living in Catalonia; the other is whether Catalonia would accord the right to self-determination to other national groups such as the Basques—a right that many Catalonians are currently demanding for themselves. Upholding these two criteria is what distinguishes democratic nation-states from ultranationalist states, and both criteria are themselves the great test of the nation-state. Ultranationalist states are sovereign frameworks whose national identity translates into negation of the political, economic, and cultural rights of their resident minorities. Nor do ultranationalist states support the right to self-determination for other groups living alongside or within them. Ultranationalists do not regard such groups as actual peoples, and they relate to them as invented nationalities, which, as such, are not entitled to national self-determination. Israel’s legitimacy as a nation-state will be tested in terms of the same criteria by which other nation-states are assessed. If, in the name of the Jewish-state ideal, Israel’s Arab citizens are denied their rights, then Israel’s legitimacy as a Jewish nation-state will suffer a deadly blow. By unequally allocating resources for infrastructures and education, by distributing land in a discriminatory fashion, and by failing to recognize new localities founded by the state’s Arab minority, Israel risks transforming from a democratic nation-state into an ultranationalist nation-state. Furthermore, the principle of civil equality ought to ensure the right of all citizens to participate in government fully and on the basis of appropriate representation. Disqualifying Arab parties on principle from membership in the ruling coalition is another manifestation of an ultranationalism that cultivates the idea of “the enemy within,” making the minority an entity that has to be excluded and whose member citizens are of lesser status. Systemic inequalities of this kind constitute unjustifiable discrimination against the state’s Arab citizens. Not only that, but they also undermine the legitimacy of the state of the Jews. A Jewish nation-state can, and must, accord full equality to its Arab citizens in all areas where it has failed to do so thus far, and it must recognize those citizens as a national-cultural minority group whose Arabic language is the state’s second official language, whose calendar is recognized as an official calendar, and for which it operates a public education system that cultivates the Arab cultural traditions of its citizens. As with other nation-states, the second condition that Israel must meet in order to be considered a democratic nation-state is that of recognizing the rights of the Palestinian people to national self-determination in the West Bank and the Gaza Strip—the same right we demand for ourselves. The denial of this right, and the settlement policy that aims to create a reality in which the exercise of that right is impossible, undermines Israel’s legitimacy as a Jewish nation-state. It should be noted that fulfillment of the first condition is entirely in our hands, but that denial of the right of Arab citizens to governmental participation is, unfortunately, becoming the issue on which the political identity of Israel’s growing ultranationalist camp is based. Regarding the Palestinian right to self-determination, things do not depend solely on Israel; they also depend on the Palestinians being ready to live in peace and security alongside Israel. The liberal democratic obligation imposes yet another constraint on the “Jewish state” definition, one related not to the principle of equality but to that of liberty. Classical liberalism sees the state’s role not as dictating how communities or individuals should live their lives, but as safeguarding their right to maintain their way of life as they understand it, so long as they grant a similar right to the individuals and communities that live alongside them. Israel, as a democratic state, is obligated to safeguard its citizens’ freedom of religion and their freedom from religion. Beyond the basic principle that would invalidate religious legislation, based on liberal ideals of freedom of religion and freedom of conscience, opposition to the use of the state’s coercive power on matters pertaining to Jewish identity has yet another foundation Israel is supposed to be the state of the Jews and not just the Jewish state. When Israel, through coercive power, becomes the arbiter on issues of modern Jewish identity, it inevitably alienates many Jews from the state. Because Jews are so deeply divided on these questions, every decision the state makes will undermine Jews’ sense of belonging to Israel. Israel cannot, therefore, simultaneously be a “Jewish state” in the halachic sense, either fully or in part, and also the “state of the Jews.” Assuming that Israel’s commitment to liberal democracy imposes on the state’s Jewish identity the limitations dictated by the values of freedom and equality—what are the elements on which its identity as a Jewish state is based? Israel’s Jewish character is supposed to be embodied in four components. The realization of these components does not negate the possibility of Israel being a liberal-democratic state.

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  „Making the World Safe for Democracy“: Einige Beobachtungen zum Verhältnis von Internationaler Rechtsordnung, Demokratie und globaler Sicherheit

  Mattias Kumm

  The article analyzes how in WWII the Roosevelt administration conceived of and structured the new world order they were building to „make the world safe for democracy“. It then goes on to analyze how in its current form that order fails in this task. The current international legal order fosters and enables great power competition by structurally failing to provide mechanisms for holding accountable great powers when they illegally use force. Such structural lack of accountability lies at the heart of dynamics of resentment driven establishment of counter-power by other states. This in turn leads to militarized great power competition with great risks of major wars. Reforms aimed at holding great powers legally accountable are not only compatible with democracy, they are the precondition for successfully institutionalizing a system of international law that may actually succeed in making the world safe for democracy.

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  Pandemics, Privatization, and Public Education

  Melissa Murray and Caitlin Millat

  Much has been made of the COVID-19 pandemic's impact on women and families; in particular, on professional women who left the workplace in droves to assume caregiving burdens in the pandemic's wake. But the discussion of this “she-cession” often omitted one key player: the state. This chapter surfaces how the pandemic also laid bare the state's historically anemic support for caregiving, highlighting how the state's primary caregiving subsidy has come in a surprising form: the provision of public education. And when even this meager contribution dwindled during the pandemic, families were unsurprisingly tasked with privately taking up the slack.

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  Dobbs's Democratic Deficits

  Melissa Murray and Katherine Shaw

  The Dobbs decision ostensibly rests, in part, on a commitment to democracy—Justice Alito’s majority opinion made repeated reference to democratic deliberation as the proper mechanism for resolving the abortion debate. There are, however, reasons to doubt the Dobbs Court’s commitment to democracy. First, this chapter traces the history of the rhetoric of democracy in the Court’s abortion cases. Second, it explains that the pro-life movement’s shift toward state-by-state settlement of abortion occurred only after a failed attempt to pass a constitutional amendment that would have outlawed abortion nationwide. Finally, it turns to Dobbs itself to discuss the decision’s deep democratic myopia displayed in the opinion’s historical method and in its assessment of the current electoral landscape. The Court’s extremely limited view of American history, institutions, and democratic participation leads to the conclusion that Dobbs cannot genuinely be understood to rest on or further principles of democracy.

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  Globalising the Indigenous: The Making of International Human Rights From Below

  César Rodríguez-Garavito

  The human rights field finds itself at a critical juncture. In addition to facing a formidable combination of challenges—the climate emergency, resilient populist-authoritarian governments, the impact of a global pandemic, rising socioeconomic inequalities, and polarising and invasive digital technologies—human rights have come under increasing scrutiny from scholars who view the current era as the ‘end times’ of the movement. Although critiques come from very different angles—from conservative social thought to postmodern critical legal studies—a distinctively progressive critique of human rights has been developed by some of the most influential contributors to this debate. According to this line of argument, the simultaneous global expansion of neoliberalism and the rise of international human rights over the last five decades is not a historical coincidence. In this view, by focusing on civil and political rights rather than on socioeconomic rights and rising inequality, human rights actors have provided political and legal ammunition to neoliberal capitalism. Given this diagnosis, critics tend to see little role for human rights in twenty-first-century progressive theory and politics. A striking feature of this line of criticism is that it is based on a highly limited view of the actual practice of human rights. It is a perspective whose eyes are directed largely at the most visible actors in the Global North. For Hopgood, for instance, ‘Human Rights are a New York–Geneva–London-centered ideology focused on international law, criminal justice, and institutions of global governance. Human Rights are a product of the 1%. Moyn’s criticisms are almost invariably focused on international non-governmental organisations (INGOs) such as Human Rights Watch, as if they were a proxy for the movement writ large. Therefore, paradoxically, the critics adopt a North-centric view of the field that is akin to that of the staunchest defenders of the traditional approach to human rights advocacy. This is the approach taken by some of those INGOs and other human rights actors that continue to operate along the lines of the intellectual, organisational and strategic paradigm of the second half of the twentieth century, which privileged the role of North-based NGOs in naming and shaming governments (mostly in the Global South) before receptive audiences (mostly in the Global North) in order to pressure the former to comply with international human rights norms. For defenders of this paradigm, naming and shaming is ‘still the human rights movement’s best weapon’, regardless of the facts that today’s populist authoritarian leaders are both shameless and eager to be named and that the world is undergoing epochal geopolitical, technological, ecological and economic transformations that render the traditional paradigm increasingly ineffective. Critics like Hopgood are right to call out persistent inequalities within the movement—for instance, between Northern versus Southern organisations, professional NGOs versus grassroots movements, white-led versus non-white-led organisations. However, the practice of the human rights movement is considerably more heterogeneous, dynamic and contested than the views of both critics and defenders of the status quo would suggest. Documenting and engaging with the everyday life of human rights requires broadening the field of vision well beyond Geneva, London or New York. This, in turn, calls for two conceptual and methodological moves. First, it entails tracking how the international standards developed in those sites are translated, implemented, indigenised, contested and even transformed at the national and local levels. Second, it involves looking into the active role of subaltern subjects, from racially oppressed communities to impoverished classes, women, undocumented migrants, indigenous peoples and other actors that are lumped together as ‘victims’ in the traditional view of rights. This expanded view creates analytical and empirical space to capture the myriad ways in which subaltern actors not only adopt or contest, but also often transform, create and re-export new human rights norms and frames that challenge not only the traditional paradigm of international human rights, but also the rules of neoliberal globalisation and capitalism themselves.

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  The Seductions of Quantification Rebuffed? The Curious Failure by the CESCR to Engage Water and Sanitation Data

  Margaret L. Satterthwaite

  Some years ago, scholars noticed that the human rights field was turning towards metrics and quantification, seeking tools that might move the rights endeavor beyond its reliance on stories of suffering and towards the production of knowledge inflected by science. Chief among the tools practitioners began to embrace were human rights indicators, here defined as metrics calibrated to make empirical measurements related to specific norms. Rights indicators were said to be useful in understanding the scope, dynamics and relationships among human rights violations through population-based, quantitative and systematic qualitative monitoring methods. Indicators were also seen to allow advocates to access and deploy the political and cultural force of numbers in a world where what is measured is what counts. They also presented the possibility of building human rights concerns into the very fabric of development, humanitarian practice and even security measures undertaken by states, inter-governmental organisations and other powerful actors. As Sally Merry explained in 2011, indicators were seen as ‘objective’, capable of ‘set[ting] clearer standards for compliance with a convention’ and more concrete goals for advocates. As Rosga and I explained in 2009, ‘the turn toward mechanics of measurement and notions of scientific objectivity may appear to offer a kind of authority that [human rights] bodies have never been able to achieve’ in the eyes of mistrusting governments. While this embrace of quantification was celebrated as an advance by many, critics—with Merry prominent among them—also registered strong concerns. Some of the negative impacts imputed to the use of indicators stemmed from risks inherent in quantitative ways of knowing. For example, while there were myriad methods for measuring—as well as a plethora of data on—some issues, in other places, there was a dearth of data on issues central to human rights. Further, the enduring and irresolvable problem of venal political manipulation of data was acknowledged, as well as the predatory or abusive methods sometimes used to gather data. Finally, the slippage between the concept one intended to measure and the choice of often-distant proxies was common but too often overlooked. Other unintended consequences related to the fact that the indicators phenomenon is an instance of power-through-knowledge, or ‘expert rule’, that empowered certain kinds of professional human rights expertise shared among an identifiable epistemic community while ousting others. This empowerment sometimes came at the expense of grassroots, ‘local’ or embedded forms of knowledge. The ‘deployment of statistical measures tends to replace political debate with technical expertise’, Merry wrote in 2011. In a piece published the same year, I explored similar dynamics in the use of rights-based indicators in crisis settings, concluding that indicators ended to ‘render technical’ very political debates over human rights and accountability. Merry wrote in 2016 that the ‘translation’ of rights into numbers ‘shifts human rights from a legal discourse with a broad and flexible vision of justice and rights to a technocratic one of economics and management’. This vison—which assumes the predictability of, control over and therefore possibility of rational management of social and political change—was a model for understanding the world that was seen as particularly ill-suited to human rights. The danger that states would seek to ‘game’ indicators instead of using them to measure rights enjoyment was also raised, suggesting an ever-increasing gap between the right being monitored and the metrics used to do so. This gap was especially problematic in relation to norms that had not yet been fully articulated by authoritative human rights bodies. These issues and others were explored in Merry’s ethnographic accounts of indicator-creation, as well as in my work, and the work of Merry’s collaborators, colleagues and those her work has influenced. A decade later, and in a datafied but increasingly ‘post-truth’ world, it seems useful to ask: have the concerns so eloquently articulated by scholars such as Sally Merry come to fruition in the human rights sphere? Has ‘“indicator culture”—marked by technical rationality, a pragmatic approach to measurement, and the magic of numbers’—taken root in the human rights field? More specifically, has the monitoring of rights become a system of technocratic audit? To answer these questions, this chapter focuses on the use of indicators to measure fulfilment of the rights to water and sanitation, two of the rights arguably most amenable to quantification. Using a dataset designed for this purpose, the chapter examines the use of indicators, benchmarks and quantitative data concerning water and sanitation by the UN Committee on Economic, Social and Cultural Rights (CESCR, the Committee), the body charged with monitoring compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR, the Covenant). The chapter also draws on a second dataset assembled for this purpose that assesses the use by human rights NGOs of data and indicators in the context of advocacy to advance the rights to water and sanitation. What these data reveal is surprising: despite the relative ease of quantification and the broad use of rights-relevant data in the water and sanitation sector, the UN human rights experts charged with monitoring compliance with the ICESCR are not engaging in data-inflected assessments of these rights in a systematic way. Instead, they sporadically refer to data but do not deploy it or engage in datafied discussions that could simplify the tracking of progress or retrogression over time. The final section of this chapter explores some reasons behind this seeming rejection of the seductions of quantification. The chapter concludes that the analyses advanced by Merry in the past decade nonetheless retain their relevance, and should be brought to bear on the more recent embrace of Big Data in the broader human rights field.

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  Quantitative Methods in Advocacy-Oriented Human Rights Research

  Margaret L. Satterthwaite and Daniel Kacinski

  Applied human rights researchers have turned to quantitative methods in recent years to systematise their knowledge and help answer questions about the scope, intensity, characteristics, responsibility for, and causes of human rights violations and their solutions. Using data of widely varying type and provenance, researchers have adopted a range of methods with different capabilities for a spectrum of purposes. These methods not only vary in their approach and capacity, but also relate to international human rights law in different ways. This chapter provides examples of how quantitative methods are used by researchers engaged in advocacy-oriented, real-world human rights work. It concludes that quantitative methods hold real promise for human rights research, but they also pose risks. In many human rights contexts, data problems - from missing and biased data to hidden or falsified data - are insurmountable. Yet in other cases, it is possible to use well-chosen methods, with great care. When they can be used ethically, quantitative methods should be considered alongside qualitative methods and mixed methods models. Only when the objectives, data and methods match, and when the perils can be obviated or limited to an acceptable level, should practitioners choose quantitative methods.

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  Basic and Relational Equality

  Jeremy Waldron

  Theorists of ‘relational equality’ have defined and elaborated an attractive ideal, which they present as an alternative understanding of equality, superior to distribution-focused theories such as luck-egalitarianism. In my book One Another’s Equals, I presented an understanding of what I called ‘basic equality’, which I also differentiated from distributive theories such as luck-egalitarianism. Does this mean basic equality and relational equality are the same? No. To mangle Euclid, things which are different from the same thing (distributive equality) are not necessarily equal to one another. This chapter explores the differences between basic and relational equality, and shows that ideals like relational equality, important though they are as social ideals, still require basic equality as a foundation.

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  On Duty

  Jeremy Waldron

  This chapter suggests an alternative way of understanding duty. Usually ‘duty’ is applied to some specific action strongly prescribed for an agent in some set of circumstances. In the alternative understanding proposed here, ‘duty’ is applied in the first instance to a relation between a person, P, and a situation, S. One talks of P’s duty when it is the responsibility of P to be alert to and, if need be, to do something about various possibilities inherent in S. One says: ‘S is P’s responsibility’ or—in the best-known phrasing—‘P has a duty of care in regard to S.’ The chapter explores this situational understanding to see what it tells us about the sort of thing a duty is: how it is structured, what counts as its determinate specification, and how it is related to cognate moral and legal ideas such as reason, ought, obligation, liability, and responsibility.

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  Shall the Justice of the Whole Earth Not Do Justice?: The Revolutionary Copernican Moment in the Relationship of God's Law, Humanity and Justice

  Joseph H. H. Weiler

  What are we to do when one is confronted with an order, or obligation from a higher authority which conflicts with our ethical and moral commitments? The paradigmatic illustration of such is a divine command where the order of God conflicts with one’s sense of justice. Taking the Biblical story of Sodom and Gomorrah and the confrontation between Abraham and the Almighty, this chapter argues that this incident constitutes the Copernican Revolution in understanding this dilemma.

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  Poverty and Civil and Political Rights

  Philip G. Alston

  Development and human rights frameworks often exclusively address the situation of people living in poverty as issues of material deprivation and a lack of resources, focusing solutions on welfare support, specific goods and services, better targeted development assistance, or the promotion of economic and social rights. As a result, neither the diagnosis of situations, nor the resulting policy recommendations, are tailored to address the distinctive ways in which people living in poverty are affected by police brutality, gender-based sexual violence, property theft, pre-trial detention, criminalizing homelessness, or electoral fraud and manipulation. This chapter argues that many civil and political rights violations are rooted in poverty, and that only by addressing that aspect can sustainable and adequate solutions be found. It delineates the disproportionate and different impact of civil and political rights violations on the poor, and the lack of focus on causal and contextual factors leads to the neglect of vital dimensions of the challenge.

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  Corporate Sanctions: Structuring Corporate Liability and Nontrial Resolutions to Deter Corruption

  Jennifer H. Arlen

  Corruption causes enormous harm to countries around the world. It nevertheless is prevalent because it benefits both parties to the corrupt transaction. Corrupt officials have gotten rich through corruption. Corporations benefit from the government largess they receive as a result; their employees profit when their corrupt actions to benefit their firms lead the firm to give them a bonus, a promotion, or enhances their job security. To safeguard their citizens and their economies, countries must deter corruption by companies. Currently, most countries are failing to do so effectively. First, most countries enable companies to profit from corruption by adopting overly restrictive rules governing corporate criminal liability, overly restrictive rules on non-trial resolutions, and inadequately funding corporate enforcement authorities. Sanctions imposed on companies also often are too low to ensure that companies do not profit from crime. Second, countries currently fail to effectively deter public officials and individual bribe payers through the threat of prosecution because their enforcement authorities rarely detect and sanction corporate misconduct. The resulting risk of sanction often is too low to be material, leading wrongdoers to ignore it altogether. To deter effectively, countries must ensure that companies do not profit from corruption and that individual bribe payers and recipients face a salient threat of being detected and convicted if they pay or accept bribes; the sanction must be sufficient to ensure they do not expect to benefit from corruption. To create this threat, countries must increase the funding and other resources provided to government investigators and enforcement authorities. In addition, they must hold companies criminally liable for all organizational misconduct by their employees, and adopt rules governing non-trial corporate criminal resolutions structured to induce them to detect and self-report misconduct, to fully investigate, and to fully cooperate by providing authorities evidence about misconduct and those responsible for it. Enforcement authorities also must be given authority to impose a monitor on companies whose senior officers and board have evidenced insufficient commitment to deterring misconduct. To detect reliably, countries also need to adopt appropriate whistleblower protection law and bounty provisions. Finally, they need to properly incentivize enforcement officials to pursue the individual wrongdoers responsible for the misconduct. This chapter explains why corporate liability needs to have these features, identifies needed reforms, and discusses corporate sanctions.

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  Evolution of Director Oversight Duties and Liability Under Caremark: Using Enhanced Information-Acquisition Duties in the Public Interest

  Jennifer H. Arlen

  Delaware law imposes four duties on directors to deter misconduct under the Caremark doctrine: (1) the duty not to knowingly commit misconduct or allow it to continue; (2) the duty to establish a system to deter, detect, and inform the board about misconduct; (3) the duty to assert effective oversight over the system; and (4) the duty to exercise effective oversight over detected misconduct. The effectiveness of the first duty, however, depends on whether the other three are effective in inducing the firm to detect and inform directors about detected misconduct, and on whether these duties are imposed to protect society as well as the firm. This chapter shows that Caremark’s traditional formulation is not effective because it gives directors full discretion to adopt systems that do not reliably detect misconduct or ensure they are informed about it. Recently, Delaware has imposed heightened duties on directors to ensure that they are informed about, and respond appropriately to, detected misconduct that is material to the firm or society. This expansion has the potential to enhance social welfare by inducing directors to deter corporate misconduct even when it benefits the firm.

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  The Sensibility of ‘Expressive Genericity’ and the Rise (and Potential Fall) of Rogers v. Grimaldi in American Trademark Law

  Barton C. Beebe

  This essay briefly considers the impact on American trademark law and commentary of the cultural sensibility represented by Rochelle Dreyfuss’s classic article Expressive Genericity: Trademarks as Language in the Pepsi Generation. The essay focuses in particular on how this cultural sensibility has supported the rise in American courts of the Rogers v. Grimaldi test for whether unauthorized expressive uses of trademarks infringe trademark rights.

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  The Law’s Effects on Public Participation

  Vicki L. Been and Anika Singh Lemar

  Laws govern public participation in land use decision-making. Concerns about public participation also inform the substantive development of land use and zoning law. Legislators and courts cite the importance (or, sometimes, the dysfunction) of public participation when crafting and applying rules about spot zoning, contract zoning, exclusionary zoning, and other components of the law of land use and zoning. In short, public participation is shaped by law and the law is shaped by concerns about public participation. Much, however, is underexplored about the law in this realm, even as the practical implications of “local zoning [as] a fundamentally participatory process” are, today, the subject of heated debate. Changing public participation practices must take place in the shadow of legal requirements—or must explicitly engage in a program of law reform in order to change those requirements. This chapter will first describe the legal requirements that govern public participation in land use and zoning processes. Next, it will consider how those laws affect land use and zoning decisions. It will then use attempts to make public participation work in the COVID era to understand how existing laws can encourage or constrain reforms. The chapter concludes by considering broader efforts to reform public participation laws. Throughout, the chapter raises research questions that relate to the operation of current law and efforts to reform those laws.

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  Canon and Fireworks: Reliance in the Restatements of Contracts and Reliance on Them

  Richard R. W. Brooks

  Two related claims are principally advanced in this chapter. First is that the Restatements of Contracts has achieved the status of a canon on which contemporary legal practice and education has come to rely. This claim falls under the heading reliance on the Restatements. The second claim, falling under the heading reliance in the Restatements, asserts that traditional notions of contractual liability based on reliance have been overshadowed by the Restatements’ canonization of both its bargain theory of consideration and its statements of promissory estoppel. Overshadowed but not excluded, traditional notions of reliance as grounds for contract enforcement and recognition can be found throughout the Restatements. By highlighting these grounds the chapter aims to recover or, perhaps better, reveal the traditional and continuing presence of reliance in the American common law of contract liability.

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  Global Impact on Domestic Investment Landscape

  Deborah K. Burand

  This current and important book discusses the need for investment that directly addresses social, economic, and racial inequities. Written by practice leaders, this guide provides an understanding of the latest U.S. private and public investment strategies and offers legal tools and checklists created by lawyers and practitioners serving both investors and investees. Social impact investing generates a positive social and environmental impact on the underserved. To provide valuable guidance, this resource educates lawyers and other professionals on community stakeholders' needs and lawyers' roles in impact investment deals, while providing practice tips for a range of legal issues in developing and executing diverse investment strategies. Leading experts discuss the current moment's charge to stem the economic losses in communities and build new, equitable economic systems. Comprehensive and accessible, this book: explores international lessons and models; integrates a brief history of the CED movement and the rise of impact investing; discusses current CED and impact investing tools that utilize public-private partnerships; discusses the purpose and structure of Social Impact Bonds (SIBs); highlights state and local government policies to support directing capital to meet needs of underserved communities; addresses the importance of community-driven financing tools, the role of individual investors in shaping strong local communities, and the SEC's laws and regulations governing community capital raising; illuminates the importance of people-powered local interventions; describes strategies for community ownership that shift governance and ownership to low-income communities and communities of color; provides concrete recommendations to investors and their lawyers to accelerate transformative finance work; and more!

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  The Role of International Organizations in the Production of Legal Metrics

  Kevin E. Davis

  In September 2021, the World Bank announced that it was discontinuing production of the Doing Business report, a well-​known compilation of worldwide data on business regulations and their enforcement. The terse statement that announced the decision began with the sentence: “Trust in the research of the World Bank Group is vital”. It went on to explain that the Doing Business report was being discontinued because the Bank’s leaders had uncovered instances in which Doing Business data and the process that produced them could not be trusted. The statement explained that after irregularities in published data came to light, the Bank initiated a series of reviews, audits, and investigations which revealed that senior Bank staff had altered data in the report without following proper procedures in order to please powerful member countries that had financial dealings with the Bank. The investigation tarnished the reputation of the Bank and the individuals involved. This remarkable series of events raises the question of whether the World Bank should ever have been trusted to produce the Doing Business report. It also raises the broader question of the extent to which any international organizations ought to be involved in the production of measures of the performance of legal institutions (‘legal metrics’). As we shall see, a variety of actors produce these kinds of performance measures, including private and domestic actors. It is not immediately obvious whether it is necessary or appropriate for international organizations to add themselves to the list of producers of legal metrics. This question becomes urgent when we consider both the potential value of legal metrics and the power that their producers can wield. The first three sections of this chapter examine in turn how legal metrics are produced, the reasons why they might be valuable, and the power that producers of legal metrics wield. Section 4 considers whether it is efficient for international organizations to produce legal metrics. Section 5 discusses whether it is legitimate for them to play such a role. Section 6 briefly discusses the special challenges posed by metrics that qualify as ‘indicators’. Section 7 suggests that the World Bank’s experience producing the Doing Business report illustrates both the opportunities and risks associated with producing legal metrics. The final section concludes.

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  Launching the Unified Patent Court: Lessons from the United States Court of Appeals for the Federal Circuit

  Rochelle C. Dreyfuss

  As of this writing (April 2022), the Unitary Patent System, which includes an EU-wide patent, a dedicated court system, and a Unified Patent Court Agreement (UPCA) on procedural and substantive aspects of patent law, is about to come into force. It is easy to understand why an EU Patent is considered desirable. The EU Trademark has proved successful in no small part because state-by-state protection of intellectual property becomes a costly proposition when rights are embedded in products that are sold and used throughout a single market. The demand for a Unified Patent Court (UPC) is somewhat harder to understand. After all, national courts have long entertained patent cases. However, once the Court of Justice of the European Union (CJEU) interpreted the Brussels Convention to prohibit cross-border consolidation of patent disputes, the creative community saw the need for a more efficient adjudicatory mechanism. It expected that specialization would have other advantages as well. As the establishment of intellectual property courts in over 90 countries suggests, specialization can be especially valuable when disputes involve technological complexities. Repeated exposure to such cases is thought to give judges the expertise they need to develop a uniform body of predictable high quality law. Nonetheless, the UPC has triggered considerable controversy. As other Chapters in this volume explain, many of the concerns stem from EU-specific issues, including the incompatibility of a separate court system with the constitutive law of the European Union; language and procedural differences among member states; the fragmentation of patent law under the confluence of the European Patent Convention (EPC), national law, international patent law, EU law, and the law of the UPCA; and the democratic deficit created when there is no central law-giving authority accountable to the people. However, the establishment of the UPC also raises another fundamental question: is there a danger that law interpreted by a specialized court, insulated from the jurisprudential mainstream, will be suboptimal from an economic or social perspective? On this point, the experience of the United States is instructive. Since 1982, patent determinations have been reviewed by a single court, the United States Court of Appeals for the Federal Circuit. The Federal Circuit is not specialized in that it has jurisdiction over a set of disputes that are unrelated to patent law. But it does hear all patent appeals and as with the UPC, the expectation was that it would develop expertise and improve the law. Yet in its early years, many concerns were expressed about the ways in which it handled its mandate. The Secretary of Health and Human Services criticized the court’s decisions for contributing to the high cost of health care; the Department of Justice and the Federal Trade Commission questioned the impact of its case law on competition, and the National Academies of Science were concerned about the effect of the Federal Circuit’s holdings on innovation. In addition, the court’s decisions were thought to galvanize patent trolls, non-patent-practicing entities (NPEs) whose sole business consists of enforcing patent claims. To be sure, there are important differences between the UPC and the Federal Circuit. The Federal Circuit is a single appellate court which hears appeals from trial courts of general jurisdiction; the UPC includes both courts of first instance and a Court of Appeal. The Federal Circuit has so-called “case jurisdiction,” and therefore reviews not only the trial courts’ application of the US Patent Act, but also the disposition of all other matters asserted by the parties, including, for example, claims sounding in copyright or antitrust (competition) law. De novo review is, however, limited to issues of law; on questions of fact, the Federal Circuit must defer to the findings at trial. In contrast, while the UPC’s competence is confined to issues regarding patents, the Court of Appeal can, in these patent cases, reconsider both questions of law and fact. Finally, Federal Circuit decisions are all reviewable in the United States Supreme Court and can, for the most part, be modified by congressional action. But because the UPC will apply patent law sourced in the EPC, UPCA, national law, and international agreements, only some decisions will be within the jurisdiction of the CJEU. By the same token, most UPC decisions cannot be easily overruled by legislative action in the EU. To some extent, the differences between the US and EU systems may allow the UPC judges to avoid the critiques leveled at the Federal Circuit. However, there are also differences that can exacerbate the problems associated with the Federal Circuit’s jurisprudence. In Part 1 on structure and Part 2 on substance, this Chapter explores the sources of the Federal Circuit’s perceived difficulties and evaluates the extent to which the UPC is likely to follow in its footsteps. In Part 3, it offers a few suggestions on how the EU system might learn from the US experience.