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Abstract:
In recent years, the practice of extraordinary rendition by the U.S. government has come in for strong critique by human rights advocates, the United Nations, and other governments. Despite the avalanche of protest, U.S. government officials and some scholars have defended rendition, relying on a number of legal arguments. These arguments do not explicitly support the practice of informal transfer to a risk of torture; instead, they imply that the practice is legal by pointing to what defenders claim are lacunae in the relevant legal frameworks. Where lacunae are found, the Administration suggests, prohibitions give way to permission: territories outside the United States are conceptualized as locations where the U.S. may act as it pleases; informal promises between countries replace the absolute prohibition of certain transfers; and the war paradigm is used to deprive individuals of the protection of the law. This Article examines these arguments in close detail, suggesting that they are not only incorrect; they also hide a dangerous shift in policy: a practice purportedly developed to uphold the rule of law against lawless terrorists - rendition to justice - has become a lawless practice aimed at perverting the rule of law in relation to terrorism - extraordinary rendition.

The first Section of the Article discusses the information that is publicly available about the practice of extraordinary rendition. It provides a snapshot of the procedure and its elements as reported by human rights organizations, European investigations, and the media.

The second Section examines the U.S. government's legal arguments related to extraordinary rendition. Not unlike its approach to the torture debate, where the Bush Administration has stated repeatedly that the United States ¿does not torture¿ while redefining the norms at issue, the Administration has not constructed legal arguments that explicitly defend extraordinary rendition. Instead, it has worked hard to clear a space for actions free of the legal constraints placed on it by human rights and humanitarian law. In constructing its arguments, the U.S. government has identified and exploited several unresolved dilemmas in human rights law: the challenge of extraterritoriality, the difficult relationship between substantive norms and procedural guarantees, and the indeterminate rule of lex specialis. While the Administration's official positions concerning these challenging areas are not new, the exploitation of the legal uncertainty involved is: as the practice of extraordinary rendition demonstrates, the Administration has constructed anti-terror techniques that are intentionally aimed at skirting the rule of law.

The final Section of the Article will suggest that the government's arguments - which purport to expose the limits of human rights law and thus reveal lacunae in that law - instead underline the importance of returning to basic principles when limits are in sight. The foundational rules of human rights and humanitarian law - the protection of human dignity and the principle of humanity - should guide interpretations as we make our way in the post-9/11 world.

Abstract:
Focusing on the exploitation of migrant domestic workers, this article develops and then uses the methodology of applied international intersectionality to analyze human rights treaty law. It argues that when intersectionality is used as an interpretive methodology instead of simply a critique, the resulting analysis allows for the identification of robust standards relating to individuals who otherwise appear to be unprotected by the human rights framework. Other scholars, writing in a critical mode, have demonstrated the ways in which the failure to use an intersectional approach leads to the erasure of experience by groups that suffer overlapping forms of discrimination, and have suggested that intersectionality should be used in the human rights context. Shifting the focus, this article argues - more affirmatively - that intersectionality can be applied as an interpretive methodology to existing international human rights standards to produce a wide variety of empowering norms that advocates can begin to use right away.

The paper begins by describing the major forces combining to create gendered labor migration flows. The next section presents the concept of applied international intersectionality, considers the issue of women's "vulnerability," and comments on the power of human rights law to reach "private," non-state conduct. The bulk of the article is devoted to demonstrating the benefits of applied international intersectionality by using the methodology to excavate human rights protections relevant to violations facing migrant domestic workers. The article concludes by emphasizing the need to both insist on enforcement of existing protections, and to remain attentive to emerging claims.

Human rights, gender, migration, intersectionality

Abstract:
Among the most notorious anti-terror techniques used by the U.S. government in the "War on Terror" are two shrouded in secrecy: extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States to countries such as Egypt, Syria, and Morocco, where torture is systematic. Slowly, information also emerged concerning the American use of secret "black sites" to hold suspected al-Qaeda leaders and their allies. While never denying that these practices were being used, U.S. government officials repeatedly offered a single justification for departing from both human rights protections and prisoner of war rules when apprehending such individuals: the United States was involved in a new, unprecedented type of war. The case of Khaled El-Masri brings these issues before a U.S court. In an apparent case of mistaken identity, a German man of Lebanese descent was abducted while on vacation in Macedonia, transferred to a secret U.S.-controlled prison in Afghanistan, and subjected to cruel, inhuman and degrading treatment over the course of five months. Released when then-National Security Advisor Condoleezza Rice discovered that he was being held by mistake, a stunned El-Masri made his way back to Germany. In December 2005, the ACLU filed suit on his behalf, alleging violations of due process under the Fifth Amendment of the U.S. Constitution, and human rights claims based on numerous human rights and humanitarian law treaties which are cognizable under the Alien Tort Statute. This Chapter, which appears in Human Rights Advocacy Stories, tells the story of the El Masri case from its inception to dismissal, and from U.S. court to the Inter-American Commission on Human Rights.

human rights, international law, national security, litigation

Abstract:
Debates over the best way to identify human rights violations, assess compliance with treaty obligations, and measure human rights progress over time have preoccupied scholars and practitioners for many years. These debates have been especially pressing in the field of economic, social, and cultural rights, where the need for new methodologies has been felt most urgently. Quantitative data has been forwarded as a central tool in the drive for better methods of assessment, monitoring, and advocacy. Among quantitative tools, human rights indicators have been identified as especially powerful. Rights indicators are understood to have a variety of advantages: they render complex data simple and easy to understand; they can be designed to demonstrate compliance with obligations, fulfillment of rights, and government efforts toward these goals; and they are capable of capturing progress over time and across countries.

This Article closely examines the use of indicators by U.N. bodies charged with monitoring State compliance with human rights treaties. The Article places these efforts to create human rights indicators in conversation with scholarship on audit and standardization from the social sciences. We conclude that while there are very real drawbacks involved in the indicators project, debates about indicators may provide advocates with new opportunities to use the language of science and objectivity as a powerful tool to hold governments to account. However, because human rights compliance indicators threaten to close space for democratic accountability and purport to turn an exercise of judgment into one of technical measurement, advocates of human rights would do well to remain vigilant to effects of the elisions at work in the indicators project. The conundrum of democratic accountability and the failure to clearly locate responsibility for judgment in international human rights assessment exercises are not products of the tools chosen to carry out those exercises, but are instead structural problems, foundational to international human rights law as it exists today. Thus, some of the core problems we argue are inherent in the indicators project would still be present even if quantitative indicators were banished from human rights assessment projects. Nonetheless, the use of quantitative indicators tends to disguise those problems as technical ones of measurement and data availability.

The Article unfolds as follows: in Section I, we explore some of the conditions leading to the increasing reliance on indicators for monitoring the fulfillment and/or enjoyment of international human rights, especially economic and social rights. Using the example of the International Covenant on Economic, Social and Cultural Rights, we consider the way in which that treaty's monitoring committee has shifted from attempting to create and directly apply indicators in the measurement of compliance with treaty obligations to calling on States to identify and implement their own indicators. In Section II, we discuss several of the problems integral to the use of indicators in human rights contexts and what those difficulties have in common with the wider turn to auditing practices in management and control contexts. In Section III, we examine the ongoing efforts of the human rights treaty bodies and the U.N. Office of the High Commissioner for Human Rights to create international indicators applicable to all States, and we assess that effort in light of the problems discussed in Section II, as well as considering issues of authority and judgment in human rights law. Section IV considers human rights indicators as a technology of global governance, warning that-if not carefully designed to do otherwise-human rights compliance indicators have a tendency to close off spaces for participation and democratic contestation.

human rights, international law, socio-legal studies, law and society

Abstract:
This article evaluates the potential role of the Inter-American human rights system in efforts to advance the rights of migrant domestic workers in the United States. For many years, the only significant power that migrant domestic workers seemed to possess was the ability to ruin the chances of high-level political appointees. Ironically, this power has come through their vulnerable position in the legal order of the United States. Migrant domestic workers suffer abuse based on both their migration status and their status as workers in the home, factors that exclude them from certain protections under U.S. law. In addition to these formal exclusions, migrant domestic workers often experience discrimination based on gender, race and ethnicity. Although these violations are the very kinds of exploitation that human rights law was created to prevent and remedy, advocates and scholars have not focused on using human rights to advance the rights of migrant domestic workers in the United States.

The article considers the causes for this failure, and argues that there are compelling reasons to use human rights law to advance migrant domestic workers' rights. First, U.S. actions and inactions can be scrutinized in certain international institutions charged with monitoring compliance with human rights law. Second, human rights law allows advocates to clearly articulate the obligations of the state to halt abuses that occur in the private realm. Finally, human rights law already binding on the United States can provide robust norms for migrant domestic workers fighting overlapping forms of discrimination that may not be easily challenged under U.S. law.

The paper demonstrates that the Inter-American human rights system - through its expansive norms, progressive interpretive practices, and venues for complaint and investigation - provides promising opportunities for U.S.-based advocates fighting the interlocking forms of vulnerability and discrimination that migrant domestic workers face.

Human rights, gender, migration, international law

Abstract:
This article combines health and water research results, evidence from confidential documents released under the Freedom of Information Act, legal analysis, and discussion of historical context to demonstrate that actions taken by the international community through the Inter-American Development Bank are directly related to a lack of access to clean water in Haiti. The article demonstrates that these actions constitute a clear violation of Haitians' right to water under both domestic and international law. The article exposes the United States government's role in blocking the disbursal of millions of dollars in international bank loans that would have had life-saving consequences for the Haitian people. The loans were derailed in 2001 by politically-motivated interventions on behalf of the US and other members of the international community in direct violation of the Inter-American Development Bank charter. To demonstrate the impact of these interventions, the article presents data gathered in a study that employed human rights and public health methodologies to assess the right to water in Haiti. The data reveal that Haitians experience obstacles concerning every aspect of the right to water: difficulties with water availability, limited physical and economic accessibility, and poor water quality. The article provides a framework of concrete duties and obligations that should be followed by all actors involved in Haiti in order to realize Haitians' human right to water. In response to the undeniable link between the international community's political interference and the intolerably poor state of potable water in Haiti, the article concludes with a recommendation that all actors in Haiti follow a rights-based approach to the development and implementation of water projects in Haiti.

human rights, international law, public health

Abstract:
The practice of international rendition - the transfer of an individual across borders without recourse to extradition or deportation proceedings - is not new. Indeed, the practice has been used by governments for more than a century. Famous renditions include that of Nazi war criminal Adolf Eichmann from Argentina to Israel, and terrorist Carlos "the Jackal" (Ilich Ramirez Sanchez) from Sudan to France. Such renditions have been celebrated as crucial in the fight against impunity for grave crimes.

In the United States, "rendition to justice," in which a suspect is apprehended and transferred to the United States for criminal prosecution, was approved and formalized by President Reagan and expanded by President George H.W. Bush. U.S. courts approved of the practice in a series of cases that culminated in the 1992 Supreme Court case U.S. v. Alvarez-Machain. President Clinton altered the practice by initiating the transfer of suspects from one country to another, placing them into foreign legal processes rather than bringing them into the U.S. legal system. Since 9/11, the administration of President George W. Bush has been citicized for the new practice of "extraordinary rendition" - the transfer of suspects to countries known for the systematic use of torture. Secretary of State Condoleezza Rice and CIA Director Michael Hayden have defended the practice, relying on justifications developed to support "rendition to justice" and arguing that the practice is legal. Despite these justifications, international human rights bodies and intergovernmental bodies including the European Union and the United Nations have determined that the extraordinary form of rendition is unlawful under human rights law. Although individuals have faced significant legal hurdles in fighting the practice in the U.S. legal system (most prominently in the form of the state secrets doctrine), there is little doubt among international law experts that extraordinary rendition is prohibited.

Despite this clear consensus, there is no similar agreement concerning the practice of informal transfers - renditions of the non-"extraordinary" kind - more generally. In part this lack of consensus comes from the varied contexts in which informal transfers occur: one state may seek custody of a suspect for a regular criminal trial, while another seeks an individual solely for intelligence-gathering purposes, and yet another seeks to transfer an individual to an international tribunal despite its failure to enact domestic legislation regulating the hand-over. To provide a firm grounding for legal analysis, the first section of this article develops a taxonomy of rendition and examines the range of justifications for informal transfers. Examining the authority of states and international tribunals to prescribe and enforce criminal law across borders, the article identifies instances in which informal transfers may be the only acceptable policy option. The article concedes that such renditions may, in a limited set of circumstances where states harbor suspects or refuse to engage in international cooperation, be necessary to ensure that fugitives do not enjoy impunity. This is especially the case in the age of terrorism and grave international crimes such as genocide.

The second section of the article examines the handful of rendition cases decided by international criminal tribunals and regional human rights courts, as well as comparative jurisprudence from Canada, Israel, South Africa, and the United Kingdom, as well as the international legal literature on the topic. The article uncovers a gap in the legal reasoning behind rendition: the human rights of the individual transferred are rarely analyzed; instead, questions of sovereignty and jurisdiction dominate.

The third section of the article seeks to fill the gap in the literature by identifying the basic protections that must be extended to all individuals facing informal transfer - no matter their destination - and providing the basis of those protections in international law. Drawing on emerging norms as well as existing rules governing formal transfers accomplished through extradition and deportation, the article sets out basic substantive and procedural rights that should be afforded to all individuals facing transfer.

The final section of the paper considers practical solutions to the argument that affording transferees procedural rights is impossible in the context of the "War on Terror." Examinnig the U.S. context, this section presents an analysis of the recent Supreme Court decisions in Boumediene v. Bush and Munaf v. Geren/Geren v. Omar to determine what procedural vehicles may exist under U.S. law for individuals facing transfer who seek to enforce the rights guaranteed to them by international law.

extraordinary rendition, rendition, human rights, national security, terrorism