Berta Hernandez - Academia.edu (original) (raw)
Papers by Berta Hernandez
Proceedings of the ... Annual Meeting, 1993
Journal of Civil Rights and Economic Development, 1994
Proceedings of the ASIL Annual Meeting, 1992
New York University Press eBooks, Dec 31, 2020
Cambridge University Press eBooks, Oct 31, 2021
Social Science Research Network, 2018
I. INTRODUCTION Tensions in civil society based on religion are nothing new. The world is home to... more I. INTRODUCTION Tensions in civil society based on religion are nothing new. The world is home to many religions and religious traditions that differ in culture and rituals, beliefs and commands but that promote peace, harmony, and coexistence. 1 Yet, religion often becomes a deep and delicate source of conflict, fueled by every religion's contention that its tenets contain the one and only truth. The resulting impetus is to impose that truth on non-believers to ensure their salvation. Peace, harmony, and coexistence cede to the one truth. Beyond discrimination between/among religious traditions, religious liberty also has been a location of tension with the rights to non-discrimination and equality. For example, religion was used to justify (and to oppose) the inhuman and inhumane institution of slavery, 2 and to justify sex discrimination. 3 Religious justification to discriminate on the basis of race extended to penumbras of slavery, including the contemporary issue of who is entitled to marry-slaves were not allowed to marry 4 and anti-miscegenation laws existed in the United States (U.S.) until 1967. 5 Other states have regulated marriage throughout history based on religious, political and social factors. 6 From 1723 to 1833, French laws prohibited marriages between whites and non-European Court of Human Rights (ECtHR) and the jurisprudence of the Inter-American Court of Human Rights. 11 The third framework, presented in Part III, is the national framework. A. International Framework The international framework includes myriad documents that protect a person against discrimination based on religion as well as based on sex, a mark of identity that the international human rights committee has pronounced includes sexuality. 12 The UN Charter, 13 the Universal Declaration of Human Rights (UDHR), 14 the International Covenant on Civil and Political Rights (ICCPR), 15 and the International Covenant on Economic, Social and Cultural Rights (ICESR) 16-all core human rights documents-require equality and prohibit discrimination based on sex and on religion. In addition to non-discrimination, international law ensures persons a number of rights important to LGBT well-being, particularly in the context of a clash of rights. The ICCPR prohibits torture and ill-treatment as well as arbitrary arrest and detention. The covenant protects the rights to life; personal security; privacy; freedom of expression; freedom of thought, conscience, and religion; free association; and peaceful assembly-rights often denied to LGBT persons. 17 Significantly, Article 18, which expressly protects religion, explicitly provides that "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." 18 This provision offers the foundation for a balancing approach to resolve conflicts that may emerge. The ICESR protects economic, social and cultural rights important to the realization of full personhood by LGBT persons, such as the rights to work, equal working conditions, social
New York University Press eBooks, Dec 31, 2020
Social Science Research Network, 1999
Social Science Research Network, 2006
I wish to thank Cindy Zimmerman for her editorial and word processing assistance.
Recent studies show that global attitudes toward LGBTQ persons, including youth, have improved. N... more Recent studies show that global attitudes toward LGBTQ persons, including youth, have improved. Nonetheless, discrimination, rejection, and violence in law and policy still prevail. Sadly for LGBTQ youth, these realities occur in the family, schools, places of worship, and society. International human rights law, especially the best interests of the child (BIOC) mandate of the Convention on the Rights of the Child (CRC), provides LGBTQ youth protections against attitudes and aggressions they confront in these venues simply because of their sexuality or gender identity. This mandate can be read to protect/address LGBTQ youth’s interests in contexts of conflicts at school, at home, or at places of worship by specifying that states parties need to ensure that the institutions, services, and facilities responsible for caring for or protecting children conform to standards established by competent authorities, particularly in the areas of health and safety and in the number and suitability of their staff, as well as in terms of competent supervision. The CRC also protects all youth, including LGBTQ youth, from discrimination by association, thus protecting the children of LGBTQ parents, and it affords all youth freedom of expression, thought, conscience, religion, association, and peaceful gathering. This chapter puts the current legal protections for LGBTQ youth in the context of their current realities and proposes a dramatic shift in the child rights paradigm to ensure that LGBTQ youth achieve full personhood and dignity.
Florida Journal of International Law, 2017
Law School in 1948. Being part of this historic event is particularly significant in that context... more Law School in 1948. Being part of this historic event is particularly significant in that context. Additionally, I would like to thank Dean Laura A. Rosenbury for her support of this conference and my participation. I would also like to extend my gratitude to Dean
New York University Press eBooks, Dec 31, 2020
WALLACE, INTERNATIONAL LAw 175 (1986) ("Human rights ... are regarded as those fundamental and in... more WALLACE, INTERNATIONAL LAw 175 (1986) ("Human rights ... are regarded as those fundamental and inalienable rights which are essential for life as a human being."). 11. See generally supra note 10. 12. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 701 cmt. b (1987).
Social Science Research Network, 2008
Social Science Research Network, 2005
describing how European Union citizenship can be viewed as a form of "supranationalism", and noti... more describing how European Union citizenship can be viewed as a form of "supranationalism", and noting that "there is another more tantalizing and radical way of understanding the [EU's citizenship] provision, namely as the very conceptual decoupling of nationality from citizenship.").
Brill | Nijhoff eBooks, 2015
Social Science Research Network, 2018
And To Misapply Even The Best of Laws. *** 3 REPORT SUBMITTED BY THE SUBCOMM. OF NARCOTICS, TERRO... more And To Misapply Even The Best of Laws. *** 3 REPORT SUBMITTED BY THE SUBCOMM. OF NARCOTICS, TERRORISM AND INTERNATIONAL OPERATIONS TO THE SENATE FOREIGN RELATIONS COMM., 101st Cong., 2d Sess. 4 Id.; see also Address by Attorney General Richard Thornborough to the American Bankers Association (October 26, 1989) (noting that the annual gross income from drug sales in the United States is estimated at over $100 billion). 5 See, e.g., United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. El CONF. 82/15 and rev. 1, adopted by consensus Dec. 19, 1988; reprinted in 28 I.L.M. 493 (1989) [hereinafter UN Drug Convention]; See also infra notes 280-296 and accompanying text (explaining purposes of UN Drug Convention and listing member states) and infra notes 219-228 and accompanying text (on bilateral mutual legal assistance treaties entered into by United States and various countries); see generally,
International legal materials, Apr 1, 2019
18MC731-18-US-en.pdf.
Social Science Research Network, 2014
Proceedings of the ... Annual Meeting, 1993
Journal of Civil Rights and Economic Development, 1994
Proceedings of the ASIL Annual Meeting, 1992
New York University Press eBooks, Dec 31, 2020
Cambridge University Press eBooks, Oct 31, 2021
Social Science Research Network, 2018
I. INTRODUCTION Tensions in civil society based on religion are nothing new. The world is home to... more I. INTRODUCTION Tensions in civil society based on religion are nothing new. The world is home to many religions and religious traditions that differ in culture and rituals, beliefs and commands but that promote peace, harmony, and coexistence. 1 Yet, religion often becomes a deep and delicate source of conflict, fueled by every religion's contention that its tenets contain the one and only truth. The resulting impetus is to impose that truth on non-believers to ensure their salvation. Peace, harmony, and coexistence cede to the one truth. Beyond discrimination between/among religious traditions, religious liberty also has been a location of tension with the rights to non-discrimination and equality. For example, religion was used to justify (and to oppose) the inhuman and inhumane institution of slavery, 2 and to justify sex discrimination. 3 Religious justification to discriminate on the basis of race extended to penumbras of slavery, including the contemporary issue of who is entitled to marry-slaves were not allowed to marry 4 and anti-miscegenation laws existed in the United States (U.S.) until 1967. 5 Other states have regulated marriage throughout history based on religious, political and social factors. 6 From 1723 to 1833, French laws prohibited marriages between whites and non-European Court of Human Rights (ECtHR) and the jurisprudence of the Inter-American Court of Human Rights. 11 The third framework, presented in Part III, is the national framework. A. International Framework The international framework includes myriad documents that protect a person against discrimination based on religion as well as based on sex, a mark of identity that the international human rights committee has pronounced includes sexuality. 12 The UN Charter, 13 the Universal Declaration of Human Rights (UDHR), 14 the International Covenant on Civil and Political Rights (ICCPR), 15 and the International Covenant on Economic, Social and Cultural Rights (ICESR) 16-all core human rights documents-require equality and prohibit discrimination based on sex and on religion. In addition to non-discrimination, international law ensures persons a number of rights important to LGBT well-being, particularly in the context of a clash of rights. The ICCPR prohibits torture and ill-treatment as well as arbitrary arrest and detention. The covenant protects the rights to life; personal security; privacy; freedom of expression; freedom of thought, conscience, and religion; free association; and peaceful assembly-rights often denied to LGBT persons. 17 Significantly, Article 18, which expressly protects religion, explicitly provides that "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." 18 This provision offers the foundation for a balancing approach to resolve conflicts that may emerge. The ICESR protects economic, social and cultural rights important to the realization of full personhood by LGBT persons, such as the rights to work, equal working conditions, social
New York University Press eBooks, Dec 31, 2020
Social Science Research Network, 1999
Social Science Research Network, 2006
I wish to thank Cindy Zimmerman for her editorial and word processing assistance.
Recent studies show that global attitudes toward LGBTQ persons, including youth, have improved. N... more Recent studies show that global attitudes toward LGBTQ persons, including youth, have improved. Nonetheless, discrimination, rejection, and violence in law and policy still prevail. Sadly for LGBTQ youth, these realities occur in the family, schools, places of worship, and society. International human rights law, especially the best interests of the child (BIOC) mandate of the Convention on the Rights of the Child (CRC), provides LGBTQ youth protections against attitudes and aggressions they confront in these venues simply because of their sexuality or gender identity. This mandate can be read to protect/address LGBTQ youth’s interests in contexts of conflicts at school, at home, or at places of worship by specifying that states parties need to ensure that the institutions, services, and facilities responsible for caring for or protecting children conform to standards established by competent authorities, particularly in the areas of health and safety and in the number and suitability of their staff, as well as in terms of competent supervision. The CRC also protects all youth, including LGBTQ youth, from discrimination by association, thus protecting the children of LGBTQ parents, and it affords all youth freedom of expression, thought, conscience, religion, association, and peaceful gathering. This chapter puts the current legal protections for LGBTQ youth in the context of their current realities and proposes a dramatic shift in the child rights paradigm to ensure that LGBTQ youth achieve full personhood and dignity.
Florida Journal of International Law, 2017
Law School in 1948. Being part of this historic event is particularly significant in that context... more Law School in 1948. Being part of this historic event is particularly significant in that context. Additionally, I would like to thank Dean Laura A. Rosenbury for her support of this conference and my participation. I would also like to extend my gratitude to Dean
New York University Press eBooks, Dec 31, 2020
WALLACE, INTERNATIONAL LAw 175 (1986) ("Human rights ... are regarded as those fundamental and in... more WALLACE, INTERNATIONAL LAw 175 (1986) ("Human rights ... are regarded as those fundamental and inalienable rights which are essential for life as a human being."). 11. See generally supra note 10. 12. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 701 cmt. b (1987).
Social Science Research Network, 2008
Social Science Research Network, 2005
describing how European Union citizenship can be viewed as a form of "supranationalism", and noti... more describing how European Union citizenship can be viewed as a form of "supranationalism", and noting that "there is another more tantalizing and radical way of understanding the [EU's citizenship] provision, namely as the very conceptual decoupling of nationality from citizenship.").
Brill | Nijhoff eBooks, 2015
Social Science Research Network, 2018
And To Misapply Even The Best of Laws. *** 3 REPORT SUBMITTED BY THE SUBCOMM. OF NARCOTICS, TERRO... more And To Misapply Even The Best of Laws. *** 3 REPORT SUBMITTED BY THE SUBCOMM. OF NARCOTICS, TERRORISM AND INTERNATIONAL OPERATIONS TO THE SENATE FOREIGN RELATIONS COMM., 101st Cong., 2d Sess. 4 Id.; see also Address by Attorney General Richard Thornborough to the American Bankers Association (October 26, 1989) (noting that the annual gross income from drug sales in the United States is estimated at over $100 billion). 5 See, e.g., United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. El CONF. 82/15 and rev. 1, adopted by consensus Dec. 19, 1988; reprinted in 28 I.L.M. 493 (1989) [hereinafter UN Drug Convention]; See also infra notes 280-296 and accompanying text (explaining purposes of UN Drug Convention and listing member states) and infra notes 219-228 and accompanying text (on bilateral mutual legal assistance treaties entered into by United States and various countries); see generally,
International legal materials, Apr 1, 2019
18MC731-18-US-en.pdf.
Social Science Research Network, 2014