Digital Commons Network^™

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

James T Gathii

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

In The Right Direction, Family Diversity In The Inter-American System Of Human Rights, Macarena Sáez

Macarena Saez

Youth Activism, Art And Transitional Artist: Emerging Spaces Of Memory After The Jasmin Revolution, Arnaud Kurze

Arnaud Kurze

This project explores the creation of alternative transitional justice spaces in post-conflict contexts, particularly concentrating on the role of art and the impact of social movements to address human rights abuses. Drawing from post-authoritarian Tunisia, it scrutinizes the work of contemporary youth activists and artists to deal with the past and foster sociopolitical change. Although these vanguard protesters provoked the overthrow of President Zine El Abidine Ben Ali in 2011, the power vacuum was quickly filled by old elites. The exclusion of young revolutionaries from political decision-making led to unprecedented forms of mobilization to account for repression and injustice under …

The "Common Word," Development, And Human Rights: African And Catholic Perspectives, Joseph M. Isanga

Joseph Isanga

Africa is the most conflict-ridden region of the world and has been since the end of the Cold War. The Continent's performance in both development and human rights continues to lag behind other regions in the world. Such condi­tions can cause religious differences to escalate into conflict, particularly where religious polarity is susceptible to being exploited. The sheer scale of such con­flicts underscores the urgency and significance of interreligious engagement and dialogue: 'Quantitative and qualitative analysis based on a ... database including 28 violent conflicts show that religion plays a role more frequently than is usually assumed.' This ambivalent character …

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa has been painfully slow, …

Foundations Of Human Rights And Development: A Critique Of African Human Rights Instruments, Joseph M. Isanga

Joseph Isanga

This Article argues that, of the contemporary human rights theories, sustainable African development necessitates grounding human rights in complete alignment with the broader perspective of natural law theory, as opposed to narrower perspectives such as utilitarian, positivist, and kindred theories.3 Part I presents pertinent philosophical theories and modes of analysis in conjunction with general international legal jurisprudence. Part II then uses this philosophical analysis to examine specific African human rights instruments and jurisprudence. Part III considers African traditional human rights conceptions. Part IV recommends a natural law foundation for African development. [excerpt]

Rethinking The "Less As More" Thesis: Supranational Litigation Of Economic, Social And Cultural Rights In The Americas, Tara J. Melish

Tara Melish

In their 2005 law review article Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, James Cavallaro and Emily Schaffer argue for a "rethinking" of strategies to advance economic, social and cultural rights in the Americas. They posit that to achieve higher rates of real-world protection for such rights, social rights advocates should do two things: first, bring less litigation and, second, frame any marginal litigation that is pursued as violations of classic civil and political rights. According to the authors, this recommended course will increase the "legitimacy" of the litigation and lead to higher …

Professor Breaks Ground With Journal On Sexual Violence And Exploitation, Joseph Essig, Donna M. Hughes Dr.

Donna M. Hughes

New Uri Journal Explores Sexual Exploitation, G. Wayne Miller, Donna M. Hughes Dr.

Donna M. Hughes

Uri Professor Launches Online Journal About Sexual Exploitation, Violence, Slavery, Donna M. Hughes Dr.

Donna M. Hughes

Dignity, Vol 1, Issue 1, 2016, Donna M. Hughes Dr.

Donna M. Hughes

Embodying The Population: Five Decades Of Immigrant/Integration Policy In Sweden, Leila Brännström

Leila Brännström

Participatory Fact-Finding: Developing New Directions For Human Rights Investigations Through New Technologies, Molly Land

Molly K. Land

This chapter considers the way in which broader participation in human rights fact-finding, enabled by the introduction of new technologies, will change the nature of fact-finding itself. Using the example of a participatory mapping project called Map Kibera, the chapter argues that new technologies will change human rights fact-finding by providing opportunities for ordinary individuals to investigate the human rights issues that affect them. Those who were formerly the ‘subjects’ of human rights investigations now have the potential to be agents in their own right. This ‘participatory fact-finding’ may not be as effective in ‘naming and shaming’ states and companies …

Culture, Nationhood, And The Human Rights Ideal, Berta E. Hernández-Truyol, Sharon E. Rush

Berta E. Hernández-Truyol

This paper was written as a part of a Symposium on Culture, Nation, and LatCrit (Latina/o Communities and Critical Race) Theory and focuses on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a methodology to analyze and detect the exclusion or silencing of voices. A paradigm is developed that, by internationalizing voice, serves as a useful tool to explore power-based silencing. In Part III, the article illustrates how the proposed paradigm can focus the …

Human Rights Frames In Ip Contests, Molly Land

Molly K. Land

No abstract provided.

Liberty, Equality, Diversity: States, Cultures And International Law, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter explores how culture is addressed by contemporary international law, with particular reference to human rights law norms. The first part covering freedom focuses on the rise of the modern state and its conscious reimagining of ties with its citizens through the promotion of tolerance and a secular, national identity. The shift is explored through the prisms of the freedom of religion, the right to participate in (national) cultural life, and the limitations on freedom of expression including prohibition of hate speech and domestic blasphemy laws. The second part on equality centres on the relationship between the state, the …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Human Rights, Regulation, And National Security, Katina Michael, Simon Bronitt

Professor Katina Michael

Law disciplines technology, though it does so in a partial and incomplete way as reflected in the old adage that technology outstrips the capacity of law to regulate it. The rise of new technologies poses a significant threat to human rights – the pervasive use of CCTV (and now mobile CCTV), telecommunications interception, and low-cost audio-visual recording and tracking devices (some of these discreetly wearable), extend the power of the state and corporations significantly to intrude into the lives of citizens.

#Ict4hr—Information And Communication Technologies For Human Rights, Molly Land, Patrick Meier, Mark Belinsky, Emily Jacobi

Molly K. Land

No abstract provided.

Criminalizing The Undocumented: Ironic Boundaries Of The Post-September 11th ‘Pale Of Law.’, Daniel Kanstroom

Daniel Kanstroom

The general hypothesis put forth in this Article is that well-accepted historical matrices are increasingly inadequate to address the complex issues raised by various U.S. government practices in the so-called “war on terrorism.” The Article describes certain stresses that have recently built upon two major legal dichotomies: the citizen/non-citizen and criminal/civil lines. Professor Kanstroom reviews the use of the citizen/non-citizen dichotomies as part of the post-September 11th enforcement regime and considers the increasing convergence between the immigration and criminal justice systems. Professor Kanstroom concludes by suggesting the potential emergence of a disturbing new legal system, which contains the worst features …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

Legal Outlier, Again? U.S. Felon Suffrage: Comparative And International Human Rights Perspectives, Reuven (Ruvi) Ziegler

Dr. Reuven (Ruvi) Ziegler

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and international human rights perspectives and aims to make two main contributions to the American and global discourse. After an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European …

Counter Terrorism And Access To Justice: Public Policy Divided?, Mark Rix

Mark Rix

This paper will consider the manner in which Australia’s counter-terrorism strategy has been operationalised, highlighting the implications of its strategy for access to justice. Access to justice, encompassing the ability of individuals, including persons suspected of terrorism offences and non-suspects, effectively to exercise their human and legal rights, can be an important curb on state power. But, in another equally important sense, providing individuals with access to justice also protects national security by helping to ensure that the law enforcement and security agencies focus their efforts on genuine terror suspects rather than wasting their resources on investigating and prosecuting genuine …

Emerging Law Addressing Climate Change And Water, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

The World Economic Forum recognizes that while restrictions on energy affect water systems and vice versa, energy and water policy are rarely coordinated. The International Panel on Climate Change predicts that wet places will become wetter and dry places will become dryer. Transboundary water, energy and climate coordination can occur through international consensus building.

Human Rights And Genocide: The Work Of Lauterpacht And Lemkin In Modern International Law, Part I, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 40s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims.

The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, …

Peer Producing Human Rights, Molly Land

Molly K. Land

Can there be a Wikipedia for human rights? The growth of collaborative technologies has spurred the development of projects such as Wikipedia, in which large groups of volunteers contribute to production in a decentralized and open format. The author analyzes how these methods of peer-based production can be applied to advance international human rights as well as the limitations of such a model in this field. An underlying characteristic of peer-based production, amateurism, increases capacity and participation. However, the involvement of ordinary individuals in the production of human rights reporting is also its greatest disadvantage, since human rights reports generated …

Protecting Rights Online, Molly Land

Molly K. Land

Although the human rights and access to knowledge (A2K) movements share many of the same goals, their legal and regulatory agendas have little in common. While state censorship online is a central concern for human rights advocates, this issue has been largely ignored by the A2K movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture. These disparate agendas reflect fundamentally different views about what states should regulate and the role of international institutions. Overcoming this divide is critical to ensuring the movements can draw on their respective strengths to …

Human And Fundamental Rights And Duties In Portuguese Constitution. Some Reflections, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The Portuguese Constitution (1976) came after a period of 48 years of authoritarianism and a closed society, in which some happy few enjoyed great privileges while the great majority of people were charged with heavy duties So, by a very understandable "law of human nature", the constituent law givers could not reasonably impose constitutionally many obligations, in an autonomous way. As rights and duties are the twin sides of the same coin, the juridical formulation under the sign of rights also implies obligations, related to those same rights. This is kinder and more pleasant to do by a liberating Constitution...