Workers without rights as citizens at the margins

This article presents a normative account of citizenship which requires respect for labour rights, as much as it requires respect for other human rights. The exclusion of certain categories of workers, such as domestic workers, from these rights is wrong. This article presents domestic workers as marginal citizens who are unfairly deprived of certain labour rights in national legal orders. It also shows that international human rights law counteracts the marginal legal status of this group of workers. By being attached to everyone simply by virtue of being human, irrespective of nationality, human rights can complement citizenship rights when both are viewed as normative standards. The example of domestic work as it has been approached in international human rights law in recent years shows that certain rights of workers are universal. Their enjoyment cannot depend on citizenship as legal status or on regular residency. The enjoyment of labour rights as human rights depends, and should only depend, on the status of someone as a human being who is also a worker.     

Children's Exposure to Domestic Violence: Holding Men to Account

The issue of domestic violence has gained greater recognition within public policy in the United Kingdom over the past decade. There is a recognition that up to one million children may have been exposed to violence between the adults with whom they live. This has consequences for the child in both the short and long term in terms of social and emotional adjustment. However, most male perpetrators of domestic violence are never held to account through the criminal justice system and therefore the child protection system is the safety net for these children. This though can result in a response that is premised on women's responsibility to protect their child from experiencing harm, typically by either leaving or forcing her partner to leave. Child welfare professionals do not engage with the men who are the source of the problem, rather women are held accountable for allowing their children and themselves to be in this situation. In this article this issue is discussed and proposals offered to improve this situation through empowering women, holding men to account for their behaviour whilst also recognising their position as fathers.     

Male Perpetrators of Domestic Violence: How Should We Hold Them to Account?

Domestic violence is now widely acknowledged as being a significant social, health and legal issue. At both a national and transnational level governments have sought to develop strategies built upon prevention, support for victims and holding perpetrators to account through criminal justice sanctions. However, the current paradigm that informs the policy response to most perpetrators of domestic violence has failed to deliver the outcomes required, in terms of a reduction in levels of recidivism or the improved safety of women and children. It is argued that holding men to account through external controls has failed and that interventions should support men to take responsibility for their own behaviour.     

Domestic law and human rights treaty commitments: The Convention against Torture

How human rights treaties will be incorporated and applied domestically must affect how eager states will be to ratify those treaties. This article focuses on two characteristics of domestic legal systems that shape the relationship between international law and domestic law: whether treaties are directly incorporated into domestic law and whether treaties can override ordinary statute. The analysis probes two arguments as to why domestic legal institutions influence ratification decisions, one emphasizing the potential costs associated with ratification and the other emphasizing congruence between domestic values and treaty norms. Survival analysis of ratification of the Convention against Torture reveals that both judicial independence and making treaties equal or superior to statute increase the likelihood of ratification, which is consistent with the norm-congruence thesis. The results suggest new avenues for investigating the relationships between human rights treaties and domestic legal institutions.     

Transitional Justice in Peacebuilding: Dynamics of Contestation in the DRC

ABSTRACT

This article examines the place of transitional justice in peacebuilding by exploring how domestic and international actors frame this relationship and how this, in turn, moulds dynamics of contestation around transitional justice. In the transitional justice literature, contestation is usually framed around an international–domestic dichotomy: transitional justice agendas promoted by external actors confront strategies of instrumental adaptation of transitional justice by domestic elites and the adoption of alternative transitional justice approaches by local actors. Based on an analysis of transitional justice policy-making in the Democratic Republic of the Congo (DRC), this paper proposes that a more multifaceted reading of contestation to transitional justice is needed. In the DRC, both external and domestic actors variously acted as transitional justice promoters and resisters, and their positioning on transitional justice was strongly conditioned by their broader understandings of the nature of the conflict and transitional justice’s role in peacebuilding. It is therefore suggested that contestation of transitional justice does not necessarily reflect a rejection of international approaches to justice, but instead more broadly expresses a lack of agreement on what transitional justice is and what its goals are. The article thus contributes to a broader interrogation of how discourses about the meaning of transitional justice are constructed in practice.     

Architectures of intergenerational justice: Human dignity,international law,and duties to future generations

This article draws attention to the constitutive requirements of intergenerational justice and exposes the limitations of regulative arguments based on international human rights law. Intergenerational justice demands constraining the regulative freedom of the international community, and it is tempting to assume that adequate constraints are already contained within existing treaties including international human rights treaties. In fact, intergenerational justice demands bespoke constitutional norms at the international level, and it demands entrenching constitutional norms. International human rights law per se implies neither of these constitutive propositions and both are problematic in light of the present structure of international law. Nevertheless, a combination of arguments concerning intergenerational justice and the systemic implications of human dignity yield a more constitutive account of human rights and therefore an internal critique of the overall architecture of international law.     

‘Domestic transnationalism’: legal advocacy for Mexican migrant workers' rights in Canada

Every year thousands of Mexicans travel to Canada to work in Canadian fields and greenhouses under the Mexico-Canada Seasonal Agricultural Worker Program. While the programme is often praised, it has also been the subject of persistent criticism about its failure to meet certain human rights standards. In this article, we examine the legal strategies civil society advocates of migrant workers have adopted to promote migrant workers' rights in Canada. Specifically, we examine legal struggles undertaken by the United Food and Commercial Workers union to challenge Ontario government legislation that does not permit collective bargaining by farmworkers in the province. We argue that this case demonstrates that despite the fact that many of the workers involved are transnationalized, appeals to international bodies or to international human rights standards have been of limited utility in promoting their rights. Despite frequent arguments about the increased relevance of international human rights and citizenship norms and transnational human rights advocacy, in this case the national and sub-national scales remain predominant. The result, we argue, is a form of ‘domestic transnationalism’, in which domestic political actors engage in advocacy within domestic legal institutions to promote the rights of a transnational mobile labour force.     

Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence

¹Despite the proliferation of trauma and memory research inrecent years, we know very little about the contribution oftransitional justice mechanisms to psychological healing andsocietal reconciliation in the aftermath of genocide, armedconflict and politicized violence. Many scholars in this areahave argued that the disclosure of traumatic experiences isbeneficial to the psychological recovery process for survivorsof gross human rights violations. This article critically examinesthis therapeutic assumption within a transitional justice paradigm.The article explores the potentials and limitations of internationalwar crimes trials for victims of wartime sexual violence, focusingspecifically on the International Criminal Tribunal for theformer Yugoslavia (ICTY). The article provides a theoreticalframework for analyzing the significance of testimony at internationalwar crimes trials and raises some critical questions relatedto the psychological impact of trials. It is argued that dueto the sheer diversity and heterogeneity of wartime rape victims,the experience of giving testimony is likely to be mixed: whilesome victims may suffer under the constraints of legal process,under the right circumstances, war crimes trials may help othersto make sense of their suffering.     

Is the Sun Setting on Cosmopolitan Justice?

Reports on the UN criminal tribunals and the related hybrid courts raise grave concerns about their sustainability in terms of costs and their legal standards in respect of evidence. The effectiveness of the current courts is compared to the domestic prosecution of offenders from the Auschwitz concentration camp. Although the Auschwitz court failed to capture the enormity of the crime of genocide, there are nonetheless good reasons to re-visit the use of domestic courts and other remedies for such crimes today, particularly after adoption of the genocide law by nation states. Ideals of cosmopolitan justice behind the UN courts are being exported to societies that are ill-equipped to apply or afford them; and domestic legal development suffers as a consequence.     

Recognition as Redistribution

Abstract

This paper aims to explore and examine the implied commitment to the premises of recognition in Rawls’s account of redistributive justice. It attempts to find out whether or not recognition relations that produce humiliation and cultural injustice can be followed to their logical conclusion in his theory of redistribution. This paper makes two claims. Firstly, although Rawls does not disregard the harms of misrecognition as demonstrated in his notion of self-respect being the most important primary good, he cannot liberally accommodate the idea of humiliation as a case of injustice without compromising the basic premises of his theory. Secondly, while resource distribution produces indirect side effects that can impact upon cultural injustice, addressing recognition issues through the prism of redistribution can inadvertently result in further misrecognition. The paper concludes that in the final analysis Rawls wrongly takes redistribution as the overarching principle of justice to which recognition is but a subservient principle.     

Official apologies,reconciliation, and settler colonialism: Australian indigenous alterity and political agency

The burgeoning literature on transitional justice, truth commissions, reconciliation and official apologies tends to ignore the conditions of settler states in which ‘reconciliation’ needs to take account of indigenous minorities. The settler colonialism literature is worth including in the general discussion because it is exceptionally reflective about political theory (the constitutional recognition of indigenous rights) and ethnogenesis (the origin and viability of both settler and indigenous identities), challenging mainstream liberalism, in particular, to account for difference beyond platitudes about multiculturalism. This article highlights the postcolonial critiques of the Australian governments' apology to the indigenous peoples of the country. The authors of these critiques seek to protect indigenous alterity from the Australian state, which they regard as irredeemably colonialist, especially in its liberal and progressive mode. The article suggests that Indigenous political agency transcends the resistance/co-option dichotomy presented in much of the apology's commentary.     

Toward a Coherent Theory of Human Moral Development: Beyond Sir Isaiah Berlin's Vision of Human Nature

Berlin's theory of human nature is criticized on two grounds. First, within his substantive account of us, there is a tension between the Kantian vision of persons as purposive (which requires that we be free) and the Herderian pluralism (which depicts liberty as equal to other values). Second, his claim that theories of self-realization are inherently prone to rationalist perversion-and political oppression-is depicted as mistaken because it is teleology, and not the regularities of human change, that perverts our ideals. To resolve the tension within Berlin's account, a non-teleological account of our moral development is suggested: once secured, we can grow in a variety of contradictory directions. Liberty-which, along with justice and privacy, fosters security-is thus not the height of a superior morality, but a part of the psychological basis of any valid morality.     

Democratic justice and contractarian injustice

This paper places Weale’s theory in its historical context, clarifying the dispute between Brian Barry’s justice as impartiality and David Gauthier’s justice as mutual advantage. Contra Weale, who argues that justice can involve both mutual advantage and impartiality, this paper suggests that impartiality and mutual advantage are incompatible, and that Barry’s position is preferable to Gauthier’s. Three specific issues will be addressed: First, Weale’s theory of democratic justice includes an account of injustice which is unpersuasive. Secondly, deliberative democracy does not only require equality of power, as Weale suggests, but also material (economic) equality. Thirdly, Weale’s claim that workers should be allowed to keep the full fruits of their labour is questionable.     

Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court

Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision making during the Burger Court (1969–86). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo .     

The Responsibility to Protect: Libya and the Problem of Transnational Solidarity

The first part of this article examines some of the legal, ethical, and political dimensions of the Responsibility to Protect doctrine by engaging with cosmopolitan proposals for its application to Libya before the international military action to enforce it was initiated in March 2011. It presents reflections of a historical kind on state sovereignty, international community, and the political theology of humanitarian intervention while assessing the nature of the moral imperative underpinning cosmopolitan assertions of responsibility to save lives in Libya. Considering the official recognition of the Transitional National Council by the enforcers of the Responsibility to Protect doctrine as the sole legitimate authority on Libyan territory, the second part of the article situates this act of recognition within a history of colonial practices that include the legal mechanism of “the protectorate.” It also discusses the prominence of imperial affects in the Responsibility to Protect doctrine. The third part of the article evaluates disagreements among certain anti-imperialist commentators over the desirability of a military intervention in Libya in order to reflect on the politics of transnational solidarity from an angle that may present itself as an alternative to the Responsibility to Protect framework. While calling for a renewed critique of violence, the article concludes with an examination of telling difficulties that afflict attempts to differentiate acts of “foreign intervention” from acts of “transnational solidarity.”     

Struggling through the web of impunity—The Jorge Carpio Nicolle case

Through the lens of Guatemala’s Jorge Carpio Nicolle case I analyze the mechanisms that preserve impunity in Latin American nations struggling to emerge from violent conflict and embrace, the rule of law. I reveal how the infective influence of parallel powers, the ineffectiveness of the judicial process, and obstructive legal doctrine destroy domestic efforts to prosecute those responsible for human rights violations. The Carpio case exposes the role of international courts in providing justice when domestic courts fail to do so, and it demonstrates the importance of human rights groups in pursuing this justice. The author would like to thank Roxanna Altholz, Adriana Beltran, and Soraya Long for their invaluable assitance in conducting this research.     

The Limits to Evidence‐Based Policy: Evidence,Emotion and Criminal Justice1

While ‘evidence‐based’ or ‘rationalist’ approaches to criminal policy may appeal to technocrats, bureaucrats and a number of academics, they often fail to compete successfully with the affective approaches to law and order policies which resonate with the public and which appear to meet deep‐seated psychological needs. They also often fail to recognise that ‘policy’ and ‘politics’ are related concepts and that debates about criminal justice are played out in broader arenas than the academy, the bureau or the agency. To be successful, penal reform must take account of the emotions people feel in the face of wrongdoing. Further, successful reform must take into account changes in public ‘mood’ or emotions over time and be sensitive to different political and social cultures. This article argues that criminal justice policies are more likely to be adopted if, in addition to the gathering and presentation of evidence, they recognise and deal with the roles of emotions, symbols, faith, belief and religion in the criminal justice system. It also recognises that evidence alone is unlikely to be the major determinant of policy outcomes and that the creation and successful implementation of policy also requires extensive engagement and evidence‐based dialogue with interested and affected parties. This necessitates a different kind of modelling for evidence‐based policy processes.     

Statelessness,identity cards and citizenship as status in the case of the Nubians of Kenya

Statelessness as a legal and political problem has attracted increasing attention from scholars and international advocacy organisations in recent years. This attention has predominantly focussed on the legal aspects of statelessness, and has generally held the acquisition of citizenship documentation as the primary goal in remedying citizenship deprivation. This article explores the merits of this focus through a case study of the Nubians of Kenya, widely considered stateless until recently. The article connects the focus on citizenship as documented status to a liberal conception of citizenship. The article identifies the ways in which this approach is helpful, that is, as a means of pursuing legal status and possession of individual rights. It then goes on to identify more important ways in which a liberal conception of citizenship falls short of accounting for the Nubians' citizenship problems by neglecting the more collective dimensions of citizenship practice and recognition.     

Living up to the normative ideal of the human right to adequate housing in urban Ghana

This article constructs a holistic narrative on the right to adequate housing in Ghana by piecing together the fragmented literature on the various dimensions of the right using the traditional “qualitative” approach to literature review. Results of the thematically synthesized literature reveal that housing rights in urban Ghana pale empirically in comparison to its normative tenets. The right is violated in all its dimensions, ranging from high insecurity of tenure to the cultural unsuitability of many high-rise dwellings. Major causes identified include the normative framing of slums as illegitimate, defunct and unenforced rental legislation, poor integration of modern and vernacular housing designs, and poor justiciability of the right within the domestic legal system. The situation in Ghana mirrors those in other countries across the globe—however, with local peculiarities—and points to why empirical work on the right within diverse sociopolitical contexts is necessary.