Politicization as a strategy for recognition and enforcement of human rights in Kenya

Drawing from recent advocacy efforts on the right to education in Kenya, this article argues that linking human rights to local political struggles is a useful way of ensuring their realization. Human rights are legal and moral but their realization is a political project. The form that this project takes will differ from context to context. While paying due regard to the remarkable contribution of international human rights regimes and transnational advocacy of the last fifty years in providing the world with a powerful legal and moral vocabulary of rights, this article suggests that this vocabulary risks losing its edge unless those working in the field of human rights recognize the necessity of local politics. The article examines the activities of the Kenyan human rights movement and its strategic linking of access to basic education with repression of political freedoms. I would like to thank participants at the May 9–10, 2003 “Rights in Africa” conference at North-wester University, Illinois, for their comments on an earlier draft of this paper.     

Corporations and the law: Historical lessons for contemporary practice

Abstract

This article examines the role of the courts, especially the Supreme Court, in facilitating the development of a capitalist economy and enhancing corporate power. Theoretically, I employ an approach which treats the law as a constitutive process. I first survey key legal developments in the nineteenth century through which the courts fostered and nurtured the development of a capitalist economy. Then I analyze the post‐New Deal era, examining the transformation of economic doctrines by the Supreme Court to legitimate a newly emergent corporate‐administrative state. In the last part of the article I use this historical analysis to address contemporary issues for the Left of how to bring about fundamental change in the United States. I discuss the degree to which the law can be used as a means of progressive reform and how strategic legal choices are related to the debate about social movement, discourse, class‐based, and political strategies for change.     

Regulating political advertising in the EU and USA: a human rights perspective

Underlying the American model of political campaign communication are the US Constitutional guarantees of free speech, which secure the rights of citizens to support political candidates of their choosing and express that support in various forms, from bumper stickers to television advertising. Courts have at times struck down measures regulating political advertising, including limits on the amounts of such advertising and the amounts of funds which candidates, parties and individuals may spend on election‐related speeches and advertising as infringements of these rights. With few exceptions, in the USA, government may not limit the number of spots a candidate airs in an election. In Europe, international norms concerning free expression and fair elections appear in a number of legal instruments, including, most recently, the UK's Human Rights Act 1998 and the EU's Charter of Fundamental Rights. This paper compares the role and development of American First Amendment doctrines in limiting restrictions on political advertising in the USA with the development of comparable norms of free expression under the European Convention on Human Rights, European Union treaties and legislation and national laws of the member states and accession countries. In particular, this paper addresses the validity and enforceability of European legal limits on number, timing, placement, quantity and content of political advertisements under applicable human rights rules and similar regulations. The paper concludes that (1) a combination of European legal instruments, including the European Convention on Human Rights, the European Community Treaty, the European Community's ‘Television Without Frontiers’ Directives and the Council of Europe's Convention on Transfrontier Television offer protections of a kind and type which broadly track the protections of the USA's First Amendment; that (2) it seems that governmental justifications for restricting these freedoms are more readily accepted in Europe than they might be in courts in the USA; and that (3) certain restrictions on political advertising identified in previous studies as existing throughout Europe will face increased judicial scrutiny and some of them are probably illegal under European Human Rights principles. Copyright © 2004 Henry Stewart Publications     

Power,Powerlessness and Petroleum: Indigenous Environmental Claims and the Limits of Transnational Law

Environmental disasters, particularly oil spills, increasingly involve a complex intermingling of the national, international and often the transnational. Traditional responses to seeking remediation have pursued the legal path of class action suits against multinational corporations. This article examines one such historic case, Aguinda v. Texaco, Inc., in which residents of Ecuador's Amazonian rainforest brought suit against Texaco in US federal courts through the legal opening provided by the Alien Tort Claims Act of 1789. Dominant analyses of this case have centered on the failed promise of this law to serve as a human rights tool and view this failure in terms of the sovereigntist limitations on an emerging cosmopolitan order. Against these analyses, this article offers an alternative approach that shifts the focus from the limitations of the law towards a perspective on power. Bringing to bear political science's power debate to develop this perspective on power, the article highlights what analytical tools from this debate are translatable or which are not for understanding the power relations of the Aguinda case. Through this exercise, this article aims to prod a reconsideration of dominant theories of power, developed in a frame of the nation-state, and to provoke their redevelopment to better engage with the complex and dynamic flows of power in cases of environmental justice and politics across borders.     

Latino immigrant workers in the Los Angeles apparel industry

Abstract

The apparel industry is one of the most globalized industries in the world. Apparel manufacturers are moving production to areas of the world where they can obtain the lowest wage labor. Imports of clothing to the US have risen dramatically, while garment jobs have dwindled. Los Angeles is the one area of the country that is running counter to this trend, in part because of its access to a large, Latino workforce, many of whom are undocumented. This paper considers the organization of the apparel industry in Los Angeles today, especially the return of sweatshops. It examines the role of Latino immigrants as operatives in the industry, and the conditions under which they must work. The fundamental problem lies in the lack of political power of these workers, who must labor under an apartheid‐like system that denies them basic civil rights. Even recent signs of growing Latino political mobilization cannot bring immediate relief. Garment workers need to unionize in order to protect themselves. The problems and prospects for organizing are briefly considered.     

The Impoundment Control Act of 1974: Restraining or Reviving Presidential Power?

The power to impound allows the president to cancel or postpone the spending of appropriated funds. Over the years Congress has struggled with the challenge of maintaining some control over impoundment actions while still allowing sufficient discretion for the president during budget implementation. This article examines the events leading up to the passage of the Impoundment Control Act as Title X of the Congressional Budget and Impoundment Control Act of 1974, and the framework established by the law. It provides some analysis of data on rescissions and deferrals in the period from 1975–1995 and reviews efforts to grant the president expanded impoundment authority, culminating in the passage of the Line Item Veto Act of 1996. On April 10, 1997, the new law was found unconstitutional by a district court, but on June 26 the Supreme Court set aside that earlier decision on jurisdictional grounds, ruling that the plaintiffs (six members of Congress) lacked proper legal standing to bring the case ( Raines v. Byrd , 96–1671). However, the Supreme Court decision was confined to this technical issue and did not address the underlying constitutional questions. Whatever the further legal developments relating to the Line Item Veto Act, the article suggests that the issue of restraining or reviving presidential impoundment power will remain unsettled.     

Barely legal: racism and migrant farm labour in the context of Canadian multiculturalism

This article investigates how colonial attitudes towards race operate alongside official multiculturalism in Canada to justify the legally exceptional exclusion of migrant farm workers from Canada's socio-political framework. The Canadian Seasonal Agricultural Workers Program is presented in this article as a relic of Canada's racist and colonial past, one that continues uninterrupted in the present age of statist multiculturalism. The legal continuation and growth in the use of non-citizens to conduct labour distasteful to Canadian nationals has provided an effective means for the Canadian state to regulate the ongoing flow of non-preferred races on the margins while promoting a pluralist and ethnically diverse political image at home and abroad. In the face of a labour shortage constructed as a political crisis of considerable urgency, the Canadian state has continued to admit non-immigrants into the country to perform labour deemed unattractive yet necessary for the well-being of Canadian citizens while simultaneously suspending the citizenship and individual rights of those same individual migrant workers. By legislating the restriction of rights and freedoms to a permanently revolving door of temporary non-citizens through the mechanism of a guest worker programme, the Canadian state is participating in the bio-political regulation of foreign nationals.     

Towards an internal health market with the European court

This article examines the process through which a European healthcare dimension has been established and which has gradually extended the rights of European patients to cross-border healthcare. The integrative course has been charted by the legal activism of the European Court of Justice, whereas political voice has largely been absent. Judicial activism alone has applied the principle of the free movement of services to the policy field of healthcare, and thereby further energised the process. The political impact of this specific process of integration through law is, however, clear. The dynamic evolution of Community law has increasingly challenged the national instrument to retain health supply within own borders. Furthermore, the position of the European patient has been empowered by new individual rights, emanating from a supranational locus of rights against which the discretion exerted by national authorities can be challenged. Through the indeterminacy of European rules, open to continuous contestation and clarification, healthcare institutionalisation has proceeded and the European Union has extended into the core of the welfare state.     

Rights,bioconstitutionalism and the politics of reproductive citizenship in Italy

The introduction of a restrictive law on assisted reproduction in Italy in 2004 sees the privileging of a conservative model of family relations and a patriarchal conception of society. This law excludes many individuals from full reproductive citizenship. The 2004 Act excludes gay couples, single people and people who are carriers of genetically inherited conditions from access to assisted reproductive technologies. This article examines the manner in which citizen contestation of the law via Court challenges engages what Jasanoff (2011, Reframing rights: bioconstitutionalism in the genetic age, Cambridge, MA: The MIT Press) has termed a practice of ‘bioconstitutionalism’. Such a practice has led to a gradual judicial reworking of the Act, and demonstrates the power of individuals acting in concert to contest successfully draconian state action. It undoes the imposition of a biopolitical ordering on individuals and allows them, through their own continuous action, to perform a contestatory form of citizenship.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

Effective citizenship in the cracks of neocorporatism

Citizenship is increasingly investigated not just in terms of rights and duties, but as contentious, evolving and continuously forged anew. This article analyzes an Israeli High Court ruling from 2007 to show how a liberal, human rights-based discourse enabled effective citizenship within neocorporatist frameworks for those outside the formal political community. The ruling, which extended Israeli labor law to Palestinians in the Israeli-occupied West Bank, marks the breakdown of neocorporatism’s fundamental premise of congruence between labor force participation and participation in the political sphere, which engenders new opportunities for rejecting subjecthood and demanding inclusion. This marks a new development in the balance between the conflicting imperatives of economic inclusion and political exclusion in Israel’s relations with the Palestinians, and legitimizes practices of citizenship where formal political space is denied. It is not yet the ‘de-nationalizing’ of the state, but may be a step in decoupling effective citizenship from national belonging.     

Mexican migration policies after IRCA

The evolution since 1964 of Mexican government policy regarding migrant workers in the US is discussed. For a decade after the "bracero" program was terminated by the US, the Mexican government attempted to encourage creation of another legal framework for migration, regarded as inevitable whether legal or clandestine. Around 1974-75, a more distant attitude, termed the "policy of no policy," acquired considerable support in Mexican government and academic circles. The no-policy strategy allowed Mexico to achieve certain objectives regarding migration without prompting US intervention in its internal affairs, as for example by a linkage of US migration policy to specific Mexican government actions. The 1986 passage of the US Immigration Reform and Control Act effectively ended the no-policy strategy that had allowed the Mexican government to count on the continued emigration of Mexican workers without compromising its position of promoting respect for migrant rights. The unilateral change in the status quo by the US led to substitution of the "policy of dialogue," a clear signal of the Mexican government's search for a new migration agreement. The policy of dialogue has entailed greater discussion of the two traditional Mexican objectives regarding migration. Some progress has apparently been made concerning migrant rights, but the second and less explicit objective, that of preventing abrupt changes in US immigration policy and in migratory flows, is harder to judge. The atmosphere of freer public debate in Mexico is politicizing migratory policy.     

Europeanisation with Many Unknowns: National Company Law Reforms after Centros

Negative integration through the expansive interpretation of European market freedoms is said to undermine domestic social regulation – by vertically imposing a strictly liberal interpretation of EU rules and by pushing EU member states into horizontal regulatory competition. This article analyses domestic policy responses to one particularly prominent instance of negative integration: the CJEU’s case law on the freedom of establishment since its first landmark ruling on Centros in 1999. The analysis shows that national company laws have only converged downwards in one particular subfield – minimum capital requirements – but they remain strikingly diverse across, and increasingly within, member states on most other issues, such as workers’ codetermination rights. Legal uncertainty about the Court’s case law, the mixed economic incentives it provides for firms and political disagreement about appropriate policy responses leave considerable space for differential Europeanisation. The crisis adds to these uncertainties and thus reinforces the trend towards differentiation rather than convergence.     

Dillon's Rule Under the Burger Court: The Municipal Liability Cases

Under the Burger Court, the constitutional relationship betweenstates and their municipalities has been examined primarilyin cases involving private suits initiated against municipalitiesunder federal antitrust and civil rights statutes. Since theCourt's 1943 Parker v. Brown decision, it had been presumedthat municipalities as political subdivisions of states wereas immune as their states from tort liability under the ShermanAntitrust Act. The Burger Court, however, ruled that municipalitiesare not automatically immunized from tort liability simply becauseof their status as political subdivisions unless they can demonstratethat their actions were undertaken pursuant to an expressedstate policy. After 1980, the Court continued to uphold thevulnerability of municipalities to private suits authorizedby federal statutes, but moved to narrow the types of remedyappropriate under common law. The Burger Court did not, therefore,address the more fundamental question of whether municipalitiesas public actors should be liable to private damages in thecourse of their public functions.     

USA,the West and the Rest after September 11/October 7, 2001+: A Midterm Report

This article argues that if the proponents of immigration reform have it their way, the proposed guest worker program will transform American citizenship from an institution based on civic membership to one based on residence rights and socio-economic status. American citizenship, now a relatively accessible option, will become a closed-off status, unattainable for the majority of temporary workers. With this policy, the United States will create a permanently disadvantaged category of guest workers and further reduce the competitiveness of low-skilled minimum wage American workers. The concept of immigration has begun to change from an inclusive notion granting equal rights to immigrants and citizens to a more ambivalent model emphasizing obligations and responsibilities of newcomers while withholding social, political, and legal rights. Guest worker programs with limited residence will accentuate for immigrants that they must pay taxes and benefit the American economy, obey US laws and otherwise contribute to the host society which, in turn, has no reciprocal obligations toward them. This will exacerbate the already existing two-tiered system of human and social rights, creating a new feudalism in America.     

Foreign Direct Investment,Regime Type,and Labor Protest in Developing Countries

We explore the relationship between FDI, regime type, and strikes in low‐ and middle‐income countries. We argue that FDI produces social tensions and opportunities for protest that can result in higher levels of industrial conflict. However, the effect of FDI is moderated by regime type. While democracies tend to have higher levels of protest overall, they are better able than authoritarian regimes to cope with the strains arising from FDI. We cite two reasons. First, political competition forces regimes to incorporate workers, which shifts conflict from industrial relations to the political arena. Second, democracies provide workers with freedom of association rights, which facilitate institutionalized grievance resolution. We test the argument using a new dataset of labor protest in low‐ and middle‐income countries for the period 1980–2005.     

Social conflict over property rights: the end,a new beginning,or a continuing debate?

The ownership and control of private land is a core social value in the United States. Public planning can be seen as conflicting with this value. The long-standing tension between private property rights and public planning was heightened in the 1990s with the emergence of the so-called private property rights movement. This movement seeks to limit governmental authority over privately owned land through a multi-level strategy of legal, policy, political, and public relations actions. This paper explores the historical basis for this conflict, the legal framework within which it functions, and contemporary policy battles.

The paper concludes that there may be no final outcome to this debate. Property rights activists are impassioned and believe their view of history and law is correct. I argue that it may be best to see debate about land use and property rights as one of the central vehicles for a continual reframing of core values in the American experience.     

Intergovernmental relations in Nigeria: Local government and the 1979 Nigerian Constitution

This paper examines the intergovernmental relations prescribed by the Nigerian Constitution of 1979. In particular it discusses the elevated constitutional status of local government, tracing the origins of this to the 1976 local government reform. The question of how to interpret the provisions of the Constitution on the restructuring of local government and whether this is solely a State responsibility or a joint State/Federal responsibility is analysed. The article argues that the States have political and administrative responsibility for local government whereas the Federal responsibility concerns the regulation of the amount of money to be distributed to local government from the Federal Account. The Lagos State High Court judgement which supports the view that States have political and administrative responsibility for local government, but nullified the State's legislation, is extensively reported and analysed. Also discussed is the Allocation of Revenue (Federation Account, etc.) Act 1981 which both reflects and supports the view that the federal relationship to local government is defined by finance. The paper also probes the intention of the Constituent Assembly by analysing its report. The paper complements that by Smith and Owojaiye in the previous number.     

A comparative view of indigenous citizenship issues

Following the Wik decision it is being suggested that Australia ought now to revisit the translation of special legal norms formulated in international law with respect to the human rights of indigenous citizens. These have previously underpinned developments in both Australia and Scandinavia with respect to indigenous people. Recent Australian developments, particularly the struggle over indigenous property rights, exemplify the argument of O'Neill (1997) in the first volume of Citizenship Studies, which points to the absorption of civic autonomy by market sovereignty. O'Neill is correct to suggest that the dominance of market sovereignty reduces the political participation of those incapable of the competitive struggle for private affluence and that this has a squalid dimension. Central to this is the denial of the notion of community and dominance of the market. This dominance has obscured the significance of the Australian High Court's recognition of aboriginal land rights in Mabo. The decision put the incorrect application of terra nullius—or no man's land—to Australia to rights. It made it possible for the nation to contemplate indigenous sovereignty consequent upon the recognition of native title property rights. Australia's translation of those rights with the Native Title Act 1993 (Cth) looked to international law for its rationale. The rights of the Sami people have been developed in Scandinavia largely with reference to the evolution of international law on indigenous peoples. As we approach 2000, Australia cannot continue to ignore the special legal norms in international law relating to citizenship of indigenous peoples. International law informs attempts by indigenous people in modern times to regain some of what they lost in the past.     

Internationalism Under Platform Capitalism: Brexit and the Organisation of UK Fast Food Workers

In October 2018, a coalition of UK trade unions and civil society organisations called a strike across the UK’s fast food sector in support of a living wage, union recognition and the end to zero‐hour contracts in the sector. This paper takes the day of action—labelled the McStrike—as a starting point for an account of the place of the EU and Brexit in the campaign for fast food rights, as well as the contrasting political standpoints adopted by the different trade unions involved in the action. Brexit is used as a prism through which to analyse aspects of Britain’s contemporary food politics, especially those pertaining to freedom of movement, workplace organisation, and the role of EU legislation in protecting workers’ rights. In exploring the international dimensions of union organisation among the UK’s fast food workers, other, more conceptual considerations regarding the changing nature of public and private food consumption and the incorporation of food‐to‐go into the gig economy are also broached.