The Incongruities of Grutter

This article scrutinizes the inconsistencies in the 2003 Grutter v. Bollinger Supreme Court decision which upheld the University of Michigan’s law school affirmative action policy. The decision, which now governs university admissions policies in all 50 states, ruled that “diversity” remains a compelling state interest that legally justifies discriminating between individuals on the basis of their race in determining college admissions. This article examines two incongruous justifications offered by the Grutter court in justification for their ruling: the “critical mass” justification and the no “undo harm” argument. Neither rationale is able to withstand careful, logical examination.

Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion Strategy of the ICTY

This article examines how international institutions serve to diffuse human rights norms and create judicial capacity building in post-conflict societies. Specifically, we examine how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Office of the High Representative have influenced the reform of domestic courts in Bosnia and Herzegovina (BiH). We place these reforms within the broader debate over restructuring the complex system of government in BiH. Since 2005, domestic courts in BiH have had jurisdiction over the following: (1) Cases which were initially under the jurisdiction of the domestic courts but remanded to the ICTY and recently returned to BiH. (2) Cases which originated at the ICTY and have been transferred to the State Court, and (3) new cases which originated and remained in the domestic court system. We find that while human rights norms have been incorporated into the new legal code, the diffusion of these human rights norms has been inadequate because of the lack of judicial capacity building. While some courts in the capital enjoy significant resources, the vast majority of cases will be tried at provincial courts which are under-funded and unable to prosecute the significant number of cases. Moreover, the government structure of BiH has had a decidedly negative impact on the prosecution of these cases. Ultimately, the rule of law requires consistency of approach and funding to protect human rights throughout the state.

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Yahoo? Reining in the Wild West with the Alien Tort Claims Act

In the wake of globalisation, we have witnessed the rise of the transnational corporation—powerful, new players in an international human rights system ill-equipped to handle the challenge. Despite the best efforts of the United Nations, international treaties and human rights lawyers the world over, there is simply no mandatory international code of corporate conduct targeting human rights practices. Enter the Alien Tort Claims Act (ATCA), a once-obscure U.S. statute that provides a private cause of action for violations of international human rights law committed by governmental and non-governmental actors. This paper will examine recent ATCA jurisprudence, the landmark Unocal settlement, and the ATCA’s role in reining in Yahoo! Inc. for supplying evidence used to convict Chinese dissidents Wang Xiaoning and Shi Tao.

Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective

Judicial activism is a contested phenomenon, with the liberals and even the conservatives championing it while denouncing its particular manifestations. In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon. To explain why this is happening, the article introduces two ideas: first, the emergence of the judiciary as an organ of governance and its attendant problems, and second, the internally biased nature of the rights discourse which tends to reproduce binary arguments for either increasing State capacity or for increasing choice of goods in the marketplace. The article concludes by exploring lessons from the jurisprudence of other countries and international law and urges the Indian Supreme Court to reinvent a jurisprudence informed more by the social movements of the poor. A shorter version of this article is forthcoming as “Judicial Governance and the Ideology of Human Rights: Reflections from a Social Movement Perspective” in C. Rajkumar and K. Chockalingam (eds.) Human Rights, Criminal Justice, and Constitutional Empowerment: Essays in Honor of Justice V.R. Krishna Iyer (Oxford University Press, India edition, 2006).

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Public Law Litigation: Lessons and Questions

The practice of using courts to foster social change, once confined to the USA, has emerged as a worldwide phenomenon. Foreign practice reflects indigenous forms but faces criticisms similar to that in the USA: that it is ineffective, antidemocratic, and counterproductive. The essay meets these criticisms, first, by recasting US public law litigation as a form of politics that challenges the status quo by forging alliances, changing discursive frames, and disciplining private and public decision making. Looking abroad, the essay emphasizes public law litigation as a meditative institution that facilitates political action and aids in regulatory enforcement where administrative mechanisms are weak or regulation requires ongoing elaboration. Finally, the essay suggests that criticisms of public law litigation tend to neglect three factors: the actual and not assumed comparative advantages of different institutional actors, the role of temporal conditions in affecting social change, and the ubiquity of complex, not dichotomous, relations.

Race,Partisanship, and Political Trust Following <Emphasis Type="Italic">Bush versus Gore</Emphasis> (2000)

In contrast to what we know about the sources of political trust among whites, recent research suggests that political mistrust among blacks indicates discontent with the political system. The current study adds to research investigating racial differences in political trust by examining racial differences in the influence of the 2000 United States presidential election on political trust. Specifically, I test for whether whites and blacks adjusted their trust in government in response to the Supreme Court’s decision in Bush versus Gore (2000) and whether the influence of the Court’s decision on trust was dependent on partisan identification. The findings indicate that blacks perceived the Court’s decision as illegitimate, reinforcing their mistrust in their political system.

Wie lässt sich Demokratie am besten messen? Zum Forumsbeitrag von Thomas Müller und Susanne Pickel

Ohne Zusammenfassung * Die vier Autor(inn)en arbeiten in einem gemeinsamen Forschungsprojekt des NCCR Democracy (vom Schweizerischen Nationalfonds finanziertes National Centre of Competence in Research: Challenges to Democracy in the 21^st Century) und des WZB an einem „Demokratiebarometer“ für die 30 OECD-Staaten, das die Ignoranz der 0-Varianz bei Polity und Freedom House aufkl?ren will.

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Crimes Against Humanity in Colombia: The International Criminal Court’s Jurisdiction Over the May 2003 Attack on the Betoyes Guahibo Indigenous Reserve and Colombian Accountability

The Colombian military and the United Self-Defense Forces of Colombia (AUC) have committed systematic attacks against the Colombian people that violate international law. One such heinous incident took place in May 2003 at the Betoyes Guahibo indigenous reserve in Colombia. Unlike other acts of terror, the attack at the Reserve is well documented. Because of this, the attack on the Reserve is an excellent case for International Criminal Court (ICC) prosecution. This article exposes acts of cruelty and makes a persuasive moral case for ICC prosecution. The ICC has jurisdiction over the attack on the Betoyes people by the AUC and Colombian military. The article further discusses the potential legal exposure of the Colombian government, individual Colombians and US individuals through its military support and training of the Colombian military.

(The) Erasure – Mass Human Rights Violation and Denial of Responsibility: The Case of Independent Slovenia

The case of the erased residents of Slovenia – when approximately 18,000 people who were mostly of Serbian, Croatian and Bosnian ethnicity, were erased from the permanent residence registry of the Republic of Slovenia – represents one of the most severe cases of administrative ethnic/racial discrimination and human rights violations in the post-communist East and Central Europe outside the conflict area. The erasure caused “civil death” of the people who were affected by the measure, depriving them of civil, political, social, and economic rights. In 2007, 4 years after the 2003 Constitutional Court decision, declaring the 1992 erasure an unconstitutional act of the state and requiring the legislator to adopt measures to reinstate the statuses of the erased people, the problem remains unsolved and unaddressed both systemically and individually, and the situation of erasure persists. This article presents the case and analyses of the framework that made the erasure possible in terms of the preparation of the majority of Slovenes to accept and even support the violations and politicians to renounce their political responsibility to those who have lost the right to have rights. This article is based on the insights of the research project Contemporary Citizenship: Politics of Inclusion and Exclusion (2000–2003) led by Vlasta Jalušič. The analysis of the case of erased was published in Jasminka Dedić, Vlasta Jalušič, and Jelka Zorn (eds.), The Erased: Organized Innocence and the Politics of Exclusion, translated from Slovenian by Olga Vuković and Marjana Karer (Ljubljana: Peace Institute, 2003), at . The authors wish to thank the anonymous reviewer for the extensive and most helpful comments.

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Antwort auf die Replik von Marc Bühlmann,Wolfgang Merkel,Lisa Müller und Bernhard Weßels zum Forumsbeitrag von Thomas Müller und Susanne Pickel

Ohne Zusammenfassung

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“The Empire Strikes Back”: The US Assault on the International Human Rights Regime

We argue that the post-9/11 environment has amounted to a substantive change in the longstanding United States relationship with the international human rights regime. We identify three distinct phases of that relationship, noting that in the most recent phase, since 9/11, the US has moved from passive support of the international human rights regime to a direct attack of that regime. Realist and liberal regime theories suggest that the human rights regime is relatively weak, and is unlikely to withstand such an attack. We find that the regime has not only continued to persist, but has flourished even as US support has faltered. The human rights regime is surprisingly strong. We argue it is the ideological nature of the regime that explains its resilience, which suggests that constructivist theory is necessary to fully understand the human rights regime.

International Soft Law, Human Rights and Non-state Actors: Towards the Accountability of Transnational Corporations?

During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful.

Five Challenges to Legalizing Economic and Social Rights

In recent years, dozens of human rights non-governmental organizations (NGOs) across the globe have begun to advocate for economic and social rights, which represents a significant expansion of the human rights movement. This article investigates a central strategy that NGOs have pursued to realize these rights: legalization. Legalization involves specifying rights as valid legal rules and enforcing them through judicial or quasi-judicial processes. After documenting some of the progress made toward legalization, the article analyzes five unique challenges involved in legalizing economic and social rights. It is important to identify these challenges because they must be overcome if the human rights movement wishes to refute the notion that economic and social rights are inherently non-justiciable (and therefore, to some, invalid as rights). These challenges also point to the possibility that legalization is not the only, or even the best, strategic pathway to realize economic and social rights effectively.

From Dictatorship to Democracy: Four Chilean Women’s Memories

A law school dean, a university president, a scholarly judge, and the head of the Foreign Ministry division in charge of Chile’s frontiers agree: The Constitution of 1980 was the initial turning point in Chile’s transition from autocracy to pluralism.

Reparations for Historical Human Rights Violations: The International and Historical Dimensions of the Alien Torts Claims Act Genocide Case of the Herero of Namibia

Between 1904 and 1908, German colonialists in German South West Africa (GSWA, known today as Namibia) committed genocide and other international crimes against two indigenous groups, the Herero and the Nama. From the late 1990s, the Herero have sought reparations from the German government and several German corporations for what occurred more than a hundred years ago. This article examines and contextualizes the issues concerning reparations for historical human rights claims. It describes and analyzes the events in GSWA at the time. It further explores whether international humanitarian law and international human rights law today permit reparatations to be obtained. The article therefore examines the origins of international criminal law, as well as international human rights and humanitarian law, to determine whether what occurred then were violations of the law already in force. Finally, the article examines and evaluates the Herero reparations cases, as well as the potential impact of the cases on the wider reparations movement that sees an increasing number of claims for events that occurred during colonial times.

Intolerance Toward Gays and Lesbians in Poland

The protection of rights of freedom of speech and assembly for gays and lesbians in Poland has come under greater international scrutiny because of the mismanagement of peaceful demonstrations throughout Poland in 2005. An overview and context of the political, economic, and social transformation of Poland in the 1990s shows a flourish of activity among gays and lesbians as the economic and political spheres open, as well as weaker law enforcement during the rapid change to capitalism and democracy. Although society has opened dramatically and tolerance has grown recently, the concept of protecting minority rights for gays and lesbians in Poland continues to be weak in public opinion, laws, and the top sources of opinion.

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Democratic Development,Judicial Reform and the Serbian Question in Croatia

In anticipation of Croatia’s accession to the European Union, this article assesses the way in which the state has come to terms with the Serbian question and the practice of non-discrimination in the justice sector. The first part offers an historical review of the Serbian question in Croatia and the main laws that discriminated against non-Croats during the war and rule of President Franjo Tudjman (1991–1999). The second part evaluates the nature of judicial reform in light of the external demands placed on Croatia to improve relations with the Serbian minority and recent rulings from the European Court of Human Rights, which have questioned the capacity of the Croatian judiciary to provide an effective remedy in cases of human rights violations.

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Why it Never Really was About Authenticity

Critics of the concept fail to note that staged authenticity is not authenticity but its opposite or negation. This error is illustrated referencing Ed Bruner’s reading of The Tourist in his recent book Culture on Tour.

Justice: Plain Old and Distributive: Rejoinder to Charles Taylor

This paper argues that the views of Charles Taylor on justice in income and wealth distribution are fallacious, especially in regard to issues such as private property rights, justice, human rights, and theft. As to this last point, Taylor maintains it is possible, under certain circumstances, to “legitimately steal.” We regard this as a philosophical howler of the first order. We also demur from his contention that equity and equality can be used as synonyms.

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