《国家赔偿法》修订后的几大亮点

历经十五年争议的《国家赔偿法》终于修订颁布,新法在归责原则、执法机关的举证责任、刑事拘留导致赔偿的责任确定、公民的精神损害赔偿、民主与平等精神、赔偿程序的合理规范等六个方面较之从前有很大完善,标志着我国宪政制度的巨大进步以及对人权保障的提升。     

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.

From Shaw v. Reno to Miller v. Johnson: Minority Representation and State Compliance with the Voting Rights Act

In 1994, four federal district courts applied the tests setforth in Shaw v. Reno in order to rule on the constitutionalityof congressional districting schemes that were comprised, inpart, of "majority-minority" districts. The difference of opinionthat arose among the lower courts indicated that Shaw had setforth unclear standards for determining (I) what role the federalcourts should play in monitoring state redistricting practices,and (2) whether a remedial redistricting plan is a racial gerrymander.Also, the disagreements exposed the weakness of some of theassumptions on which voting rights analysis is grounded. InMiller v. Johnson, the Supreme Court sought to address the lowercourts' concerns. Nonetheless, voting rights jurisprudence remainsunclear regarding (I) what constitutes a valid claim of vote-dilution,and (2) whether voting should be perceived as a group or individualright.     

State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey

In 1985, state courts of last resort issued more decisions thanin any year since 1950 in which they extended rights protectionsto individuals beyond those recognized by the U.S. Supreme Courtby basing rights protections solely or independently upon stateconstitutional grounds. A survey of state high court judgesand justices reported here indicates that there has been a nationwideincrease in the number of individual rights cases litigatedunder state constitutions since 1980. Significant-to-moderateincreases, however, were more likely to be reported by justicesfrom the Northeast and West, from states having a moralisticpolitical culture, and from courts whose members are appointedby the governor and/or legislature. State constitutional rightsclaims are more likely to be raised in criminal than noncriminalcases, though in both types of cases and in most states, stateconstitutional rights claims are raised less frequently thanfederal constitutional rights claims. Majorities of judges andjustices favor the ideas of teaching state constitutional lawin law schools and of testing for knowledge of state constitutionallaw on bar examinations.     

Reporting Without Knowledge: the Absence of Human Rights in US Journalism Education

Journalists play an important role in the realization and protection of human rights worldwide, framing and shaping the public’s understanding of issues. In the United States, however, studies show that media coverage of human rights is inadequate and frequently inaccurate, with US journalists typically framing human rights as an exclusively international issue. This study helps to explain why this is the case through an examination of the human rights content of journalism education in the United States. Journalism education is dominated by undergraduate programs in the United States, yet data from this study show that human rights education is not part of journalism training programs at the undergraduate level (at the top 10 schools, ranked according to the number of graduates, there are no human rights courses for journalism majors) and is not a focus of most graduate-level training programs. Those schools that do teach human rights do so largely with a focus on events and violations abroad. The fact that journalists are not educated about international human rights law and standards or taught to view events through a human rights lens means that crucial opportunities are missed to frame topics as human rights issues, to inform the public, and to hold governments and other human rights violators accountable.     

Competing Concerns: Balancing Human Rights and National Security in US Economic Aid Allocation

This paper theorizes that the effect of human rights violations on US economic aid is conditioned by the salience of US national security concerns. National security concerns will be more salient in situations where recipients contribute to maintaining US security and in temporal eras when the USA is perceived as being under increased external threat. As the relational and temporal salience of national security increases, any negative effect of human rights violations on US economic aid should decrease. I test this hypothesis by examining US economic aid allocations to states from 1977 to 2005. The results show that the salience of national security concerns present in the US-recipient relationship does condition the relationship between human rights violations and US economic aid. There are also significant differences between different temporal eras of US foreign aid allocation. Future work should address how conflicts between interests and values in US foreign policy are negotiated.     

The Voting Rights Act in North Carolina: An Evaluation

This study evaluates the impact of the Voting Rights Act onthe black electorate in North Carolina. A quasi-experimentalresearch design compares progress made in the forty countiescovered by the act (the experimental counties) with an equivalentgroup not covered by the act (the control counties). The resultsindicate that blacks in the experimental counties have madesignificant gains in registering voters, electing black officials,and improving their social and economic conditions.     

Human Rights Abuses in Bangladeshi Policing: the Protection Capacity of National Human Rights Commission

This paper is about human rights and policing in Bangladesh, with special focus on the role of National Human Rights Commission. The protection and promotion of human rights in Bangladesh has become difficult as the law enforcement agencies, particularly the police and the Rapid Action Battalion (RAB), are involved in human rights violations. An overall culture of impunity for human rights violations exists in Bangladesh. The National Human Rights Commission appears to have failed to break the culture of impunity in Bangladeshi politics. This paper explains the reasons why the National Human Rights Commission in Bangladesh largely fails to make the political system in particular law enforcement agencies accountable.     

Defensive Enforcement: Human Rights in Indonesia

The objective of the article is to examine the human rights enforcement in Indonesian legal and political system. This is done by studying the legal basis of human rights, the process of proliferation of human rights discourse, and the actual controversies of human rights enforcement. The study has the effect of highlighting some of the immense deficits in ensuring that violations are treated under judicial procedure and the protection of human rights is available and accessible for victims. The author inevitably came into a conclusion that the openness of legal and political arenas for human rights discourses is not followed with a tangible impact on the entitlement positions of the people. The problems of the weak institutions and the unenthusiastic enforcement show that, in Indonesia, human rights are formally adopted as a political strategy to avoid substantial implementation.     

US Media and Post-9/11 Human Rights Violations in the Name of Counterterrorism

This article adds to earlier research revealing that the American news media did not discharge their responsibility as a watchdog press in the post-9/11 years by failing to scrutinize extreme and unlawful government policies and actions, most of all the decision to invade Iraq based on false information about Saddam Hussein’s alleged weapons of mass destruction arsenal. The content analyses presented here demonstrate that leading US news organizations, both television and print, did not expressly refer to human rights violations when they reported on the torturing of foreign detainees during “enhanced interrogations” in US-run prison facilities abroad and the killing of civilians, including children, in US drone strikes overseas and outside theaters of war. Moreover, by framing torture and the “collateral damage” caused by drone-launched missile attacks episodically rather than in the context of human rights, the news media failed to alert the American public to the grave humanitarian violations in the so-called war on terrorism during the George W. Bush and Barack Obama administrations.     

Rights and the Political Process: Physician-Assisted Suicide in the Aftermath of Washington v. Glucksberg

Although scholars have been concerned over the last severaldecades with assessing the relative consequences of relyingon the political and judicial processes for resolving rightsclaims, most of these studies have analyzed cases in which rightshave been secured through the judicial process. This paper takesa different approach and analyzes the consequences of Washingtonv. Glucksberg (1997), in which the U.S. Supreme Court deferredthe issue of physician-assisted suicide to the states 'politicalprocesses, at least for the present time. This study seeks todetermine, through an analysis of state developments in thetwo-year period following the Glucksberg decision, the extentto which the various hypothesized advantages of resolving rightsclaims through the political process have been realized. Itis reasonable to conclude that Glucksberg has generally hadthe effect of enhancing democratic deliberation, securing representationof relevant interests, and providing opportunities for policyexperimentation in various states.     

Effects of the Voting Rights Act in Texas: Perceptions of County Election Administrators

Texas county election administrators view the Voting RightsAct negatively, but acknowledge that the act affects their decisionsabout election administration. The VRA is also seen as costlyand not contributing to citizen participation; however, onlya small percentage of the survey sample reported on here wouldeliminate the VRA. Although there is hostility expressed aboutfederal government intrusion in local affairs, there is compliancewith the VRA by local election officials. The number of Texassubmissions and U.S. Attorney General objections to electionchanges is sizable when compared with other states covered bythe VRA. Federal objections to some election law changes haveresulted in the election of minority public officials. Texas'Section 5 objections are evidence of a history of voter discrimination.     

Reviving Social Rights in Latin America: The Potential Role of International Human Rights Documents

Social rights are essential to our ability to fully participate in society. In Latin America, these rights are increasingly marginalized as neoliberal policies take hold. At the same time, the related concepts of civil society and social capital are often incorporated into strategies aimed at alleviating the problems of the Latin American poor. It is expected that by strengthening people's civic capacity, their sense of mutual responsibility and ability to self-provide certain services will be enhanced. In the context of the current policy environment, however, such strategies are unlikely to be entirely successful. Lack of economic resources may preclude the Latin American poor from effective civic participation. More importantly, the promotion of civil society and social capital on the part of aid agencies and governments may represent an implicit threat to social rights, in as much as the organizations advocated are not likely to actively struggle for expansion of rights. Nevertheless, human rights documents such as the Universal Declaration of Human Rights and the Convention on the Rights of the Child provide a base upon which rights-based movements can be constructed.