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The Implementation of the Rights to Self-Determination of Aymara and Quechua Indigenous Peoples: An International Normative Response to the Spanish Conquest of Tawantinsuyu
Get PDFContrary to ethnocentric views of law, this Article proposes an inter-civilizational perspective of international law. This perspective provides an analytical tool to understand the importance of preserving and empowering diverse cultures and peoples. In a globalized world, there is an increasing recognition of the contributions of diverse cultures and nations, including indigenous, to the economic development and the cultural heritage of humankind. The Article focuses on the importance of the resolution of a historical and ongoing ethnic conflict between the people of Tawantinsuyu, especially the Quechua and Aymara, and the descendants of Spanish conquistadores who continue to pursue policies to undermine indigenous civilizations. This Article makes the case for the implementation of indigenous peoples’ right to self-determination, in its remedial and internal aspects, as one of the foundations for the peaceful resolution of ethnic conflicts in Bolivia, where the decedents of the people of Tawantinsuyu are a significant part of the population. To accomplish this objective, it analyzes historical and legal ideas that have sustained the natural right to self-determination of indigenous peoples. It also addresses issues regarding ethnocentric, unjust normative discourses that justified the conquest and colonization of the Inca realm. The Article evaluates historical and anthropological facts regarding indigenous nations that were affected by the ideas and actions of Spanish thinkers and conquerors. The international relations between the Inca Empire and Spain are an excellent case study to understand the importance of cultural presuppositions in the construction of international normative ideas that have influenced international relations between diverse civilizations
Equality Offshore
Get PDFGlobal governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development (OECD) and the European Union (EU), risk exacerbating the subordination of marginalized jurisdictions.
This Article makes four core contributions to the OFC literature. First, it argues that the current global governance architecture that is premised on the containment and eventual elimination of OFCs inflicts harms disproportionately on small developing countries, such as post-colonial jurisdictions and overseas territories. This approach uses a “hatchet” method that focuses on blunt instruments such as economic coercion and “lists” of non-cooperating jurisdictions to uniformly constrain a diverse set of jurisdictions. This uniform approach ignores the differences between wealthier, developed, and politically influential countries like Switzerland, on one hand, and developing, post-colonial jurisdictions like Barbados, on the other hand. A more nuanced, targeted “scalpel” approach would identify differences between jurisdictions and employ tools that cause the least harm to more vulnerable locales.
Second, this Article explains that global governance “lists” that “name and shame” jurisdictions fail to adequately consider how small countries conceptualize and use their limited administrative capabilities for economic development. Third, it highlights how offshore financial services help to build judicial capacity in some smaller developing jurisdictions. Finally, it notes that the offshore financial services sector can be a source of economic identity for the communities within some of these jurisdictions and discusses the implications of this complicating factor for the pursuit of global governance agendas
Righting the Rift Between Muslim and American: Celebrating Abdullahi An-An\u27im
Get PDFThis Essay is a special contribution to the Journal of Law and Religion and the Emory International Law Review, honoring the work of Professor Abdullahi An-Na’im and his impact on my work, and more broadly, discourses on Islam in America, rights, and citizenship.
This Essay, celebrating the landmark work of Professor An-Na’im and its impact on my scholarly and public work, will examine these two fronts. By challenging the political constructions of Americanness and Muslim identity that prevailed on the right, left, and in-between, An-Na’im inspired new frontiers of thought and thinkers that followed his footsteps. This line of intellectual impact emanates from his landmark contributions on human rights and Islamic law, but also stands alone to inform the work of thinkers, like myself, who write beyond the bounds of the spheres where Professor An-Na’im made his name
Caliphs, Jinns, and Sufi Shrines: The Protection of Cultural Heritage and Cultural Rights under Islamic Law
Get PDFThis Article examines the position of the Islamic legal tradition on arts and cultural heritage, including its pitfalls, and argues that a better understanding of Muslim state practice is needed to enhance the protection of cultural rights in the Muslim world. This can further facilitate collaboration between Muslim states and inter-governmental bodies working in the field of culture; implement better accountability mechanisms under international criminal law, as well as; to contribute to the fight against terrorism. In addition, the author submits that Islamic law is not necessarily an appropriate platform to enhance cultural rights and cultural heritage in the Muslim world. This is because of the nature of the Islamic legal tradition, which contains an extraordinary number of legal tools capable of setting aside obscure and anachronistic views in favor of modernization, yet is equally full of contradictions and ambiguities. The high complexity and diversity of possible solutions under Islamic law may inhibit the implementation of appropriate cultural policies on the protection of cultural heritage and the arts. The emphasis therefore should be on Muslim state practice, including in particular the practice of the rightly guided Caliphs whose palaces are evidence of tolerance and broadmindedness; contemporary Muslim state practice of those Muslim states that strive to promote cultural rights; and best practices initiated by Arab-Muslim organizations and institutions
Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment
Get PDFThis Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today
Protecting State Constitutional Rights from Unconstitutional Conditions
Get PDFThe unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for state unconstitutional conditions analysis.
As attention turns to distinctive state constitutional rights — in the context of COVID-19 disputes, abortion litigation, and more generally — state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis. Three reasons in particular drive this doctrinal claim. First, the unconstitutional conditions doctrine helps to define the scope and weight of a constitutional right. A state court that ignores the unconstitutional conditions doctrine when considering the constitutionality of a state statute or regulation risks undermining the very nature of the right. Second, uncritically adopting federal doctrine ignores the state’s distinctive legal framework, interests, and history, all of which might lead to a deviation from federal law. With respect to the topics on which unconstitutional conditions litigation typically focuses, such as licenses and permits, the federal-state disparities are especially stark. Third, robust legal development in our federal system depends in part upon the interplay of different institutional interpreters. When state courts and federal courts engage in independent interpretative activity, they create the possibility of dialogue and mutual learning. This interpretive interplay enhances federal doctrine, as well as doctrinal development in other states. Given the gaps and inconsistencies in the unconstitutional conditions doctrine, such interjurisdictional enlightenment is especially needed in this area. After explaining why states should develop their own doctrines of unconstitutional conditions, we suggest the relevant considerations that should guide states in formulating their doctrines
From Contacts to Relatedness: Invigorating the Promise of Fair Play and Substantial Justice in Personal Jurisdiction Doctrine
Get PDFPersonal jurisdiction is integral to access to justice. Without a convenient court, plaintiffs’ efforts to vindicate claims (and society’s interest in private enforcement of law) may be thwarted. After considerable engagement in between 1977 and 1990, the Supreme Court did not decide a personal jurisdiction case between 1990 and 2011. This Symposium addresses what the Court has done regarding personal jurisdiction in the “new era” that started in 2011. That year brought a specific jurisdiction decision, J. McIntyre Machinery, Ltd. v. Nicastro, and a general jurisdiction decision, Goodyear Dunlop Tires Operations, S.A. v. Brown. The former broke no significant new doctrinal ground, but the latter began a remarkable contraction of general jurisdiction. We did not know it at the time, but that contraction would have a profound impact on specific jurisdiction by forcing a change in focus: from whether the defendant had forged a purposeful contact with the forum to whether the plaintiff’s claim is sufficiently connected to the defendant’s purposeful contact.
The Supreme Court is now caught up in this new focus: consider its 2017 decision in Bristol-Myers Squibb Co. v. Superior Court and its 2021 effort in Ford Motor Co. v. Montana Eighth Judicial District Court. In Ford, there are hopeful signs that the Court recognizes that its general jurisdiction decisions wrought more change than it appeared to recognize before. Ford is the first case in the Court’s new era in which plaintiffs prevailed on the question of personal jurisdiction.
Far more significantly, it is the first case since 1957 in which the Court supported a finding of specific jurisdiction by appealing to considerations of the “fair play and substantial justice” prong of International Shoe Co. v. Washington. Ford leaves a great many questions unresolved. But it brings hope that the Court may be invigorating the role of fairness or reasonableness, which it had long subjugated to other considerations in the International Shoe canon. After six decades of indifference, Ford may signal that “fair play and substantial justice” may start to realize its potential to enhance court access
Did Anyone Ask the Child?: Recognizing Foster Children’s Rights to Make Mature Decisions Through Child-Centered Representation
Get PDFA child placed in foster care finds themselves in an especially vulnerable position. Removed from their homes, apart from family, and living with strangers, a foster child’s voice often gets lost in the shuffle. While the Supreme Court has recognized some constitutional rights for children, legislators and judges tread lightly when expanding children’s rights for fear of infringing upon parents’ fundamental rights to determine the care and upbringing of their children. This situation creates a unique disadvantage for a child in foster care who is subject to the trauma of removal, placement in a temporary home of strangers, outside the bounds of parental protection, and often without a voice or an advocate.
This Comment focuses on the plight of foster children in America’s legal system and how children’s lack of decision-making authority leaves their rights under-protected. Through analysis of prominent Supreme Court cases discussing parents’, children’s, and foster parents’ rights, and an examination of state and federal foster care legislation, this Comment argues that the foster child often falls through the gaps among parents, foster parents, and state officials, none of whom exercise full authority over the child. Moreover, the Court’s justification for its failure to grant children the full spectrum of rights rests largely on the premise that the child is cared for by a fit, loving parent who acts in the child’s best interests. However, for the child in foster care, this premise is flawed from the start. The foster child is not in the custody of their legal parent.
This Comment argues that courts must adopt and expand the mature minor doctrine to provide a framework for entertaining and assessing the foster child’s ability to make rational, informed decisions about their own life. Moreover, states must amend their statutory child welfare schemes to guarantee children in foster care the right to an attorney, and, specifically, an attorney who advocates for the child’s expressed wishes throughout the child’s time in foster care. Through these measures, states can return some of the continuity that children in foster care have lost by allowing the children themselves to have a voice
With All the Majesty of the Law : Systemic Racism, Punitive Sentiment, and Equal Protection
Get PDFUnited States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social scientists who study race find that contemporary racism is one of the strongest predictors of punitive sentiment. Specifically, persons who have strong implicit racial bias, racial resentment, or social dominance orientation are more likely to endorse harsh punishments. This research suggests that racism is inextricably connected with punishment. This connection could explain, in part, the continuation of deep racial inequality in criminal justice policies, despite the attainment of formal legal equality. The Supreme Court\u27s equal protection doctrine that focuses narrowly on intentional discrimination is ill-equipped to combat racism associated with criminal justice practices. A more robust and effective doctrine would recognize the relevance of historical racism to contemporary anticrime policies; incorporate insightful conceptions of racism elaborated by social scientists; and recognize the racist dimensions of punitive sentiment. Given the current conservative composition of the Supreme Court, advocates of racial justice could pursue federal and state legislative and executive remedies and state judicial remedies to combat systemic racism associated with criminal law and enforcement
