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Indigenous Sovereignty: A Reassessment in Light of the United Nations Declaration on the Rights of Indigenous Peoples
No full textThis Article explores the concept of indigenous sovereignty against the backdrop of the resurgence of indigenous peoples as actors in international and domestic law and policy. The Author starts with the traditional Western notion of sovereignty and its dynamization via the principle of self-determination, cabined by the exclusionary concepts of terra nullius and uti possidetis. The next Part delineates the global indigenous renascence occurring since the 1970s and the resulting state practice that has led to treaties and to the development of customary international law in the field. The Article proceeds to analyze the scope and legal effect of the 2007 UN Declaration on the Rights of Indigenous Peoples. It lays out various understandings of indigenous self-government under the rubric of self-determination; and ultimately, based on an assessment of the authentic aspirations of indigenous peoples, their inner worlds, it suggests a functional redefinition of the legal scope and the limits of indigenous sovereignty
Is Your Client Prejudiced? Litigating Ineffective-Assistance-of-Counsel Claims in Immigration Matters Arising in the Eleventh Circuit
No full textThe process of adjudicating asylum claims in the United States entails a graduated system of hearings. The first opportunity to present a case is before an asylum officer-a civil official-who conducts an interview with minimal participation by the applicant\u27s attorney. If unsuccessful, the applicant renews the application defensively in removal proceedings before an immigration judge-an administrative official within the Department of Justice. The hearing is an adversarial setting where the attorney for the applicant advocates against an attorney from the Department of Homeland Security\u27s Office of Chief Counsel. Counsel is generally necessary to present an effective case before the immigration court and on any appeal to the Board of Immigration Appeals. The U.S. system represents the necessary tension between the guiding principles of refugee law, known as nonrefoulement,2 and the rigorous examination by officers, judges, and counsel striving to ensure that the applicants satisfy requirements of credibility, corroboration, and a sufficient legal theory that mandates relief. It is axiomatic that an asylum applicant has no experience in navigating the complexities of this system. Consequently, the applicant is overmatched when litigating pro se against the trained counsel representing the United States. The immigration courts do not have the authority to designate pro bono counsel for noncitizen respondents in their administrative proceedings. The consequence is that the asylum seeking community is highly dependent on a private bar that varies in skill level, familiarity with the asylum process, and commitment to its clients. Immigration case law requires applicants to meet strict standards of proof in corroborating their claims. A central problem is whether counsel for these respondents has an equally high burden of effective advocacy or, at a minimum, a burden of informing the clients of their evidentiary obligations. This article will deal with the representation of clients in their claims of ineffective assistance of counsel and assess the role of the Board of Immigration Appeals and the U.S. courts of appeals in ensuring that immigrants are afforded a fair hearing in their removal proceedings. The Board of Immigration Appeals has a long-established, threepronged approach for raising a claim of ineffective assistance of counsel under Matter of Lozada, requiring the applicant to enter a sworn affidavit alleging counsel\u27s responsibilities and their failure to fulfill these obligations, inform the counsel of the charge and permit them to respond, and report any ethical or professional violation to the relevant state bar disciplinary panel. In order to win a new hearing, the immigrant must also show that the defective performance of counsel negatively influenced the outcome of the case.4 The Eleventh Circuit has favorably viewed this requirement of demonstrating prejudice. Thus, before the Eleventh Circuit, pursuant to Dakane v. U.S. Attorney General, the applicant must show that the performance of counsel was so inadequate that there is a reasonable possibility that, but for the attorney\u27s error, the outcome of the proceedings would be different.\u27 Dakane itself involves an attorney that failed to file a required brief and thus deprived a Somali asylum applicant of his right to appeal. The Eleventh Circuit rejected the petition for review because the immigration judge had found Dakane\u27s testimony not credible.6 The court reasoned that the attorney\u27s failure on appeal did not prejudice Dakane, as his own testimony was his undoing.7 The court did not address the fact that with adequate performance of counsel, Dakane might have contested and possibly reversed the negative credibility finding; and that he was therefore likely subject to prejudice by his counsel\u27s negligence. The court presently uses Dakane as the standard for reviewing cases alleging ineffective assistance of counsel. As of May 2008, Dakane has been cited almost 100 times by federal courts of appeals, with most of the citations coming from the Eleventh Circuit.8 The Eleventh Circuit has yet to find prejudice under the Dakane standard. Dakane was decided under the deferential abuse of discretion standard that federal courts apply in cases arising within an administrative agency\u27s area of expertise.9 However, the Board of Immigration Appeals and the Department of Justice (the agency that is being questioned regarding its expertise), in issuing decisions in cases arising in the Eleventh Circuit, rely on Dakane to reject cases for failing to demonstrate the requirement of prejudice. The facts of these cases are often further complicated by multiple layers of ineffective assistance and the failure of counsel to preserve issues for appeal or to properly follow established precedent or procedure. This article will examine the seemingly disastrous results of cases like Dakane in processing the cases of asylum seekers and other immigrants facing deportation. It will further explore bar complaints and Lozada claims before the Department of Justice. The goal is to reveal whether Dakane is itself problematic or if it is simply indicative of failures of advocates in representing asylum seekers and presenting other defensive cases in removal proceedings
In Defense of Speaking out: The European Human Rights Regime and the Protection of Minority Languages
No full textThis presentation will provide an overview of the impact of the European human rights regime on language rights of minorities. I will focus on the most comprehensive legal instrument in the area of minority rights, the Framework Convention for the Protection of National Minorities ( Framework Convention ), and on its monitoring mechanism.1 This treaty, which entered into force approximately ten years ago, has provoked a number of improvements in the protection of language and other rights of national minorities. I believe that it can be a source of inspiration for those working on minority rights outside Europe, even though, within the realm of minority rights, regional answers do not automatically work outside their home base. Given the diversity of situations and wide variety of cultural, linguistic, and other contexts, minority rights regimes do not always travel well
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 3 (2008)
Debt and the Realization of Economic and Social Rights in Sub-Saharan Africa: Beyond Debt Relief to Solutions in the Common Interest
No full textThis essay takes a critical look at Sub-Saharan Africa\u27s debt problem; explores conflicting claims by all stakeholders with respect to the debt issue; analyzes past trends in decision with respect to the problem; and considers the entire picture in the context of likely outcomes in future. In the end, recommendations and suggestions are made with a view to address the common interest of all. It is proposed that a world of human dignity would only be achieved if the barriers to the achievement of all human rights especially economic, social and cultural are removed through cooperation and economic integration by all the states of the world
Empowering People with the Right to Acquire Capital with the Earning of Capital: A Binary Approach to the Economic Empowerment of Subordinated People
No full textBased on binary economics this essay suggests that one overlooked way to empower economically subordinated people in a market economy is to universalize the right to acquire capital with the earnings of capital. This right is rarely specifically identified or discussed in law schools. Although ostensibly open to all people, as a practical matter the right to aquire with the earnings of capital is presently concentrated primarily in less than 5% of the population.\u27 The concentration of the right to acquire capital with the earnings of capital helps to explain why poor people remain subordinated. Foundationally distinct from classical, neoclassical, Keynesian, post-Keynesian, monetarist, and socialist economics, binary economics specifically offers a unique explanation for the persistence of poverty and the unutilized productive capacity to eliminate it. Compared to right-wing, left-wing, and mixed economic strategies, binary economics reveals a voluntary, market-based strategy for producing much greater and more broadly shared abundance without redistribution. These strategies offer help to empower and liberate people who are presently economically subordinated. Based on objective standards of (1) reasonable, workable assumptions; (2) internal consistency; and (3) plausible descriptions, predictions, and prescriptions, binary economics should be taught wherever right-wing, left-wing, and mixed centrist approaches are taught. The presentation concludes that advocates for poor and working people should include binary economics in their analysis and binary strategies among their proposals for reform
Law, Food, and Culture: Mexican Corn\u27s National Identity Cooked in Tortilla Discourses Post-TLC/NAFTA
No full textWith this essay, I will briefly introduce an inquiry concerning food and national cultural identity as expressed in the law. I will examine current changes in the Mexican state\u27s public legal obligations, i.e., the law, and the production and consumption of corn, i.e., maize or maiz. These changes suggest that law, food, and culture are mutually influential in their production and consumption. The specific law examined is Mexico\u27s corn tariff regime altered by the Tratado de Libre Comercio de America de Norte/North American Free Trade Agreement ( TLC/NAFTA ), which in the year 2008 eliminates all tariffs for corn imports from the U.S. or Canada.\u27 The particular food item studied is corn, a product steeped in centuries of cultural significance for Mexico. From a functional perspective, corn is central to the Mexican diet, providing millions a major source of protein and calories. It provides the primary source of income and labor for rural Mexicans. In Mexican society, corn also exerts enormous cultural significance with spiritual, communal, and nationalistic traits stewing from its everyday and historic appeal. Corn is central to dishes appreciated by millions domestically and by millions abroad when celebrating Mexican food.6 These corn-based items include: tortillas, tamales, enchiladas, sopes, huaraches, tostadas, pozole, panuchos, and many others. As TLC/NAFTA legal obligations eliminate public protection from foreign supply markets for Mexican grown corn, this essay asks: how is the law related to the cultural change in the production and consumption of corn in Mexico? For this essay, I will prepare a three-course argument. First, that the 2008 treaty obligation ending corn tariff protection is part of a larger political-economic neo-liberal process, which severely limits public food programs and consequentially disenfranchises popular sectors from the state. Aside from the eliminated corn tariff protections, Mexican popular sectors suffer from the recent elimination of corn subsidies, fixed corn prices, and public sector food aid. Second, that the current corn tariff elimination resembles Mexico\u27s historic and cultural tortilla discourse, which poses Mexican corn and its use by popular sectors against modern, capitalist, and foreign interests. Since the colonial encounter, Mexican history illustrates the cultural challenges of corn for a state seeking international or modern legitimacy.\u27 Corn is popular with the masses but is often apparently contradictory to the public goals. As part of this, corn is painted as backward, pre-modern, traditional, or unhealthy. Currently, the discourse poses Mexican corn production and consumption with skyrocketing Mexican consumer corn prices, due to global demand for ethanol (a corn-based energy source) and domestic cartelization of masa (corn dough) sales. Third, by ending state support for a product of nationalist significance these political-economic and food culture changes pose challenges for Mexican democracy. As domestic governance becomes increasingly contested, any Mexican policymakers require popular support. Decreased state support for corn production and other food programs make civil society\u27s backing for politicians and the state less certain. Describing these points, this essay\u27s menu contains three courses. Section I incorporates theoretical insights from the food studies discipline. It argues that beyond serving for just nourishment, food possesses enormous cultural and commercial value. This creates a ripe and abundant subject for legal analysis, focusing on how the law frames these commercial and cultural tastes. This section offers conclusions from food studies suggesting future legal analysis. Section II analytically serves up the cultural importance of food in Mexico\u27s political economy. It shows how food is stewed (combined without a clear demarcation) within a discourse of national identity on a global table. This identity is imagined as a community with competing menu options of nationalistic and domestic (state protection for corn consumption and production) and foreign and neo-liberal (a free-market for food production and consumption). Section III describes a re-imagination of food and national identity within the confines of Mexican law, specifically the TLC/NAFTA, food aid policy, and antitrust authority
Negligent Hiring and Criminal Rehabilitation: Employing Ex-Convicts, Yet Avoiding Liability
No full textThis article will argue that the proper way to balance the competing public policies of protecting victims from workplace harm and of reintegrating ex-convicts is for states to make it clear to employers when they will be liable for negligent hiring and when they can hire ex-convicts and avoid liability. States can accomplish this in at least two ways. First, states should adopt uniform and clear requirements for negligent hiring while retaining employers\u27 discretion to refuse ex-convicts employment based solely on their status as ex-convicts. Second, all states should fashion legislation with similar requirements. For example, courts should hold employers liable for negligent hiring only when employers are on actual notice that they should have performed a background check and failed to do so, or when they perform a background check and the criminal record is one that directly relates to the specific duties of employment. This approach reflects some of the requirements in the New York Correction Law that prohibits discrimination against potential employees based solely on their status as ex-convicts. Unlike the New York law, however, this recommended approach allows employers to discriminate against potential employees based solely on their status as ex-convicts. Because ex-convicts are a distinct class from other protected classes under Title VII, employers should retain their discretion to discriminate against ex-convicts based on that status. But if states were to provide concrete requirements for employers to avoid negligent-hiring suits, it may result in their hiring more ex-convicts. Part II will flesh out the standards for negligent hiring and some of its thorny elements. Part III will then explain the competing public policies for protecting victims of employment-related crimes and for reintegrating ex-convicts. Part IV will address the federal and state approaches to balancing these competing public policies. Part V will draw distinctions between ex-convicts and the traditionally protected classes. Finally, Part VI will propose a state approach that will inform employers when they may hire ex-convicts and avoid liability and under which circumstances hiring ex-convicts will lead to liability
Sampling: Musical Authorship out of Tune with the Purpose of the Copyright Regime
No full textWhile the present debate over the practice of sampling may seem to be just a minuscule footnote in the evolution of copyright law, the legal battle that sampling is presently engaged in illuminates many of the future, and ongoing, issues that copyright law faces. One of those major issues is whether copyright law embraces the true nature of creation and authorship. An individual\u27s view on the nature of authorship essentially frames his or her opinion on the legitimacy of creative forms built upon appropriation, such as sampling. This article asserts that there are two legitimate forms of authorship: romantic and dialogical. The prevalent view of authorship, in copyright law, is that of romanticism. Romanticism is based upon the theory that an author is in essence a lone genius, or one who creates from scratch. The other end of the spectrum is that creation is by nature more dialogical, or collaborative. The premise being that an artistic work is a product of the influences and creations which came before it. Hence, creativity is achieved by engaging and borrowing from the past. However, both conceptions of artistic creation do not necessarily have to be all or nothing. A person, as well as a copyright system, can recognize that creation occurs both from scratch and collaboration. Nevertheless, the American courts and legislatures have refused to fully recognize this dialogical nature of creation, in addition to the well-recognized, so-called original authorship. This failure of the courts to recognize the full range of authorship occurred most recently in Bridgeport Music, Inc. v. Dimension Films. As a result of the court\u27s unwillingness to acknowledge that creation can be collaborative in nature, an enormous amount of creative forms of expression are being suppressed. By extension, the failure of the copyright regime to encourage this form of artistic expression also hinders the purpose of American copyright law which is [t]o promote the Progress of Science and useful Arts. The American copyright regime must not only recognize a wider conception of artistic creation, but also must align such conception with the purpose of the copyright regime. Specifically in the context of sound recording appropriation, the American copyright regime can properly recognize the true nature of authorship and promote the purpose of the regime by slightly adapting currently recognized copyright tests, such as the substantial similarity and fair use tests
The Kindred Concepts of Seisin and Hawz in English and Islamic Law
No full textBook: The Law Applied: Contextualizing the Islamic Shari\u27a
A sea change has taken place in Islamic legal studies. This book both reflects and contributes to that change. Traditionally, scholars in this field have tended to focus on law as a body of rules and doctrines, as \u27fiqh\u27. This volume is more interested in how the law has been applied to concrete situations. It looks at judicial decision-making, legal responses (fatwas), customary practices, the actions of public inspectors, cultural contexts, and theological discourses as well as modern legal reform and constitutional development. Reflecting the interests of a new academic generation, The Law Applied offers an ambitious and textured account of how Islamic law works in practice in the social life of the contemporary world.https://scholarship.stu.edu/faculty_book_chapters/1041/thumbnail.jp