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Domesticating International Law Through Truth and Reconciliation Commissions: The Case of the Liberian TRC
Get PDFAfrican states actively domesticate international law through judicial capacity-building in, for example, Botswana’s Industrial Court’s use of the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) and International Labor Organization conventions in the Moatswi v. Fencing Center case; Chief Justice of the Supreme Court of Ghana’s creation of the Human Rights Division of the Ghana High Court; and the institution of a sexual crimes division—Liberia’s Court ‘‘E’’—by the Liberian legislature. Moreover, high courts in Africa have demonstrated their willingness to adjudicate cases using regional and international law. For instance, in Kaunda v. President of the Republic of South Africa, the case turned on whether South African mercenaries who had been captured in Zimbabwe and threatened with prosecution and capital punishment after an unfair trial in a third state could claim diplomatic protection from South Africa, i.e., could claim a right to be extradited back to South Africa. In 1990 Benin’s Constitutional Court determined that the ACHPR was an ‘‘interpretive tool’’ for the constitution, including its ‘‘freedom to associate’’-related provision. In 2001 the Botswana High Court in Unity Dow employed international human rights law to challenge the constitutionality of its 1982 Citizenship Act, and in the 2000 Windhoek Prison case, the Namibian Supreme Court used the International Convention on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) to determine that chains or mechanical restraints violated a person’s right to dignity, and his or her right not to be tortured or subjected to degrading and inhumane treatment. While these courts and cases provide only a brief snapshot of the various ways in which international law has been and is being used by African judiciaries, it is important to note that this phenomenon is not exceptional. While few know about the impact of international law on domestic courts, much less is known about the normative force that truth and reconciliation commissions have played in fashioning and domesticating international rules. Hence the forgoing analysis will focus on the various and distinct ways in which the Liberian TRC not only applied and domesticated international law, but also how it made a normative contribution to the practice of truth commissions and transitional justice, namely the human rights protective regime. Before I embark in this intellectual exercise, however, it is important briefly to highlight the mission and mandate of the ITAC and TRC, as well as their use of international law to fulfill their mandate as quasi-judicial mechanisms
Law Day Oral Argument Session Fifth District Court of Appeal, 2010
Get PDFAs part of Law Day activities, a three judge panel hear appellate oral arguments on a first-degree murder case, a contract dispute, and a sexual battery and false imprisonment case, in the FAMU College of Law\u27s Ceremonial Moot Courtroom. The Court entertains questions from the gallery regarding the appellate process and organization of the appellate court following each argument.https://commons.law.famu.edu/law-day/1003/thumbnail.jp
Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time
Get PDFThe climate justice movement seeks to provide relief to vulnerable communities that have been disproportionately affected by climate change impacts. Public nuisance litigation for climate change impacts is a new and growing field that could provide the legal and policy underpinnings to help secure a viable foundation for climate justice in the United States and internationally. By securing victories in the court system, these suits may succeed where the domestic environmental justice movement failed in seeking to merge environmental protection and human rights concerns into an actionable legal theory. This Article first examines the nature and scope of the climate change impacts that are affecting vulnerable populations throughout the world. It then traces the evolution of public nuisance claims for climate change impacts, discusses the Native Village of Kivalina v. Exxon Mobil Corp. case as a turning point in the evolution of these claims, and considers what obstacles remain on the path toward success for Kivalina and similar suits in the United States and abroad. The Kivalina case involves the right set of facts and legal theories to afford a remedy to victims who are disproportionately affected by climate change. Ultimately, the Kivalina litigation could help to institutionalize climate justice claims as part of the post-Kyoto Protocol framework by recognizing a private right to be free from climate change impacts that threaten the sustainability of vulnerable communities
NEPA, National Security, and Ocean Noise: The Past, Present, and Future of Regulating the Impact of Navy Sonar on Marine Mammals
Get PDFor several decades, and in a variety of contexts, national security and environmental protection interests have clashed. Balancing these competing concerns is a challenging task. However, in the wake of the tragic events of September 11, 2001, the U.S. government “drastically changed its approach to how it handled important environmental concerns in relation to nationaldefense issues. The most common manifestation of the tensions between national security and environmental protection objectives is the Navy’s use of sonar in U.S. waters. The oceans that surround the United States on both coasts provide the U.S. Navy with an indispensable buffer zone in which to test and implement national security objectives. Advancing these important objectives for thesafety and welfare of the nation’s citizens must, however, be tempered by the equally compelling need for vigilant stewardship of marine living resources.Part 1 of this article considers the importance of the Navy’s use of sonar to promote national security objectives and reviews the impacts that this practice has on marine mammals. Part 2 provides a brief history of cases under the National Environmental Policy Act (NEPA) challenging the Navy’s use of sonar and its impacts on marine mammals. It also addresses the emergency exception under NEPA and how the Navy’s assertion of this exception set the stage for the conflict in Winter v. NRDC. Part 3 addresses the U.S. Supreme Court’s controversial decision in Winter and considers the unanswered questions that remain in its wake. Part 4 proposes possible futuredirections for regulating Navy sonar in the wake of Bush era national security policies. It concludes that the Marine Mammal Protection Act (MMPA) should be amended to include a citizen suit provision to enhance protection of marine mammals from the effects of ocean noise in a manner that does not undermine national security objectives. It also endorses the need for additional substantive safeguards such as regional cooperation and safe havens for marine mammalsin new legislation and regulations that go beyond the piecemeal “temporary fix” of protection for marine mammals that can be secured in a successful NEPA challenge
Peek-a-Boo I See You: The Constitution, Defamation Plaintiffs, and Pseudonymous Internet Defendants
Get PDFCorrecting Mismatched Authorities: Erecting a New Water Federalism
Get PDFIn the United States water law is a subset of property law that controls the use and allocation of the water resource. Water law was, and remains, state law; nothing in the Constitution purports to change that. The scope of federal sovereignty at the time of nationhood did not include even the possibility of playing a major role in regulating resources because the national government was not a significant landholder. The twentieth century changed water federalism dramatically. In the twentieth century, even while laws and rhetoric respected the division of authority favoring the states, the real power over water in most basins passed into the federal government\u27s programmatic and regulatory control, creating a mismatch of supposed authority and actual power over water. Now, at the outset of the twenty-first century, federal control of federal projects and programs greatly reduces the sphere of influence of state water law and the ability of the states to allocate water to the uses that best serve their respective public interests. The federal imperatives that may have justified that shift when the relevant laws were enacted are now half a century old and seem out of touch with the modem reality of water management. A new statute that employs a structure similar to that of the Coastal Zone Management Act of 1972 will put the states back in control of the water and concurrently use federal authority in a role for which it is well suited
