What's Happening to the Right to a Fair Hearing

2008 ◽  
Vol 41 (3) ◽  
pp. 522-544
Author(s):  
Arthur Chaskalson
Keyword(s):  
United States ◽  
Human Rights ◽  
Due Process ◽  
The United States ◽  
Protection Of Human Rights ◽  
Fair Hearing ◽  
The Right ◽  
And Behavior ◽  
Attitudes And Behavior ◽  
The Impact

The policies of the U.S.—developed in response to the threat of terroism have been criticized. This is of importance, not only because of the harm it does to the United States own reputation, but because of the influence such measures have on other countries with less commitment to the protection of human rights than the United States has historically had. It is, however, a crucial issue because of the impact that such policies can have on the political will of the international community to respect and promote half a century of endeavor to build an international human rights culture, and on attitudes and behavior in countries affected by such measures. The exception becomes the rule; the temporary becomes permanent; and fairness and due process cease to have the meaning they once had. This Article's remarks are directed to the right to a fair hearing which must be seen, however, in a broader context as a concern about a discourse which, whilst retaining the label, seeks to change the content of established principles of human rights.

scholarly journals The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants

2016 ◽  
Vol 4 (4) ◽  
pp. 190-220 ◽  
Author(s):  
Bill Frelick ◽  
Ian M. Kysel ◽  
Jennifer Podkul
Keyword(s):  
United States ◽  
European Union ◽  
Human Rights ◽  
Asylum Seekers ◽  
The United States ◽  
Legal Responsibility ◽  
The European Union ◽  
Migration Flow ◽  
Protection Of Human Rights ◽  
The Impact

Wars, conflict, and persecution have forced more people to flee their homes and seek refuge and safety elsewhere than at any time since the end of World War II. As displaced people and other migrants increasingly move out of the conflict-ridden and less developed regions of their displacement and into relatively rich and stable regions of the world, the countries of destination are increasingly working to contain and even stem the migration flow before it reaches their shores. Perversely, countries that have developed generally rights-sensitive standards and procedures for assessing protection claims of asylum seekers within their jurisdictions have simultaneously established barriers that prevent migrants, including asylum seekers, from setting foot on their territories or otherwise triggering protection obligations. Consequently, those who would otherwise have been able to avail themselves of asylum procedures, social support, and decent reception conditions are often relegated to countries of first arrival or transit that have comparatively less capacity to ensure protection of human rights in accordance with international standards. This paper seeks to develop a working definition of the externalization of migration controls and how such externalization of the border implicates the human rights of migrants, and asylum seekers in particular. Although the majority of those migrants seeking legal protections stay in countries neighboring their own, hundreds of thousands continue their journeys in search of protection and stability in more distant states, including in the European Union, the United States, and Australia. In response to the significant increase in asylum seekers arriving at their borders, all three entities have significantly increased deterrence measures with the hopes of keeping new arrivals from entering. This paper will thus highlight a number of the most troubling externalization strategies used by the European Union, the United States, and Australia. Finally, because rights-threatening externalization law, policies, and practices implicate the international legal responsibility of the destination states pursuing them, the paper will conclude by presenting recommendations that could strengthen protection of human rights in the context of state actions seeking to manage migration.

scholarly journals Gender, Violence, and Trauma in Immigration Detention in the United States

Social Work ◽  
2020 ◽  
Author(s):  
Laurie Cook Heffron
Keyword(s):  
United States ◽  
Human Rights ◽  
Due Process ◽  
The United States ◽  
Economic Security ◽  
Human Rights Violations ◽  
Immigration Detention ◽  
The Us ◽  
The Impact ◽  
Detention Facilities

While international law protects the rights of individuals to seek asylum and to be treated humanely and with dignity, immigration detention, the practice of confining individuals accused of violating immigration law, has surfaced as a growing response to the large numbers of individuals and families on the move throughout the world in search of freedom, safety, and economic security. Detention has long been used as a strategy for enforcement of immigration laws across the globe, and has also been used as a tactic to dissuade and control future migration. The detention of immigrants consistently presents concerns about and allegations of civil and human rights violations and negative bio-psycho-social impacts on those detained. Given the contemporary expansion of the immigration detention system in the United States, this bibliography will focus primarily on the context of immigration detention within the United States. This bibliography includes selected scholarly resources from the social sciences, health, and legal fields to present an overview of immigration detention, the impact on survivors of violence and trauma, and detention alternatives. While the Global Detention Project and other nonprofit organizations aim to track the scope of immigration detention worldwide, numbers of individuals detained, as well as the number and location of detention facilities, immigration detention remain difficult to track. In the United States, the average daily population of immigration detention facilities in the United States had increased from 6,785 in 1994 to more than 38,000 in 2017. That number has risen to closer to 50,000 in recent years and manifests across a wide variety of facilities, including temporary and long-term holding facilities operated by a host of federal, state, local, and private for-profit entities. The US government has broad, though not absolute, power over immigration and immigration detention. Authorization of the detention of immigrants dates back to 1798 with the Alien Enemies Act, which allowed for the detention of immigrants from “hostile” countries during times of war. As of 1875, another series of laws expanded the framework of detention, in particular pertaining to the incarceration of individuals with criminal convictions. Further changes were made in 1952 with the Immigration and Nationality Act, then more drastically in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which served to begin a decades-long expansion of the US immigration detention system. This expansion has also led to numerous allegations of civil and human rights violations related to due process, exploitative labor practices, sexual and physical abuse, and inadequate medical care, as well as growing concern about the impact of immigration detention on survivors of violence and trauma, particularly children, women, and LGBTQ communities. The author would like to acknowledge the significant contributions of Jessenia Herzberg in researching and reviewing literature on immigration detention.

scholarly journals À la recherche d'une protection efficace contre les inspections abusives de l'État : la Charte québécoise, la Charte canadienne et le Bill of Rights américain

2005 ◽  
Vol 27 (4) ◽  
pp. 723-784
Author(s):  
Lucie Angers
Keyword(s):  
United States ◽  
Human Rights ◽  
The United States ◽  
The State ◽  
Private Life ◽  
Search And Seizure ◽  
Bill Of Rights ◽  
Protection Of Human Rights ◽  
The Right ◽  
Proper Operation

Many laws in Canada and Québec grant rights of entry to inspectors responsible for looking after the proper operation of structures implemented by the State. From heavily regulated industrials to permit holders and simple citizens, everyone can expect someday to be paid a visit by an inspector. The question arises, however, as to whether the Canadian Charter of Rights and Freedoms and the Québec Charter of Human Rights and Freedoms may be resorted to so as to exercise control over possible abuses resulting from such inspections. These Charters provide security for the person against the State in these areas whether through the right to be protected from unreasonable search and seizure, the right to a private life or to the inviolability of the home. However, the means by which such rights shall be adequately protected are somewhat uncertain. Should this be done by the granting of an administrative warrant issued ex parte as in the United States ? Or by granting the same kind of warrant in the presence of both parties ? The granting of administrative subpoenas also may be a solution to be considered. But for both legal and administrative reasons, it seems that the best control to exercise over these entries would come from drafting well-defined powers of inspection into the law granting them, which would provide an adequate protection of human rights and freedoms.

The Post-Deportation Human Rights Project: Participatory Action Research with Maya Transnational Families

2012 ◽  
Vol 34 (1) ◽  
pp. 22-26 ◽  
Author(s):  
M. Lykes ◽  
Erin McDonald ◽  
Cesar Boc
Keyword(s):  
United States ◽  
Human Rights ◽  
New England ◽  
Well Being ◽  
The United States ◽  
Immigrant Parents ◽  
Transnational Families ◽  
Southern New England ◽  
Immigrant Organizations ◽  
The Right

As the number of immigrants in the United States has increased dramatically in recent decades, so has the number of human rights violations against immigrants in the form of arrests without warrants, detention and deportation of parents without consideration of the well-being of their children, and incarceration without bail or the right to a public attorney. The Post-Deportation Human Rights Project (PDHRP) at Boston College was developed to investigate and respond to the legal and psychological effects of deportation policies on migrants living in or deported from the United States. This unique multidisciplinary project involves lawyers, social science faculty, and graduate students—all of whom are bilingual, one of whom is trilingual, and many of whom are bicultural—working together in partnership with local immigrant organizations to address the psychosocial impact of deportation on Latino and Maya families and communities. Our work includes psycho-educational and rights education workshops with immigrant parents and their children in southern New England as well as a cross-national project based in the U.S. and Guatemala supporting transnational families through participatory research, educational workshops, and legal resources.

The Movement

2012 ◽  
Author(s):  
Aryeh Neier
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
Eighteenth Century ◽  
Human Rights ◽  
Driving Force ◽  
The United States ◽  
Feminist Movement ◽  
Human Rights Movement ◽  
Protection Of Human Rights ◽  
National Boundaries

This chapter explains that the driving force behind the protection of human rights worldwide, today and for roughly the past thirty-five years, has been the nongovernmental human rights movement. Intermittently during the last two-and-a-half centuries, citizens' movements did play important roles in efforts to promote human rights, as during the development of the antislavery movement in England in the eighteenth century and the rise of the feminist movement in the United States in the nineteenth century. The contemporary human rights movement responds to victories and defeats by shifting focus from time to time, but it shows signs that it will remain an enduring force in world affairs. Efforts by those outside governments have been particularly important in extending the protection of rights beyond national boundaries, and it is in the present era that they have been most significant.

scholarly journals The Strange Fruit of the Tree of Liberty: Lynch Law and Popular Sovereignty in the United States

2020 ◽  
Vol 18 (3) ◽  
pp. 819-834
Author(s):  
Michael Gorup
Keyword(s):  
United States ◽  
African Americans ◽  
Due Process ◽  
The United States ◽  
Popular Sovereignty ◽  
Modern Democracy ◽  
Constituent Power ◽  
The People ◽  
The Right

Lynch mobs regularly called on the language of popular sovereignty in their efforts to authorize lynchings, arguing that, as representatives of the people, they retained the right to wield public violence against persons they deemed beyond the protections of due process. Despite political theorists’ renewed interest in popular sovereignty, scholars have not accounted for this sordid history in their genealogies of modern democracy and popular constituent power. I remedy this omission, arguing that spectacle lynchings—ones that occurred in front of large crowds, sometimes numbering in the thousands—operated as public rituals of racialized people-making. In the wake of Reconstruction, when the boundaries of the polity were deeply contested, spectacle lynchings played a constitutive role in affirming and circulating the notion that the sovereign people were white, and that African Americans were their social subordinates.

Benign Discrimination and the Right to Equality

1974 ◽  
Vol 6 (1) ◽  
pp. 26-83 ◽  
Author(s):  
Gareth Evans
Keyword(s):  
United States ◽  
Human Rights ◽  
The United States ◽  
Preferential Treatment ◽  
Apparent Paradox ◽  
Supreme Courts ◽  
Formal Expression ◽  
Gareth Evans ◽  
The Social ◽  
The Right

Governments have been increasingly preoccupied with the task of reconciling claims to preferential treatment with the principle of equality. The social and philosophical issues raised by this apparent paradox are considered, and the compatibility of benign discrimination with the concept of equality demonstrated by developing a complex normative notion of equality. An analysis is then undertaken of the various attempts made by lawyers, in nearly one hundred existing bills of rights, to give formal expression to these principles. Ultimately the problem of benign discrimination falls for resolution by the courts, and the jurisprudence developed in this respect by the Supreme Courts of Canada and the United States is critically discussed and compared. Having exhaustively developed an appreciation of world experience regarding the interaction of bills of rights equality clauses and benign discrimination, consideration is given to the formulation of the Australian Human Rights Bill—a bill of which Gareth Evans was one of the principal draftsmen.

Public Deficits and Surpluses in Federated States: A Review of the Public Choice Empirical Literature

2004 ◽  
Vol 22 (3) ◽  
pp. 123-145 ◽  
Author(s):  
Louis M. Imbeau
Keyword(s):  
United States ◽  
Public Choice ◽  
The United States ◽  
Empirical Literature ◽  
Systematic Observation ◽  
Economic Cycles ◽  
German Länder ◽  
Canadian Provinces ◽  
The Right ◽  
The Impact

Abstract The purpose of this paper is to review the empirical public choice literature explaining deficits levels in federated states. First, I describe theoretical constructs, showing how new theories have developed by releasing one of the basic Ricardo-Barro assumptions. Empirical results bearing on the federated states of Australia, Canada, Germany, Switzerland, and the United States are then reviewed to assess which hypothesis, in which setting, is confirmed by systematic observation. On the whole, this literature shows that economic cycles have an impact on budget balances. It also shows that deficits are higher in election years in German Lander, Canadian provinces, and American states, but not in Australian states nor in Swiss cantons. In addition, the literature tends to support the hypothesis that the stringency of budgetary rules is related to higher budget balances in Canada, Switzerland, and in the United States. Finally, government fragmentation has no impact on the budget balances of federated states and parties of the left do not have higher deficits than parties of the right, except in Switzerland where empirical evidence is mixed. Rather, parties of the center or of the right do have higher deficits in German Lander and in Canadian provinces. In the concluding section, I discuss two issues: the impact of rules, and the partisan cycle hypothesis.

scholarly journals Comforted But Not Compensated? Mourners and Funeral Picketing in English Law

2015 ◽  
Vol 17 (3) ◽  
pp. 283-294
Author(s):  
Carolyn Shelbourn
Keyword(s):  
United States ◽  
Canon Law ◽  
United States Supreme Court ◽  
The United States ◽  
Baptist Church ◽  
Westboro Baptist Church ◽  
Active Service ◽  
Day Services ◽  
The Right ◽  
The Impact

In recent years there have been protests at Armistice Day services and at the funeral of Margaret Thatcher, but these events seem insignificant compared to the impact of the ‘funeral picketing’ carried out in the United States by members of the Westboro Baptist Church, principally at the funerals of American forces personnel killed on active service. This has caused considerable distress to family members and wide public outrage. In 2011 the United States Supreme Court held in Snyder v Phelps that the right of freedom of speech of the WBC rendered them immune to claims for damages by mourners affected by their picketing. This article will first consider how English secular and canon law could be used to restrict the practice of funeral picketing and secondly discuss whether current law could provide a remedy for mourners distressed by funeral picketing and other forms of protest at funerals, were they to take place.

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