• A Collective Response to Mass Violence: Reparations and Healing in Cambodia

      Van Schaack, Beth; Ramji-Nogales, Jaya (2005)
      This piece (authored by Jaya Ramji-Nogales) examines an area long neglected in current discussions of Khmer Rouge accountability-reparations for victims. It discusses the Khmer Rouge tribunal law's silence on this matter and presents several arguments, drawing on international human rights law, for the tribunal's awarding of reparations notwithstanding this textual blindspot. The chapter then reviews the various goals reparations can achieve-restitution, rehabilitation, and reconciliation; the types of reparations that can be awarded; and the mechanisms, individual versus collective, that can be used to distribute reparations. Turning to the Cambodian context, it emphasizes the need for a comprehensive study to understand the opinions of Cambodians with respect to reparations. The piece concludes by suggesting several alternative approaches to reparations that are sensitive to Cambodian attitudes and the unique Cambodian cultural context.
    • A Functionalist Approach to Comparative Abortion Law

      Rebouché, Rachel (2014)
      This chapter critiques the present comparative methodology in abortion law and explores the possibilities of a new comparative approach. The current method relies on high-­ profile but dated constitutional abortion decisions from the United States and Germany. Courts continue to rely on these cases to justify their decisions as consistent with a modern, global convergence around women’s rights and to minimize national resistance to contested law reform. These comparisons, however, oversimplify legal developments of the past forty years by focusing on constitutional norms and legislative regimes, rather than on the relationship between abortion law and practice.
    • A human rights framework for the Anthropocene

      Sinden, Amy (2019-12-04)
      Calls for recognition of a human right to security from climate disruption have become more common, from both courts and scholars. But such a right has a far better chance of being effective – substantively and rhetorically – if grounded in the civil and political rights tradition, rather than the second or third-generation rights of the post-Second World War era. This chapter begins to sketch out some arguments that would situate a human right to climate security squarely in the civil and political rights tradition by connecting that new right to the fundamental values and concerns that have always animated that tradition. Whether one views those values as centrally concerned with the maintenance of individual autonomy and dignity or with protecting the integrity of the democratic process, civil and political rights are at bottom a response to power imbalance. While many twentieth century theorists have understandably focused on the power imbalance most emblematic of that century’s central moral challenge (that fuelled by prejudice), in constructing a human right for the twenty-first century, we should broaden that lens to encompass the other forms of power imbalance driving the climate crisis: between wealthy corporate interests and the poor and powerless; between us and future generations or other species; and between the functioning governments of the globe that possess the unique power to tackle this textbook collective action problem and individual citizens.
    • An Emerging Human Right to Security from Climate Change: The Case Against Gas Flaring in Nigeria

      Sinden, Amy (2009)
      Most of the oil wells in Nigeria are accompanied by a raging flame that burns twenty-four hours a day, reaching hundreds of feet into the sky, killing the surrounding vegetation with searing heat, emitting a deafening roar, and belching a cocktail of smoke, soot, and toxic chemicals into the air along with a potent mixture of greenhouse gases. In 2005, the Federal High Court of Nigeria ruled that the widespread practice of gas flaring by Shell and other oil companies in the Niger Delta constituted a human rights violation. This may be the first court ruling anywhere in the world to suggest that there is a human right to security from climate change. Such a right is warranted. It actually fits comfortably within the principles and values that underlie some of the oldest and most venerated rights in the civil and political rights tradition. Even though that tradition was born over two hundred years ago, long before anyone could have conceived of the idea of climate change, this problem - at least in its political aspects - is exactly the kind of problem that civil and political rights are aimed at combating. It is a problem that arises fundamentally from the distortion of government decision making by power. Nor does the fact that the actions complained of here were committed by private actors take this case outside the rubric of human rights. Even under traditional doctrine, the close relationship between Shell and the Nigerian government in this case may well warrant a finding of liability against Shell for acting in concert with the State. But even in cases where no joint venture with the government can be proved, it may be appropriate to hold the multi-national corporation liable. The same concerns that animated the conceptualization of civil and political rights in the eighteenth century as rights against the State, warrant the imposition of such rights directly against multinational corporations in the twenty-first century, when such corporations wield more wealth than many countries and the power of multinationals to affect the conditions of daily existence for individuals often rivals that of government.
    • An Expressive Rationale for the Thematic Prosecution of Sex Crimes

      deGuzman, Margaret M. (2012)
      This essay examines the philosophical justifications for giving priority to sex crime prosecutions at international courts. Despite the increased focus on prosecuting sex crimes in recent years, no effort has been made, either at the tribunals or in the scholarship, to develop such justifications. Those who prosecute and write about sex crimes generally assume that international courts should focus particular attention on such crimes. Commentators sometimes point to the practical and institutional benefits of thematic sex crime prosecutions. Such prosecutions can, for example, increase an institution’s capacity to address sex crimes by developing relevant investigative and prosecutorial expertise and expanding the applicable law. But a prior normative question must be addressed: why should international courts give priority to sex crimes when allocating scarce resources? I argue that the philosophical grounding for thematic sex crime prosecutions must be found in the underlying purposes of international criminal courts. While the moral justifications of international prosecutions are widely disputed, there are four primary contenders: retribution, deterrence, restoration, and expression. In the first part of the essay, I explain why none of the first three theories precludes giving priority to sex crime prosecutions. In fact, each theory supports such prosecutions, at least under some circumstances. I then explain that the strongest justification for giving priority to sex crimes is found in the expressive rationale for international criminal law. In other words, if international criminal law aims to express global norms it should often seek to promote the norms against sex crimes even at the expense of other important norms. The need for such special emphasis lies in the history of under-enforcement of sex crimes in both national and international for a as well as in the discriminatory expression inherent in the crimes themselves.
    • Bespoke Transitional Justice at the International Criminal Court, in Contested Justice: The Politics and Practice of International Criminal Court Interventions

      Ramji-Nogales, Jaya (2015)
      This chapter grapples with the question of whether the International Criminal Court (ICC) should be conceptualised as a mechanism of transitional justice. Most theorists insist that transitional justice is either an inappropriate or an unrealistic goal for the Court. Some scholars have proposed that the Court might more accurately be theorised as seeking to achieve political goals through ‘juridified diplomacy’. Others suggest that the Court should speak to a global, rather than local, audience. A third school of thought criticises international criminal law as insufficiently focused on the preferences of societies affected by mass violence. Going one step further, some theorists suggest that the Court should be set aside in favour of mechanisms that are more responsive to local preferences. Although the incorporation of the ICC into a locally owned transitional justice paradigm faces substantial challenges, this chapter draws on a theory of ‘bespoke transitional justice’ to suggest ways in which this knotty relationship might be better designed.
    • Complementarity at the African Court

      deGuzman, Margaret M. (2019-05)
      The proposed African Criminal Court, which will form part of the African Court of Justice and Human and Peoples’ Rights, is designed to be complementary to national courts in Africa, as well as to sub-regional courts with criminal jurisdiction. This book chapter analyzes the complementarity provision of the statute of the proposed court, which largely replicates article 17 of the Rome Statute of the International Criminal Court (ICC). It seeks to elucidate the likely relationship between the proposed African Court and the ICC, as well as between the African Court and national and regional courts in Africa. The chapter then addresses the normative question of how the proposed African Court should interact with these other institutions. While a great deal of theoretical work remains to be done in this area, the chapter suggests that as regional and sub-regional criminal courts such as the proposed African Court emerge, they should not be viewed as forming a jurisdictional hierarchy, with national courts at the top and the ICC at the bottom, but rather as providing a menu of adjudicative options. Jurisdictional priority should be decided by balancing a range of factors from practical considerations such as ease of obtaining evidence and custody, to defendants’ rights. Particular attention should be paid to the interests of each institution’s constitutive community in adjudicating a particular case. In this way, national, regional, and international criminal courts can truly complement each other.
    • Law's Guilt about Literature

      Baron, Jane B. (2005-06-06)
      This essay addresses the theme of guilt in law and literature from the law side. It argues that the legal academy's flirtation with literature reflects two forms of guilty uneasiness. The first relates to the question whether lawyers should be reading literature at all. This is a methodological anxiety. It presumes a distinctly legal method of analyzing legal issues, in which literature does not have a truly legitimate role. The second anxiety is substantive. It presumes that law has an identifiable content, one that excludes much that appears in literature. Both presumptions are, I argue, questionable and make sense only if law is viewed as primarily doctrinal. Fundamentally, these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is “interdisciplinary” about the law and literature enterprise. Developing an honest form of “interdisciplinarity” will be difficult if not impossible because it requires an examination of usually unstated assumptions about the uniqueness of law.
    • Power and responsibility: why human rights should address corporate environmental wrongs

      Sinden, Amy (2009-09)
      This chapter attempts to construct a normative justification for the imposition of human rights duties on transnational corporations (TNCs) that commit environmental wrongs in the developing world. Under the now near-hegemonic worldview of welfare economics, TNCs are analogised to individuals competing in the marketplace and thus placed squarely on the private side of the public/private divide. If we step outside of the economic worldview, however, and recognise the extent to which the normative justifications for civil and political human rights have traditionally been rooted in a perceived need to counteract the imbalance of power between the individual and the state, it becomes clear that it is frequently far more appropriate to treat TNCs as like states than like individuals. Many TNCs, after all, wield more power and resources than many states. Accordingly, at least where one of two sets of factual circumstances exist, human rights duties should be imposed directly on TNCs for environmental harms: 1) where the state has become so weak and/or corrupt as to be non-functional, or 2) where the TNC has so much power and influence within the domestic government that it essentially controls state decision-making.
    • The Future of Medical Music Therapy In Neuro-Rehabilitation

      Arts & Quality of Life Research Center (Temple University) (2016)
      "Acquired Brain Injury (ABI) is an umbrella term that includes a range of conditions stemming from rapid onset of brain injury. The underlying causes range from: traumatic injuries, caused by head injury or postsurgical insult; vascular accidents including hemorrhagic or ischemic strokes and subarachnoid hemorrhage; cerebral anoxia caused by a starvation of oxygen within the brain; toxic or metabolic events such as hypoglycemia; and viral infection or inflammation (Royal College of Physicians, 2004). Other conditions that involve acquired brain injury to some degree, but follow a different trajectory from ABI from rapid onset and may be neuropalliative in nature, include Parkinson’s Disease, Multiple Sclerosis, Huntington’s Disease and Amyotrophic Lateral Sclerosis/Motor Neurone Disease (also known as Lou Gehrig’s Disease). The purpose of rehabilitation with people with rapid onset ABI is to restore the person’s functioning to levels comparable to those the person had prior to brain injury, and to enable optimal levels of independence. This is different from the goal of rehabilitation with a person with a degenerative disease. In these cases, the purpose of rehabilitation is to maintain the person’s current level of functioning for as long as possible and to provide technological aids as functional levels degenerate. This paper will only discuss music therapy with people with ABI from non-degenerative causes."
    • The Future of Technology in Music Therapy: Towards Collaborative Models of Practice

      Arts & Quality of Life Research Center (Temple University) (2016)
      "There is a growing interest in the field of music therapy and the use of technologies. The books, Music Technology in Therapeutic and Health settings (Magee, 2013), and Music, Health, Technology and Design (Stensæth, 2014) are recent examples of this. They reveal that music therapy is rapidly moving into new areas where the use and understanding of – as well as the need for – technology in clinical practice, assessment, theory and research collaboration is explored. In these publications, there are examples of how (computer) technology is becoming an efficient way to analyze improvisations in sessions (Erkkilä, Ala-Ruona & Lartillot, 2014), and how interdisciplinary research collaboration between music therapists and technology professionals use music therapy theory as a backdrop to explore how musical and interactive media can be developed to promote health and well-being among people with special needs (Cappelen & Andersson, 2011a, b, 2014 ; Stensæth, Holone & Herstad, 2014; Stensæth & Ruud, 2014). Historically, published accounts of using technology in music therapy relate to the adoption of music technology within clinical practice to support and understand the ways in which clients express themselves. In the following sections this particular history is further described. In the last part of this chapter we will present an ongoing, interdisciplinary research collaboration project to exemplify one of many potential models for the future of technology in music therapy."
    • The Virtues of Public Education

      DeJarnatt, Susan L. (2009)
    • The “Preference for Pollution” and Other Fallacies, or Why Free Trade Isn’t “Progress” Absent the Harmonization of Environmental Standards

      Sinden, Amy (2008-01)
      The argument that environmental standards must be harmonized among countries involved in free trade in order to ensure a "level playing field" has been prominent in the recent political discourse surrounding globalization and the expansion of international trade. Among academic economists, however, the level-playing-field argument has been widely rejected. In their view, the whole point of free trade is to exploit inherent differences among countries. Differing environmental standards simply reflect the differing preferences for environmental protection among citizens of different countries and, like differences in natural resource endowments, can be exploited via free trade in order to increase overall social welfare. The economists are wrong in rejecting the level playing field argument, however. While it may be true that free trade without harmonization will increase social welfare in the ideal world of economic theory, there is little reason to think that it will do so in the real world. In particular, the economists' claim depends on the untenable assumption that the countries involved in free trade all set and enforce environmental standards at economically optimal - or efficient - levels. If we instead make the far more realistic assumption that environmental standards in one or more countries either are set too low to begin with or are under-enforced, the economists' claim - that free trade increases social welfare - no longer holds. Basic tenets of political and economic theory make clear that political and market dynamics tend systematically to skew environmental standard-setting and enforcement to sub-optimal levels. And where that is true, free trade between countries with differing standards is likely to decrease overall social welfare. Therefore, in order to avoid these negative welfare effects, upward harmonization of environmental standards should be a pre-requisite to free trade.