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Volume XXII Summer 2004 Number 2

SYMPOSIUM

The Reagan Doctrine, the 2003 Invasion of Iraq, and the Role of a Sole Superpower
Anthony S. Winer

Publicly stated "doctrines" of foreign policy, officially enunciated by Presidents or their representatives, can be valuable for helping to establish predictability and develop the opinio juris of customary international law. President Bush announced a foreign policy "doctrine" with the issuance of his much-discussed "National Security Strategy of the United States" in September 2002. This recent "doctrine" can be usefully compared with the so-called "Reagan Doctrine" of the 1980's. Such a comparison yields the conclusion that the Bush National Security Strategy is in important respects a more radical assertion of U.S. prerogatives than was the Reagan Doctrine. This may signal somewhat contradictory implications for the future status of the U.S. as a sole super-power. On the one hand, a position of strategic primacy may provide the United States with a degree of dominance that encourages the public enunciation of foreign policy doctrines. Other things being equal, this can have the salutary effects on predictability and opinio juris noted above. On the other hand, the same strategic primacy may encourage the United States, as a substantive matter, to stake out positions that are more problematic under international law.


Use and Abuse of the Laws of War In the "War on Terrorism"
Marco Sassòli

Legal arguments made by the U.S.administration in the current "war against terror" raise fundamental questions for the laws of war and their relationship with International Human Rights Law (IHRL), domestic constitutional rights, and criminal legislation. Traditionally, States avoided recognizing that the laws of war applied to non-State actors fighting against them, fearing that such recognition would provide a certain status and certain rights to their enemies. They preferred to deal with the situation under domestic law—and could not deny that IHRL applied. Since September 11, 2001, the United States declared a "war against terror" without temporal and geographic limits or distinctions, in which it claims to have the rights of a party to an international armed conflict and that those rights override international and domestic human rights and legislation. It argues that its enemies in that war are "unlawful combatants." As such they may be attacked, like combatants, at any time until they surrender, but do not benefit from combatant and therefore prisoner of war status when captured. Nor are they, it is argued, civilians under the laws of war. This Article argues that all parts of this line of argument by the U.S.administration are either contrary to existing international law or correct only for some persons in some circumstances other than those currently discussed. It considers that it is furthermore neither possible nor desirable to elaborate a new law along the lines suggested by the administration and that the "war against terror" can be efficiently conducted under the existing laws of war.


Prospects for Human Rights Advocacy in the Wake of September 11, 2001
Juan E. Méndez & Javier Mariezcurrena

More than two years after the terrorist attacks on New Yorkand Washington, there is now more clarity about what to expect of their effects on the struggle for human rights worldwide. We are immersed in a "war-without-end against terrorism," which includes an assault on international human rights law. This assault is sometimes rhetorical, but it also includes specific policies and practices that threaten to undermine the normative and ethical bases of the human rights movement. Within the United Statesand allied countries, we witness the weakening of legal safeguards for the exercise of civil liberties, as well as some more flagrant violations of individual human rights.

This Article offers a look of the U.S. human rights policy in a unipolar world. Particularly, it considers U.S.exceptionalism at three levels: regarding the international human rights law, in relationship with the war in Iraq, and at home—in respect to the erosion of public liberties in the United States. The Article explores the prospects for human rights work from the perspective of the human rights movement, and the challenges they pose. Finally, the article suggests possible actions or strategies that may help improve the current situation, or that at least limit its most pernicious effects.


India's "Pattriot Act": POTA and the Impact on Civil Liberties in the World's Largest Democracy
Jayanth K. Krishnan

Following the September 11th attacks in the United States, President Bush signed into law the anti-terrorism measure known as the Patriot Act. The Patriot Act, according to some, has sought to curb, if not prevent, future terrorist acts by expanding the government's surveillance powers over potential terrorist suspects. Three months after the attacks in New York, Washington D.C., and Pennsylvania, India—the world's largest democracy and a strong U.S. ally in Asia in the war on terrorism—experienced one of its most significant terrorist attacks to date. In December 2001, Muslim extremists attacked the Indian national parliament killing several people and placing the country into a heightened state of alert. The Indian central government the following year passed the Prevention of Terrorism Act (POTA), a measure that enhanced the Indian state's ability to crackdown on possible terrorist threats. Yet, while much has been written in the West on the Patriot Act, little is known about the extent to which POTA might be affecting the civil liberties and civil rights of people within this leading democracy in the developing world. This article thus seeks to offer an analysis of POTA by discussing its history; the arguments made on behalf of the law by its supporters; its certain parallels to the Patriot Act; and its potentially damaging effects on minority rights.


Formal Legality and East African Immigrant Perceptions of the "War on Terror"
Elizabeth Heger Boyle & Fortunata Ghati Songora

Shortly after the September 11th terrorist attacks, United States President George W. Bush declared a "war on terror." Although Bush has repeatedly stated that the war on terror is not a war on immigrants, collateral damage to refugees and asylees is irrefutable. Because the meaning of law ultimately emerges not only from formal texts, but also from public perceptions and reactions, we interviewed ninety-three recent East African immigrants to the Minneapolis and St. Paul, Minnesota to determine their understanding of this "war." The immigrants we spoke with noted that since September 11th, 1) their fears of deportation have increased, 2) the immigration bureaucracy has slowed to a crawl, jeopardizing their migration status as well as their hopes of family reunification, and 3) racial, ethnic, and religious discrimination has increased in both the public and private spheres. The immigrants we spoke with are reacting to these threats by maintaining low political profiles and seeking American citizenship. In light of our findings, we believe the most important task for policymakers is to clarify the legal mandate of the war on terror. Policymakers should provide more counseling and education to immigrant groups, in their native languages, to explain clearly how to maintain legal status and how the government makes decisions about detention and deportation. In addition, policymakers should continue to work with immigrant groups to fight against religious and racial discrimination of all types. Finally, policymakers must understand how the motivations and backgrounds of immigrants may keep them from speaking out against certain policies that are antithetical to the fundamental freedoms which U.S.citizens cherish. These steps will minimize collateral damage to immigrants who have done nothing to threaten the safety of the country.


Public International Law: An Anchor in Shifting Sands
Fred L. Morrison

Public international law regulates the interactions, moderates the conflicts, and resolves the controversies of States. It creates mutual expectations that form the basis for international peace and security. The modern international law system, however, is based upon concepts founded in a long history of customary conventional law, now articulated in the Charter of the United Nations. It assumes that member States would control all other actors—including individuals and groups. It was also presumed that the careful balance of peace—or terror—between the United States and the Soviet Union, checked by the three other permanent members of the security council, would maintain the foundation for which the system could operate.

The decline of the Cold War and rise in non-state actors has altered this careful balance, requiring new balances and equilibriums to be found. Thus, international law is at a crucial junction where it may either alter its structure and adapt to changing international norms, or it may hesitate, fighting to continue along its historic path only to then splinter in its attempt to apply inapplicable tenets to new situations. This article suggests that the success of international law is conditional on the willingness of member states to adjust to these changing norms and allow the legal order to dramatically evolve with changing times.


ARTICLES

South Dakota Farm Bureau, Inc. v. Hazeltine: The Eighth Circuit Abandons Federalism, Precedent, and Family Farmers
Christy Anderson Brekken

Amendment E to the South Dakota Constitution, passed in 1998, prohibits corporations from owning farmland and otherwise engaging in farming in South Dakota, with certain exceptions. Eight other states have similar progressive, pro-family farm laws intended to mitigate the impacts on rural communities associated with the trend toward corporate concentration in the agricultural industry. On August 19, 2003, the Eighth Circuit held that Amendment E to the South Dakota Constitution violates the dormant Commerce Clause, finding that voters approved the amendment with the purpose of discriminating against out-of-state interests.

The Eighth Circuit's ruling represents a dramatic shift in dormant Commerce Clause jurisprudence, eroding a state's power to regulate its local economy and the corporations that operate within its borders. First, the court departs from the deference owed to state laws under principles of federalism and separation of powers, which seriously undermines a state's power to legislate for the health, safety and welfare of its people. Second, the court disregards and misconstrues established dormant Commerce Clause jurisprudence. Finally, if Hazeltine stands, this precedent will be used to strike down other progressive, pro-family farm laws, not to mention other state laws that regulate local economies and the operation of corporations within a state's borders.


Emotions and Standings for Animal Advocates after ASPCA v. Ringling Bros. & Barnum & Bailey Circus
Jonathan Krieger

Since the late 1970s, advocates have challenged federal laws and regulations which impact animals. Animal advocates have relied on a theory of aesthetic injury first developed in environmental cases to gain standing to sue. Until recently, courts have rejected claims based on emotional interests in animals. In ASPCA v. Ringling Bros. & Barnum & Bailey Circus, the D.C. Circuit for the first time granted standing to a plaintiff based on an emotional attachment to an animal. This article argues that the ASPCA court was right to recognize emotional interests as a basis for standing, but wrong in characterizing the injury as aesthetic. It argues that an accurate theory of standing based on emotional injury will acknowledge the voice of advocates, distinguish some environmental cases from animal cases, and answer several criticisms made against the aesthetic theory of standing.


 
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