Rowman & Littlefield Publishing Group

The More Ethical ‘Bottom-Up Approach to Human Rights’.

PART ONE

By Anthony George Ravlich

The Optional Protocol (OP) for the International Covenant on Economic, Social and Cultural Rights which will be open for ratification by States on September 24, 2009, shows the neo liberal dominated global elites at the UN are prepared to deny a number of human rights to further neo liberalism and globalization.

The rights excluded by the OP are the core minimum obligations of the State, the empowerment rights and non-retrogression. However in the exclusion of these rights the global elites have provided a more ethical ‘bottom-up human rights approach’ for the discontented to struggle for and have included in domestic and international law.
Those groups most affected by the exclusion of these rights are the most disadvantaged and the independent peoples. The exclusion of these rights indicates that social control and old ideas represented by the Corporations are much more preferred to new ideas, independence and going forward.

In addition, the exclusion of these rights allows States to ignore the most disadvantaged and focus on the usually lesser violations of human rights suffered by elites. This has also been the case with previous human rights instruments.
The ‘bottom-up’ approach to human rights also includes core minimum obligations with respect to civil and political rights as their exclusion in previous human rights instruments have left the poor voiceless and discriminated against. The ‘bottom-up’ approach, based on my work in the community, anticipated the exclusions of the OP and is described in full in my book, Freedom from Our Social Prisons: The Rise of Economic, Social and Cultural Rights (Lexington Books).

For sixty years economic, social and cultural rights have been held out often by the liberal elites at the international level as a hope for the poor but the present OP now disinherits them. For example, the core minimum obligations of the State includes the right to food, water, shelter, basic health and education and are defined by the UN Committee on Economic, Social and Cultural Rights which states that without these core minimums the covenant loses its ‘raison d’etre’ (General Comment No.3) i.e. if the most serious violations are ignored then human rights become irrelevant.

Also excluded is the empowerment right to development which means that neo liberal States can disregard small business which means people will be less able to help themselves through developing their talents, gifts and new ideas. It also means much higher unemployment. The other empowerment right excluded is human rights education. If educated in both sets of rights the people would be able to hold the domestic and global elites to account at election time. In addition, non retrogression was also excluded enabling the State to curb or reduce human rights at its discretion.

Independent NGOs and even States dissatisfied with neo liberalism can struggle to have the ‘bottom-up’ approach included in domestic and international law.

Anthony George Ravlich is founder and chairperson of the Human Rights Council Inc. in New Zealand and the author of Freedom from Our Social Prisons: The Rise of Economic, Social, and Cultural Rights.

Manga and the Yankii Economy

By John Ingulsrud and Kate Allen

Juvenile delinquency is big business in Japan. It’s not the criminal or motorcycle gang activity itself, but its representation and the attraction of media products that depict it. The origins of the term yankii, according to Patrick Galbraith’s Otaku Encyclopedia, are various. (1) Most date back to the post-World War II days and actually do relate to “Yankee,” in the sense that the delinquents emulated the styles of their American counterparts and lived in neighborhoods with shops that sold US army surplus and other American goods. We sense that it was convenient to label delinquency as something foreign, so that the young people themselves could be seen as good kids.

Yankii stories and products are not new. There has been a steady number of manga devoted to these themes. The difference, according to the tabloid Spa!, is when several kinds of media and consumer products are available at the same time, which tends to happen in times of economic hardship. (2) Yankii stories are full of defiance toward the establishment with characters flouting social norms. Their discontent is directed toward the rich and powerful that perpetuate the situation and they feel no one is going to help people who do not fit in or have trouble in school.

Two films this summer are proving to be blockbusters, Crows Zero II and Rookies. Both are based on long-running manga series by Takahashi Hiroshi and Morita Masanori respectively. Crows Zero II, a sequel to the 2007 film Crows Zero, is proving to be more successful. Rookies, made on the heels of a TV series, is also a box office success. The yankii styles, the bad-look, are also a hit. For example, there is the hip-hop look of Inoue Santa’s Tokyo Tribe series; Crows Zero II has the school uniform look with multiple permutations on the Nehru-cut jacket; Rookies offers more of the same uniform look, plus variations on baseball gear.

Spa! magazine extols the yankii trend by stressing the values of honesty, solidarity, as well as the attention to family and community. They provide examples of former yankiis who have made good. At the same time, the trend also has a troubling side, such as the attributes of violence, vigilantism, and intolerance, plus a penchant for ultra-nationalism. Topics with this kind of edge are found in manga stories. A similar kind of edge is found in works employing moe representations found most often in manga for girls and women. Is moe porn or is it simply a style that fuses the cute, seductive and the pitiful?

Fortunately, Japan has comparatively few violent and sexual crimes. Therefore most people do not see the media as causing criminal activity. As the label yankii implies, although the acts are bad, the characters are basically nice kids. In the same way, the implication includes the readers and viewers who see themselves as nice people.

John E. Ingulsrud is Professor of Applied Linguistics in the Department of International Studies at Meisei University. Kate Allen is Professor of Linguistics in the School of Global Japanese Studies at Meiji University. They are the authors of Reading Japan Cool: Patterns of Manga Literacy and Discourse.

1. Patrick W. Galbraith, The Otaku Encyclopedia: An Insider’s Guide to the Subculture of Cool Japan, (Tokyo: Kodansha, 2009), 238.
2. “Yankii Supirittsu Sugoi Keizai Kōka (The Yankii Spirit Huge Economic Effect)”, Spa! Business Culture and Entertainment Weekly (June 23, 2009), 38-45.

Renewed Optimism on Same-Sex Marriage

By Jason Pierceson

Events in 2009 have reshaped the national conversation on same-sex marriage. While the year started with continued consternation by progressives about Prop. 8 in California, most everyone in the country was taken by surprise of the decision by the Iowa Supreme Court to legalize same-sex marriage. This was followed almost immediately by a series of state legislative enactments of same-sex marriage in Vermont, Maine, and New Hampshire, as well as intense political activity on the issue in New York and other states. The Iowa decision also energized activist in California to continue with their grassroots efforts to overturn Prop. 8 in 2010. People on the liberal coasts asked themselves, if Iowa can do it, why can't we?

After these developments, it is unlikely that supporters of same-sex marriage will ever again be on the defensive, as they largely have been since the Hawaii decision started this national conversation in 1993. Indeed, we appear to be light years from the narrative of 2004 that same-sex marriage would help to keep Democrats in the political wilderness as long as litigation and activism continued. But, slowly, the moral landscape has changed.

Part of this shift stems from the continued framing of the issue by courts as one of constitutional and civic, not theological, morality. As the Iowa court stated, "This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all." This has further emboldened activist and elected officials to argue for and enact relationship equality policies, including calls from prominent conservatives and Republicans such as Steve Schmidt and Ted Olson. Indeed, Olson has framed his support of same-sex marriage in moral constitutional terms. "This is about the rights of individuals to be treated equally and not be stigmatized," he stated to the Associated Press.

To be sure, the fight for same-sex marriage is not over. The Defense of Marriage Act and the multitude of state constitutional bans on same-sex marriage and other forms of relationship equality represent a substantial hurdle for same-sex marriage advocates, but this hurdle is significantly less formidable given the new and powerful frame of constitutional and civic morality. In other words, the moral argument is veering towards the side of same-sex marriage supporters, and away from traditionalist opponents.

Before the events of this year, I predicted a modest expansion of relationship equality policies alongside entrenched opposition. Now, however, I am much more optimistic that the power of constitutional and moral arguments is on the side of same-sex marriage advocates, resulting in much more rapid change, that and opposition will become less entrenched and monolithic as more and more people recognize this issue for what is truly is: an issue of civil equality for sexual minorities that demands that the nation and its citizens live up to its fundamental principles.

Jason Pierceson is associate professor of political science and legal studies at the University of Illinois at Springfield and co-editor, along with Gordon Babst and Emily Gill, of the forthcoming Lexington book Moral Argument, Religion, and Same-Sex Marriage: Advancing the Public Good.

The Pitfalls of Historical Amnesia in the Middle East

By Paul J. Rich

In 1914 the British, largely with Indian troops, landed at Basra at the head of the Persian Gulf and began a disastrous march to Baghdad. They were surrounded by the Turks at Kut and there suffered a defeat that was compared to that of Yorktown. The casualties were enormous.

It is amazing that so little attention has been paid to this invasion and to the subsequent unhappy British occupation of what then were the Turkish provinces of Mesopotamia. The region was of course to become Iraq and the British would struggle with trying to impose their agenda well into the 1930s.

So little is said about this that one would think it was a secret, but there is no lack of information on the subject. There are some classic volumes such A.J. Barker’s The Neglected War: Mesopotamia 1914-18, and Briton Cooper Busch’s Britain and the Persian Gulf and his Britain, India, and the Arabs. In fact, scholars have done such notable work on the period and region that it is frustrating to see how untutored American policy towards the peoples of Iraq has been.

Reading about the attempted consolidation of Middle Eastern straps along Western lines in the past might have prevented some of the mistakes that have been made by the United States in its recent interventions. And there remains a great wealth of original source material to explore should anyone be inclined. One valuable archive is the records of the Mesopotamian Commission after the war, a highly controversial fact-finding tribunal investigating the British blunders during the campaign. Charges that it whitewashed the conduct of high British officials have never been resolved.

In retrospect, the British decision to land at Basra and create Iraq had much to do with the desire of those in charge of the Empire to extend Imperial rule into the Middle East. The Gulf shaikhdoms were already part of that Empire and taking the head of the Gulf and then going on to Baghdad seemed a logical extension. Figures such as Sir Percy Cox and Sir Arnold Wilson were the Colin Powells and Donald Rumsfelds of the period.

Occam’s razor is well applied to the Middle East situation. It is not atomic science to ask that American foreign policy display more sophistication. One simply must know something bout the nuances, the cultures, the ancient animosities, before plunging willy-nilly into marching to Baghdad. We didn’t.

Paul J. Rich is president of the Policy Studies Organization in Washington, D.C., visiting fellow at the Hoover Institution, Stanford University, and the editor of Iraq and Gertrude Bell's The Arab of Mesopotamia, Iraq and Rupert Hay's Two Years in Kurdistan, Iraq and Eleanor Egan's The War in the Cradle of the World, and the author of the forthcoming Creating the Arabian Gulf: The British Raj and the Invasions of the Gulf.

The Addition of Sonia Sotomayor Adds Long Overdue Diversity to the Supreme Court

By Nichola D. Gutgold

In 1790 the United States Supreme Court convened for the first time. It isn’t surprising that all its members were men, since almost one hundred years later Myra Bradwell, who passed the Illinois bar exam in 1869 and applied for her license to practice law was rejected because she was not only a woman, but a wife, too. Furthermore, in 1873, the Court rejected her appeal and Associate Justice Joseph P. Bradley noted that as a married woman, she was not competent to make contracts or do other legal work for her clients because of her legal, social and natural defined dependence on her husband in all matters. It was not until the 1970s that the Supreme Court began to use the Equal Protection Clause of the Fourteenth Amendment to challenge state laws that discriminated against women in the workplace and employment in general. Backed by the Equal Pay Act passed by Congress in 1963 and Title VII of the Civil Rights Act of 1964, the Court held up in 1971 that employers could not discriminate in hiring against women who had young children.

With these relatively new cases aimed at gender equality, it isn’t too surprising that representation on the Supreme Court by women has been so sparse. Since 1790, only two women have served on the Supreme Court. In 1981 Sandra Day O’Connor was confirmed and in 1993 Ruth Bader Ginsberg joined her. The third potential justice, Sonia Sotomayor is facing intense scrutiny surrounding the rhetoric of race as she awaits her confirmation.

It should also be of little surprise that Sonia Sotomayor is being ridiculously accused of racism. No doubt in this 24/7 YouTube driven media culture, she is learning that is takes a special communication skill set to manage the tricky terrain of politics, government and the law. The now infamous statement that has been taken out of context and played in a Moebius loop was: "I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life." Though we have heard this often repeated quote again and again in the media, less stressed is Sonia Sotomayor’s impressive record as a federal jurist, as a litigator and as a prosecutor. That she is a two-time Ivy League graduate and did not enter those institutions with a family legacy relates to the majority of Americans who have only their own hard work to propel them forward.

Sonia Sotomayor will likely win confirmation as the third female Supreme Court Justice because she is well qualified and, in the words of Justice Oliver Wendell Holmes that President Obama quoted when he nominated her, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live.” As women continue to enter the legal profession, equal representation of men and women on the Supreme Court is crucial. Though both Sandra Day O’Connor and Ruth Bader Ginsberg downplayed their gender and said that “At the end of the day, a wise old man and a wise old woman reach the same judgment,” it is indeed, long awaited progress that Sonia Sotomayor will bring her wise Latina woman’s voice to the Supreme Court in order to more accurately reflect the experiences of an ever increasingly diverse America.

Nichola D. Gutgold is co-author of Elizabeth Hanford Dole: Speaking from the Heart and author of the following books with Lexington Books: Paving the Way for Madam President (2006), Seen and Heard: The Women of Television News (2008), and the forthcoming Almost Madam President: Why Hillary Clinton ‘Won’ in 2008 (July 2009). She specializes in examining the communication skills of women in male dominated fields.

Sotomayor Pick Historic, but Still a Roll of the Dice

By Jeffrey L. Chidester

Judging from the Beltway tea leaves, President Obama’s nomination of Sonia Sotomayor will almost certainly yield the first Hispanic justice on the Supreme Court. While this historic first is something all Americans should celebrate, how Judge Sotomayor would deliberate on the bench is still an open question. And administration officials are surely keeping their fingers crossed.

In the case of judicial nominations, the gulf between expectation and reality is often very wide. Eisenhower’s selections of Earl Warren and William Brennan remain the model for picks gone awry, as the two joined together to lead perhaps the most actively liberal court of the 20th century. Eisenhower later called the Warren selection “the biggest damned-fool mistake I ever made.” Retiring Justice David Souter, who was nominated by George H.W. Bush, has been a thorn in conservatives’ sides for years due to his decisions on abortion, workers’ rights, and the death penalty. Even greater venom is reserved for Justice John Paul Stevens, another ill-fated Republican selection. A 2003 study by the National Academy of Sciences found Stevens, nominated to the Court in 1970 by President Nixon, to be the most liberal member of the Court.

On the other hand, the outcome is sometimes better. Antonin Scalia was confirmed by a vote of 98-0 in the Senate (interestingly, the two absent senators, Barry Goldwater and Jake Garn, were both Republicans). Many Democrats from the 99th Congress are still grieving over that one.

Stuart Spencer, who ran Ronald Reagan’s two gubernatorial campaigns as well as his 1980 and 1984 presidential bids, said judicial nominations are, by and large, a gamble. In an interview for the Ronald Reagan Oral History Project at the Miller Center of Public Affairs at the University of Virginia, Spencer recalled a similar case of unmet expectations: “When Reagan was Governor of California, he appointed a Chief Justice who looked like a safe bet. I was involved with that somewhat. He totally turned on him before he left in terms of rulings. . . . They’re lawyers. They’re judges. They’re going to do what the hell they want to do. You don’t know what you’re getting. I just don’t think any President really knows what he’s getting until he gets there and he serves.”

Spencer mentioned another historic nomination that occurred early in a new administration: the July 1981 choice of Sandra Day O’Connor. According to Spencer, while O’Connor “stayed the course” for Reagan, Supreme Court selections are still “a roll of the dice for a President. If they want to perpetuate their philosophy, they really have to do some vetting.”

Chances are good that liberal thinkers will be satisfied with the selection – a survey of Sotomayor’s opinions suggests a legal philosophy similar to Obama’s. But some of her rulings have rankled liberals in the past. For example, in 2002, she upheld the government’s “Mexico City Policy” to prevent the funding of international organizations that perform or support abortions. She wrote that the government is “free to favor the anti-abortion position over the pro-choice position.” Pro-choice groups are among the early outspoken opponents of Sotomayor’s nomination.

Before the activists on both sides bring the rhetoric to a fever pitch, we should remember that predicting future judicial reasoning is guesswork at best. Obama may get his Scalia, but he also may get his own Souter. Liberals and conservatives can only sit back and hope it breaks their way.

Jeffrey L. Chidester is Chair of the National Discussion and Debate Series at the University of Virginia’s Miller Center of Public Affairs. He is formerly research director for the Miller Center’s Ronald Reagan Oral History Project. He is the co-author, with Stephen F. Knott, of At Reagan’s Side: Insiders' Recollections from Sacramento to the White House.

Justice Kennedy’s Date With “Dignity”? (Part I: Race and Human Dignity)

By Helen J. Knowles

Watchers of the work of the U.S. Supreme Court eagerly anticipate June, when that institution frequently announces several blockbuster outcomes in the cases that remain to be decided. As the Court brings its term to a close at the end of that month, anticipation mounts as commentators speculate about possible votes and the likely identity of the justices who will pen opinions (for the majority, and separately in concurrences and dissents). June 2009 promises to be no different.

It is perilous to try and predict the direction of the twists and turns that justice will take at the Court during what remains of this year of its work. To be sure, we know that the Term’s end will bring the retirement of Justice Souter, and the inevitable feeding frenzy that will accompany the confirmation hearings of his nominated successor, Judge Sotomayor. Before that happens, however, several major cases remain to be decided. While the results will not be known until the justices choose to make them public, there is one thing about which most commentators agree, regardless of ideology. Articles in the both the New York Times and the Wall Street Journal reach the same conclusion: In Ricci v. DeStefano and Northwest Austin Municipal Utility District No. 1 v. Holder, the man at the jurisprudential center of the Court will be the deciding vote; the key to these cases will be Justice Anthony M. Kennedy. What commentators ignore, however, is what might actually be the key to these cases as Justice Kennedy sees them. That key is the concept of “dignity.” During his two decades on the Court, this concept has been just as significant to Kennedy’s jurisprudence as has been the “man in the middle” role he has played on a bench frequently split between four more conservative and four more moderate men and women.

In this, the first of two blog entries, I look at the potential “dignity” reading that a Kennedy-authored opinion might give to the issues involved in Ricci v. DeStefano (a case which has taken on added significance since President Obama’s nomination of Judge Sotomayor – who was part of the lower appeals court panel of judges whose decision was appealed to the Supreme Court (her participation in the case is discussed over at Scotusblog)). Next time, I will offer a similar discussion of Northwest Austin Municipal Utility District No. 1 v. Holder.

Ricci v. DeStefano

Two years ago, when the Court struck down two school districts’ plans that used race as a factor in assigning students to schools, Kennedy refused to agree with Chief Justice John Roberts’s now-famous postulate about solving racial tensions in America. Kennedy said it was shortsighted of his colleague to proclaim: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This difference of opinion separates these two justices who otherwise share a commitment to a color-blind Constitution, and it is probable that it will play an important role in Ricci. For Kennedy, dignity is likely to be key to the case because it is this concept that resides at the heart of his modestly libertarian reading of the Fourteenth Amendment’s Equal Protection Clause. It is this constitutional provision that Frank Ricci and a group of his firefighting colleagues say that the City of New Haven, Connecticut violated when it denied them the promotions they were due. After creating and administering a race-neutral exam explicitly intended to achieve merit-based selection of individuals to fill leadership positions in the fire department, the City decided it did not like the results. The original emphasis on merit needed reevaluation when no African American firefighter did well enough to be considered for promotion. The race-neutral test (and its results – which placed Ricci (who is white) sixth in a class of seventy-seven individuals) was thrown out. If this is New Haven’s effort at race-conscious hiring in order to achieve diversity amongst its first responders, what happens to those who succeed on merit, but fail because of their race, rather than vice versa?

Over at his legal blog last year, Michael Dorf, Cornell University law professor and former Kennedy clerk, observed that “dignity” is susceptible to labeling as a mere “weasel word” because its ambiguity invites judges to use it when it suits their particular policy needs. Nevertheless, Dorf encourages us to resist this characterization. In terms of the current composition of the Court, this resistance has been voiced most strongly by Kennedy, who makes no secret of his belief that “dignity” is important to constitutional interpretation. Whatever one’s view of using an unenumerated concept (in this respect, “dignity” resembles “privacy”) for understanding the Constitution, the fact remains that Kennedy is the de facto ideological leader of the current Court. When he takes dignity seriously, so do his colleagues.

Two of the briefs filed in Ricci by groups with an interest in the case (interestingly, filed in support of New Haven) seemed to realize this, even though their discussions of “dignity” were fleeting. During oral argument, although Justice Kennedy did not invoke it, the concept of “dignity” played an important role. Mr. Ricci’s attorney made an effort to persuade at least a majority of the Court that New Haven violated “that singular principle of individual dignity” by discriminating on the basis of race.

Justice Kennedy objects to judicial opinions that portray the intractable issue of race as something that can be easily solved by judicial imposition of absolutist readings of the Constitution. In Kennedy’s mind, engaging the country in an honest dialogue about the human “dignity” that attaches to all, regardless of their race, is more profitable than vowing to end discrimination by judicial fiat. In a 2007 Newsweek interview, Kennedy responded to Roberts’s call for greater unanimity on the Court by saying: “My initial reaction was going to be, ‘Just let me write all the opinions.’’” If he does not receive the majority opinion assignment in Ricci, Kennedy is unlikely to be pleased if the chosen author is not sensitive to his dignity-based understanding of individualized equality. Should Justice Kennedy decide to write separately, his past writings strongly suggest he will speak in the language of dignity.

Helen J. Knowles is assistant professor of political science at SUNY, Oswego. She is the author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.