Rapoport Center Working Papers

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https://hdl.handle.net/2152/27477

Dedicated to interdisciplinary and critical dialogue on human rights, the Rapoport Center’s Working Paper Series (WPS) publishes innovative papers by established and early-career researchers as well as practitioners. The goal is to provide a productive environment for debate about human rights among academics, policymakers, activists, practitioners, and the public.

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Ordinary Subjects of Tyranny: Practical Constitutionalism and Public Judgement in the Political Thought of George Buchanan
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2023-06) Lundy, Timothy
The influence of democratic ideas on the political thought of sixteenth- and seventeenth-century Europe is often considered in relationship to history, theology, and law, but less often in relationship to poetry. For this reason, poetry offers unexplored resources for thinking through the value of public deliberation and judgment, even under decidedly non-democratic constitutions. In this paper, I examine the political thought of the Scottish humanist George Buchanan (1506–82) in the context of his philosophical dialogue De iure regni and his Biblical tragedy Baptistes. Buchanan’s political thought was recognized as radical in its own day for the strong limits it placed on monarchical power and prerogative and the authority it vested in the people to restrain kings and depose tyrants. I argue, however, that what is most interesting for the history of democracy—as well as for political thought today—is Buchanan’s development of arguments for the judgment of the common people as a privileged site of political insight and, by extension, for the practical value of public deliberation and transparent government.
The Unhappy Marriage of ‘Queerness’ and ‘Culture’: The Present Implications of Fixating on the Past
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-10) Gupta, Arti
In September 2018, the Supreme Court of India in Navtej Johar v. Union of India, decriminalised consensual same-sex sexual activities by reading down Section 377 of the Indian Penal Code. A significant aspect of the Court’s reasoning was that Section 377 was an embodiment of ‘Judeo-Christian’ morality and a colonial imposition. In providing that reasoning, the judgment does not stand alone. For a long time, various revisionist accounts of religious texts and scriptures have been presented to argue that ancient ‘Indian culture’ had been tolerant towards non-normative sex and gender, and ‘homophobia’ was simply a British imposition. Such revisionist arguments had initially been put forth by Indian queer rights groups to nullify the orthodox homophobic attitudes, which rested on the claim that homosexuality is alien to ‘our culture’. However, this article argues that there has been an increasing cooptation of such accounts by dominant Hindu Right groups for their political ends. This article also shows that such reliance on the past (through scriptures or otherwise) to confer legitimacy on the present can have the effect of constraining the radical potentialities of that past. At the end, this article argues for a turn towards the future, which, creating new solidarities, can become a horizon of possibilities.
Critical Reflections on the Structural Legal Power in Human Rights Law
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2023-03) Hajyahia, Alaa
In Europe, a wide range of religion-based practices have been at the center of public debate over the last two decades. This paper focuses on one such practice: the wearing of Islamic veils in public spaces in Europe. Through one representative case study, I explore how the Muslim woman is constructed by the European Court of Human Rights. I offer a diagnosis of the Court’s ontological position, which, I argue, is shared by the Court’s legal–feminist critics. Later, I turn to the fields of cultural sociology, social anthropology, hermeneutics, law, and political theory to develop an ‘alternative ontological position’, a position that situates Muslim women as neither ‘political’ nor ‘suffering’ others, but as morally evaluative humans distinctly and deeply informed by their unique cultural experiences. Having set forth that alternative position, this paper argues that in cases involving Muslim women, the determinations of the European Court of Human Rights, serve to – both actively and passively – maintain, protect, and enforce white power and control as defined by critical race scholars, all under the guise of gender equality.
The Legal Impact of COVID-19 on Women's International Human Rights: Analyzing the #NiUnaMenos Movement in Latin America
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-04) Gretzinger, Fabiola
This paper details the history and successes of the #NiUnaMenos movement, and subsequently the Marea Verde (Green Wave) movement, throughout Latin America. After the COVID-19 pandemic, there has been a massive increase in domestic violence and gender-based violence rates throughout the region. Similarly, the United States just stripped women of their constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. This evidences how important this movement is throughout Latin America, and for the rest of the world, to understand how social, political, and legal movements can continue to protect women’s rights. Comparing successes and setbacks both before and after COVID-19, this paper establishes how governments and movements alike should proceed to ensure women’s rights are strengthened and protected.
Plain Reading the Constitution: Frederick Douglass, Textualism, and the Pursuit of Racial Justice
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2023-02) Brush, Emma
In the legal imagination, Frederick Douglass is often viewed as a “constitutional utopian” for his efforts to salvage the prewar Constitution with an antislavery construction. Rejecting the views of both the Taney Court and the followers of William Lloyd Garrison, who saw the Constitution as “a covenant with death, and an agreement with hell,” Douglass and other political abolitionists put forward a redemptive view of the Constitution rooted in both the letter and the spirit of the document. For Douglass, the fierce contest over constitutional meaning suggested the amenability of the Constitution’s “plain meaning” to abolition and the importance of wresting political power, and thus interpretive power, from pro–slavery forces. The long–term potency of Douglass’s adaptive, literalist, and purposive method suggests the importance of his constitutional interpretation for formulating a racial justice jurisprudence today. The textualism practiced by the current Supreme Court, however, poses multiple challenges to the pursuit of that same goal. The questions that occupied Douglass’s day—whether and how to embrace a document tied to foundational injustice—have come to swirl not only around Douglass’s legacy but also around contemporary questions of constitutional theory, particularly pertaining to the relation of the text and textual interpretation to racial justice. In this paper, I will argue that Douglass’s textualism offers progressive constitutionalists a theory of interpretation that meets originalism on many of its own terms but also insists on a radically revised conception of constitutional meaning, one that centers racial justice first and foremost.
A Clean State for No One: The Need for Automatic Expungement Policies
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-03) Hiestand, Michael
In the United States, the “collateral consequences” of a criminal record extend far beyond the period of physical detention. These disadvantages fall disproportionately on the shoulders of people of color, and on Black Americans in particular. Among the numerous policy mechanisms aimed at alleviating these collateral consequences, expungement – the extraction and isolation of official criminal records from public access – stands out as particularly promising in that it promises to provide criminalized individuals a “clean slate.” However, the emerging literature on the uptake rate of expungement policies in their current, petition-based state has been far from encouraging. This paper provides a critical race perspective to this emerging literature through a comparative analysis of expungement policies in New Jersey and Alabama. This analysis reveals that existing expungement policies are not simply ineffective; they are also active contributors to the racial disparities in the impacts mass incarceration. This paper concludes by suggesting that the only equitable path forward for expungement is to follow the lead of New Jersey and other states by providing expungement automatically to those who qualify.
Precarity Capitalism and the Global Value Chain in Beef: The Plight of Meatpacking Workers at JBS Greeley
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-02) Fossum, John
Of the many jobs categorized as “essential” during the first wave of the COVID-19 pandemic, the continued operation of American meatpacking plants stood out. This work was 1) unrelated to critical healthcare services, 2) primarily staffed by minority and immigrant workers, and 3) conducted in conditions that seemed ideal for the coronavirus’ spread. Why and how did meatpacking facilities then remain open through the spring and summer of 2020, despite the proliferation of facility-linked COVID-19 hotspots and worker deaths? Drawing from authors of legal theory on racial capitalism, self-regulatory behavior by transnational corporations, and “precarity capitalism,” this paper builds context for this phenomenon through a case study on JBS USA Beef in Greeley, Colorado, the flagship facility for the American branch of world-leading meat producer JBS S.A. based in Brazil. It frames the protracted battle over production and worker safety as a standoff between workers of minority racial status, in precarious economic and labor conditions, and a winning coalition of powerful political and corporate stakeholders invested in the global value chain in beef.
Between Intra-Group Vulnerability and Inter-Group Vulnerability: Bridging the Gaps in the Theoretical Scholarship on Internal Minorities
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2021) Zucker, Miriam
The scholarship on internal minorities has generated different proposals for addressing concerns about the oppressive impacts of minority cultures’ practices on their more vulnerable members. Critical reflection on this scholarship reveals that it is characterized by a rigid binary choice between an interventionist approach—seeking to eradicate cultural practices that contradict liberal values and norms—and a laissez-faire approach that rejects interference in cultural minority communities’ affairs and instead relies on the right of minority members to exit their community. Despite these two approaches dominating the scholarship, both options under this binary are detached from the interests and needs of minority women. Rarely do women and girls benefit from putting their family members in jail under the interventionist approach, while leaving the community under the laissez-faire approach is either impossible or undesired (or both) because it often requires the individual to “leave her whole world behind.” This paper demonstrates that this binary stems from the fact that scholars have not accounted for the role of the state in the problem of intra-group vulnerability, and illuminates how when one does, one notices other options that better align with women and girls’ interests and needs.
Duty to Disobey: Modernism, Autonomy, and Dissidence in the Global 1930
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2021) Saikumar, Rajgopal
This essay constellates a set of modernist texts to pursue a question predominantly considered the provenance of legal philosophical studies, namely, a one’s obligation to obey the laws of the state that one belongs to, and its corollary concerning the subject’s autonomy and their duty to disobey unjust authority. By providing examples from the Black radical tradition (Zora Neale Hurston’s 1931 Barracoon), European antiwar pacifism (Virginia Woolf’s 1938 Three Guineas) and South Asian anti-colonial thought (M. K. Gandhi) in the interwar years, I explore heterodox conjugations of commitment (duty, bond, fidelity, attachment etc.) and disobedience (breach, withdrawal, betrayal, insurgence etc.) to juridical authority.
An Ethos of Restitution: Walter Schwarz and the Gloss
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2021) Petersen, Laura
Berlin, 1950s. Newly arrived back in Germany after escaping from the NS regime, a Jewish lawyer called Dr Walter Schwarz settles in Berlin. He opens a law practice assisting clients who are making private restitution claims. But Schwarz is not only a lawyer; he is a passionate writer: a jurist. This paper focuses on his writings in the professional journal of restitution, which are in the form of “glosses.” Generally appearing in the margins alongside neutrally worded case notes, these glosses are short, rhetorical commentaries, which often take literary forms. Schwarz uses the gloss, literally situated in the margins of law, as a genre which can return a human dimension to what became a rigid and bureaucratic process. Through his performative language and attention towards the conduct of legal practice, I argue Schwarz’s glosses offer a different ethos of restitution in the aftermath.
Mapping Gender Violence Along the Balkan Route: Humanitarian Assemblages, Securitization Policies, and the Experiences of Women Refugees and Migrants
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2020) Charney, Laura
Based on the lived experiences of migrants and refugees in Serbia, this paper argues that anti-trafficking and anti-smuggling humanitarian projects and securitization deals are serious sources of violence at the EU-Balkan borderlands. The ways migration management policies that emphasize anti-smuggling and anti-trafficking adversely affect women refugees and migrants highlights inconsistencies in human rights discourses within the refugee regime. The replacement of human rights with humanitarianism perpetuates a state of rightlessness for migrants and refugees, whether in the Balkans or elsewhere, and this complicates our understanding of where human rights violations in the context of migration actually occur. Caught between the humanitarianization of migration management, international and state bureaucracies, and the borderlands between the EU and non-EU, migrants and refugees in Serbia live in a liminal legal zone that in itself subjects them to political, economic, and social vulnerabilities that we might consider as the gendered violence of regulated rightlessness. Rather than locating the gender violence of migration with a foreign smuggler, as migration policies tend todo, ethnographic data from interviews the author conducted with migrants and refugees in Serbia 2019 reveals that the violence of migration along the Balkan Route can be located in three key areas: through state consent and humanitarian facilitation of human smuggling at the EU border; at the borders through pushbacks and detention; and in the everyday violence of encountering and navigating rightlessness—what the author has called the soft violence of state bureaucracy.
Wages of Liminality: How an in-between status lowers the earned wages of women health workers
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2020) Marwah, Vrinda
In this paper, I analyze the experiences of the world’s largest, all-women community health workforce through the lens of liminality. Originally used to describe transition from one state to the other, the concept of liminality in the study of work and organizations can frame workers’ experiences of being in-between established structures and roles in varying degrees, times, and/or places. India’s ASHAs, or Accredited Social Health Activists, are community women at the frontlines of the state’s health care provisioning. But the state does not categorize them as workers or employees. ASHAs are considered volunteers. Instead of salaries, they are paid task-based incentives. Based on 14 months of ethnographic fieldwork, including 80 interviews, I find that ASHAs’ liminal occupational status as ‘paid volunteers’ produces conditions of chronic underpayment and control for them, further lowering their already low wages. This has implications for how we understand the gender wage gap. I argue we need to consider not just how much women are paid, but how the amount is structured, and how that places women workers in relation to others in the workplace. Moving beyond whether liminality is a negative or positive experience, future research should delineate the conditions under which liminality is negative or positive, and for whom.
Colonized Masculinities and Feminicide in the United States: How Conditions of Coloniality Socialize Feminicidal Men
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Jalali-Yazdi, Shireen
This paper argues that the colonial conditions faced by African American men contribute to the construction of feminicidal masculinities. Feminicide—the killing of women because they are women—has received increased international focus but has largely eluded political, academic, and public consciousness in the United States. This despite the fact that the United States shows alarming rates of violence against women, particularly intimate partner violence. A 2017 report from the Center for Disease Control and Prevention shows that female homicide rates for African American women are higher than those of other races and ethnicities and that these feminicides are overwhelmingly committed by African American men known to the victim. One of the major goals of this paper is to disabuse scholars and policymakers of notions of pathological blackness that dehistoricize the conditions of African American livelihood and disengage the State from fulfilling its duty to provide civil, political, economic, social and cultural rights to its citizens. To do this I present a feminist decolonial intersectional framework of the killing of African American women and use it to undermine culturalist and racial explanations for the prevalence of feminicide in African American communities.
The Only Panthers Left: An Intellectual History of the Angola 3
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Genovese, Holly
Albert Woodfox, Herman Wallace, and Robert Hillary King, colloquially known as the Angola 3, spent most of their adult lives in solitary confinement, Wallace and Woodfox for the murder of Louisiana State Penitentiary Prison Guard Brent Miller, and King for a separate false murder accusation. They were Black Panther Party members, activists, artists, and writers who used their artwork and intellectual production to protest the unjust systems of incarceration and solitary confinement that they faced as political prisoners. The Angola 3 participated in direct action protest—food and work strikes in particular—but also wrote and created artwork to challenge dominant narratives about the Black Panther Party. I argue that while the members of the Angola 3 do not fit conservative conceptions of intellectuals, they have used intellectual means to redefine the memory of the Black Panther Party and lay claim to their own experiences in prison. The Angola 3’s engagement with other prison writers, the black radical tradition, and their own intellectual and artistic production in the years since they were released can also expand our understanding of both the prison arts movement and prison literature writ large.
Now is (not yet) the Winter of Our Discontent: The Unfulfilled Promise of Economic and Social Rights in the Fight Against Economic Inequality
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Lichuma, Caroline Omari
Material inequality or (extreme) economic inequality has been touted as one of the greatest challenges of the twenty-first century. Wealth is “hemorrhaging upwards” rather than “trickling down.” In a world where the rich get richer, the poor get poorer, and the inequality gap in income and wealth continues intensifying at an alarming pace, there exists an “inequality explosion” that threatens the very fabric of our global society. While economic inequality and questions of (re)distribution of wealth and income have traditionally been examined within the spheres of development law and political economy, I argue that a human rights based approach that contains economic and social rights (hereinafter, ESRs) at its core is capable of mitigating economic inequality. International human rights norms enjoy a high level of global legitimacy, as evidenced by the fact that the key human rights instruments have been widely accepted in all regions of the world. 169 States have ratified the International Covenant on Economic, Social and Cultural Rights (hereinafter, ICESCR). Underpinned by universally recognized moral values and reinforced by national and international legal obligations, ESRs therefore provide a compelling normative framework through which material inequality can be addressed.
Fostering the Inclusion of Disabled Students in Higher Education in South Africa: Some Reflections
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Kamga, Serges Djoyou
Higher education is an important step towards ensuring human development. This was understood by South Africans who included the right to education, and to further education, in their Constitution. Subsequently, the country has adopted various policies to ensure access to higher education for students with disabilities, and this was in line with the spirit of the Convention of the Rights of Persons with Disabilities to which South Africa is a party. Yet disabled students still face barriers to higher education. The article examines these barriers to inclusion for students with disabilities in higher education and proposes solutions to foster their inclusion. To this end, the article reviews legal and policy documents as well as the enforcement of such policies (or lack thereof). It also evaluates the appropriateness of support for students with disabilities in higher education by exploring the practice at various South African universities. It concludes that although policies and legislative measures are in place, it is essential to implement enforcement mechanisms to foster the inclusion of students with disability in higher education. In addition, adequate policy measures should be supplemented by appropriate institutional support structures. The latter should include establishing credible Disability Units and implementing universal learning design methods that comprise planning for accessibility of buildings, flexible curricula, training and awareness of academic and non-academic staff on disability issues.
Domesticating Human Rights on African Soil: Theorizing from Practice
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Asare, Abena Ampofoa
In the 70th anniversary year of the Universal Declaration of Human Rights (UDHR), this paper proposes an alternative perspective on the progress of the international human rights regime inaugurated in 1948. Focusing on the multiple ways that international human rights discourse is deployed in diverse African locales throughout the late twentieth and early twenty-first centuries, this paper launches the concept of domestication as a way to apprehend the variety of human rights practice. In so doing, this paper challenges definitions of human rights progress that focus on expanding global consensus, and instead theorizes a future for human rights discourse that is rooted in difference, particularly the divergent strategies and ideologies of diverse local stakeholders.
"United We Stand" The Collective Mobilisation of African Women in Athens, Greece
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Zaphiriou-Zarifi, Viki
This paper explores how African women in Athens are collectively mobilising to resist and manage the exclusionary and othering processes they all-too-often face in their everyday lives. In particular, it focuses on the activism of the United African Women’s Organization (UAWO) and its mobilisation of the ‘African woman’ identity in the fight for greater livability in terms of both material conditions and social intelligibility. Applying the notion of ‘acts of citizenship,’ formulated by Isin and Nielsen (2008), the paper illustrates the ways in which UAWO works towards claiming citizenship rights for non-citizens creatively, performatively, and in multiple spaces. In so doing, the paper also explores how UAWO seeks to challenge, and potentially transform, the categories of recognition available to African women in Athens.
Striving for Solutions: African States, Refugees, and the International Politics of Durable Solutions
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2019) Yacob-Haliso, Olajumoke
How do international structure and African agency constrain or propel the search for truly “durable solutions” to the African refugee situation? This is the central question that I seek to answer in this paper. I would argue that existing approaches to resolving refugee issues in Africa are problematic, and key to addressing this dilemma is a clear and keen understanding and apprehension of the phenomenon as grounded in history, states’ self-interested actions, international politics, and humanitarian practice. I suggest that these cardinal features of the African and international political system are the key obstacles to progress in the search for alternatives to African refugee trajectories, and that durable solutions have no chance of being truly durable if the current configuration of international and regional politics, actors, and policies persist.
Re Georgio: An Intimate Account of Transgender Interactions with Law and Society
(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2018) Fallah, Katherine
In its everyday operation, the law presumes to narrate trans stories and shape trans lives. This piece shines a light on law’s claims to authority over transgender identities and transgender bodies, and offers an alternate, intimate account of one transgender person’s interactions with law and society. The stories recounted here offer glimpses into the life of Georgio. Written from the perspective of Georgio’s close companion — in response to a journal call for inter-disciplinary, first-person accounts of law and gender — this essay assembles incomplete fragments of the joys and frustrations of Georgio’s gender transition. The style and form of this piece are part of an effort to reimagine human rights scholarship; the essay is an exploration of possibilities for inviting deeper reflection on legal assumptions about the human rights and lives of transgender people. It represents an attempt to breathe humanity into law’s cold scripts of gender identity.

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