Avenues Of Redress Research Articles

Rethinking Remedies for Dissatisfied Nigerian Consumers of Telecommunications Services

The Nigerian telecommunications sector has experienced substantial growth in a little over a decade. With over 114 million mobile subscriptions in 2013, Nigeria has become the largest telecommunications sector in Africa in terms of subscriber numbers and one of the fastest growing telecommunications markets in the world. A corollary to this remarkable growth has been persistent consumer dissatisfaction with the quality of telecommunications services offered with the four existing GSM mobile telecommunications operators fined a total of One billion One hundred and seventy million Naira for the poor quality of their services in 2012 alone. Some consumer groups contend that rather than pay fines to the government, errant companies should refund each subscriber a sum of money as compensation for the poor quality of services suffered by subscribers. The current leadership of the Nigerian Communications Commission (NCC) is of the view that the NCA 2003 does not permit NCC to refund or compensate subscribers. The view was recently expressed in a leading Nigerian Law journal that there is a large variety of avenues (namely recourse to the Utilities Charges Commission, the Public Complaints Commission and the Consumer Protection Council in addition to the NCC) for aggrieved consumers to obtain redress. This article argues that instead of having a plurality of avenues for redress, the primary and most effective remedy open to dissatisfied Nigerian telecommunications consumers lies with the sector regulator the NCC. It further argues that the possibilities of consumers successfully maintaining legal action either for negligence in tort or for breach of contract, with regards to poor services provision as an alternative to dispute resolution by the NCC is rather remote. It identifies a problem for consumers intending to sue for breaches of contract by their services provider in the sense that the High Court vested with jurisdiction to hear telecommunications matters lacks jurisdiction to entertain contractual matters, while the courts with contract subject matter jurisdiction lack jurisdiction to review NCC’s decisions. It further argues on the basis of statutory provisions, subsidiary legislation and the NCC’s previous practice that the NCC is sufficiently empowered to direct services providers to pay consumers compensation for poor quality of services provided. It among other things suggests recommendations both for the development of appropriate compensatory mechanism by the NCC and for the resolution of the jurisdiction conundrum with regards to suits for breach of telecommunications services contracts. A successful resolution of the problems impeding effective redress for consumers of Nigerian telecommunications services has implications beyond Nigeria as other developing African countries sometimes look up to Nigeria as a model to imitate.

Supreme Court Case Tests US Leadership in Human Rights

Today the Supreme Court will assess whether US courts can hear lawsuits that pertain to events outside the country. If the justices eventually decide 'no', an important avenue for redress will be closed to foreign victims of human-rights abuses – and America’s beacon will shine less brightly.

Legal status and positive practice in Community Order enforcement

The status of enforcement procedures may appear at first glance to be an academic debate with little application to probation practice. Yet the answer to this singular question determines how probation trusts should respond to a variety of court based challenges, which if mishandled has the potential to open the door to litigation against individual trusts. A breach of a community order is not a criminal offence, nor do enforcement proceedings form part of the criminal law. Regulatory statutes such as the Criminal Procedures and Investigations Act therefore do not apply. However, English case law has determined that a criminal standard of proof applies to enforcement cases and therefore some elements of the Criminal Procedure Rules do have resonance. Yet there is no right of appeal against a finding of breach and avenues of redress for both offender and the prosecution are limited to general provisions enshrined in English Law. Uncertainty surrounds the admissibility of other evidential areas. The robustness of evidence presented to the court can be improved by relatively modest amendments to practice and forestall possible 'reasonable excuse' defences. However other initiatives derived from general legal practice, are fraught with potential dangers when applied to Community Order enforcement.

Heavy hitting: concussions and safety law

It’s a simple question: Might occupational health and safety law be the foundation to compel Canadian sports associations and leagues to change their rules to ban actions that cause concussions, such as hitting in hockey, or heading the ball in soccer? Possibly, legal experts say. But they’re quick to add that there appears to be little appetite to use safety legislation as a vehicle through which to achieve advances in sports safety. It’s possible that the rules of any sport could require revision on the grounds that occupational health and safety law applies to the field of play, says Robert Smithson, a labour and employment lawyer with Smithson Employment Law in Kelowna, British Columbia. “Generally speaking, I think the prohibitions contained in worker’s compensation legislation against exposing your workers to danger — to the risk of injury in the workplace — could well be a very substantial leaping off point for the assertion that sports leagues or sports teams that knowingly place their players in danger of injury ... either be held to account or have to change their practices.” But compelling such change would be a challenge because defenders of hockey and other sports typically fear the consequences of changing the game, says Alfred Kempf, a lawyer specializing in labour and employment law at Pushor Mitchell in Kelowna. “Hockey is sacred to all of our hearts as Canadians, more than any other sport, probably, and I think that may play a part in it. We don’t want to mess up the game. Any province that attempted to go there would probably feel a lot of pressure not to go there.” While using occupational health and safety legislation to affect change in sport is theoretically possible, “I don’t see it working in practice,” Kempf says. Each province in Canada is responsible for occupational health and safety law, which would make it difficult to achieve national, coordinated action, he adds. “I guess to extend that you’d have to look at all of the America teams, too.” Hockey is practically sacred in Canada, so using occupational health and safety legislation to change how it’s played could be a tough sell. Image courtesy of © 2012 Thinkstock One outcome of a spate of lawsuits against the National Football League (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4243) could be demand that occupational health and safety law be used to compel action, says Travis Leach, a sports and entertainment attorney at the Jennings, Strouss & Salmon law firm in Phoenix, Arizona. But it hasn’t been a focus to date, he adds. Equally problematic is that occupational health and safety legislation typically does not deal with such issues as the rules of sport and “the essence of the games themselves,” Hilary Findlay, cofounder of the Sport Law & Strategy Group in Toronto, Ontario, and an associate professor in the Department of Sports Management at Brock University in St. Catharines, Ontario, writes in an email. “Other avenues of redress are likely more appropriate,” including union lobbying and negotiating, public pressure, and lawsuits by players aimed at sports leagues. Smithson forecasts that other forces, rather than occupational health and safety law, will soon force sports leagues and associations to move forward with changes aimed at reducing the incidence and consequences of concussions. “I think the rumblings that you’re starting to see in the US [United States], particularly against leagues like the NFL [National Football League] by former players, I don’t think that’s going to go away,” he says. “It has to happen sooner or later that the occurrence of head injuries and the long-term effects of head injuries to professional athletes cease to just be kind of an individual curiosity and they sort of coalesce into some form of a larger action.” Evidence of a link between concussions and chronic traumatic encephalopathy, along with national angst over the fate of hockey superstar Sidney Crosby, has prompted calls for an end to hitting in the sport (www.cmaj.ca/lookup/doi/10.1503/cmaj.112081). Meanwhile, widespread publicity about concussions has prompted a slow shuffle of Canadian youngsters out of contact hockey and compelled one critic to contend that Hockey Canada’s failure to implement stricter anticoncussion measures constitutes nothing short of “child abuse” (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4167). The growing evidence of the consequences of concussion has also led to the spate of class action lawsuits against the NFL, in which plaintiffs allege that the league has “mythologized violence” by glorifying the “brutality and ferocity of NFL football, by lauding and mythologizing the most brutal and ferocious players and collisions, and simultaneously propagating the fraudulent representation that ‘getting your bell rung,’ ‘being dinged’ and putting big hits on others is a badge of courage and does not seriously threaten one’s health” (http://nflconcussionlitigation.com/wp-content/uploads/2012/01/NFL-Master-Complaint1.pdf). Editor’s note: Second of a two-part series. Part I: Heavy hitting: concussions and the courts (www.cmaj.ca/lookup/doi/10.1503/cmaj.109-4243).

Making Modest Moves: Individual Users and Privacy in the Cloud

So many of our daily activities now take place “in the cloud,” where we use our devices to tap into massive networks that span the globe. Virtually every time that we plug in to a new service, the service requires us to click the seemingly ubiquitous box indicating that the user has read and agrees to the provider’s Terms of Service and Privacy Policy. If a user does not click on this box, he is denied access to the service. It is generally accepted that no one reads these agreements. They click accept, because otherwise they could not use the service of their choice, and these terms are typically almost entirely disregarded as a factor when services are chosen. If a user is asked why he does not read these terms, he might offer reasons like the dense legalese, or the length of these agreements. However, not reading these agreements can have negative effects. Some agreements contain binding arbitration provisions, limiting the agreeing party’s avenues for redress if the provider wrongs him. When a user is not informed about the terms of a privacy policy, she may be unknowingly consenting to the disclosure of her information to third parties with whom she would not want to share her information. These agreements can also affect the agreeing party’s legal rights. The Department of Justice has argued that violating a website’s Terms of Service amounts to a violation of the Computer Fraud and Abuse Act. Additionally, agreeing to overbroad privacy policy terms could reduce a party’s protections under the Stored Communications Act and the Fourth Amendment. As part of this work, we analyzed and categorized the terms of TOS agreements and privacy policies of several cloud services to aid in our assessment of the state of user privacy in the cloud. Our empirical analysis showed that providers take similar approaches to user privacy, and were consistently more detailed when describing the user’s obligations to the provider than when describing the provider’s obligations to the user. This asymmetry, combined with these terms’ nonnegotiable nature, led us to conclude that the current approach to user privacy in the cloud is in need of serious revision. Privacy and autonomy are often discussed as values necessary for a free society, and these values are threatened by the asymmetric terms and unawareness of parties agreeing to such terms. Based on analysis of the law, theories of privacy developed by scholars, and findings of research into human-computer interaction, and analogizing to the ethical guidelines of informed consent followed by social science researchers, we propose the following modest but realistically achievable goals to advance user privacy in the cloud. First, we suggest adopting a legal regime that requires companies to provide baseline protections for personal information, provide privacy enhanced services to customers that demand it, and also take steps to enhance the parties’ control over their own data. We further suggest applying laws governing fiduciary relationships in some circumstances. Second, we argue that collectors and users of personal information in the cloud should be held to ethical guidelines mandating informed consent. We argue that to remove the informational asymmetry, it is also essential that consumers become more informed about the contents of these agreements, and provide suggestions for how that can be accomplished. Ultimately, our goal with this piece is to apply established law and privacy theories to services in the cloud, and set forth a model for the protection of information privacy that recognizes the importance of informed users.

The Edges of Extraterritorial Jurisdiction: The Integration of Economic, Social and Cultural Rights into Peace Support Operations

The failure to deliver the goods and services that advance economic, social and cultural rights can have economic, social and political consequences. The failure to provide an effective legal avenue of redress can have repercussions across the full spectrum of human rights both for the individual and the State. Moreover, as the rising number of increasingly complex peace support operations testifies, the impact of the State's failure to deliver basic goods and services that satisfy immediate physical needs and serve as a conduit for accessing the full spectrum of human rights is not always confined to its own borders. Thus, (re)establishment of human rights standards is now increasingly a matter for peace support operations. Peace support personnel and their States are also increasingly scrutinised to ensure that their own behaviour accords with human rights standards. Consideration of the extraterritorial effect of sending States' human rights obligations is one mechanism by which such scrutiny is served. This article seeks to establish that international law's evolving jurisprudence on human rights and peace support, as well as the discourse surrounding this evolution, can and should to extend to matters of economic, social and cultural rights.

Empowering and Protecting Financial Consumers: Bank Negara Malaysia’s Consumer and Market Conduct Framework

This case study looks back on Bank Negara Malaysia’s decade-long program to enhance consumer empowerment and market conduct and extracts key lessons. Following the Asian financial crisis of 1997, the government of Malaysia committed to a decade-long program of financial reform that aimed to improve financial stability through consumer protection and market conduct initiatives. The Financial Sector Master Plan (FSMP) was launched in 2001, and since then Bank Negara Malaysia has been working to align its business strategy and institutional capacity with the goals of the Plan. With financial stability as its primary objective, the Bank introduced initiatives that would help to strengthen the capacity of financial institutions, promote financial education among consumers, and ensure that financial institutions adhere to fair market practices. Today, consumer empowerment and protection are pursued through a comprehensive framework that includes market conduct regulation and supervision, avenues for redress, consumer literacy and public awareness initiatives. This framework has been built progressively over time and has benefited from collaborations with other departments in Bank Negara Malaysia, consumer associations, and the industry. Since 2006, the Bank’s Consumer and Market Conduct Department (CMC) has played a key role in developing the framework.

Delayed Devotion: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties

The lyrics of “Delayed Devotion,” a song by the artist Duffy, speak of a woman’s decision to end a relationship in which, it seems, her partner only began to realize her value as she prepared to leave. There are doubtless many situations in which these lyrics, and the story they tell, are applicable. One such situation is manifested in international human rights law, particularly in regard to the rise in the creation and use of individual complaint mechanisms as a part of international human rights treaties. As this article explains, these lyrics are applicable in the individual complaint mechanism context because the increase in creating these procedures for specific groups through specific conventions indicates a sense that the devotion of the international community to implementing the rights guaranteed in foundational human rights has been delayed. At the same time, the increase in individual complaint mechanisms indicates that individuals are being provided with a greater ability to penetrate the international human rights law system that has for so long regarded them as only peripheral actors to be given rights rather than as actors having the agency to claim these rights at the international level. In sum, the result is a steady penetration of the international system by individuals, albeit through a system that is designed by international actors and therefore has structural limitations to this interaction. Although clearly the structure of the international law system mandates that the individual complaint system is itself structured in a way that is essentially state-centric, it is argued that the increasing prominence of the individual in international human rights law is a discernible trend that stands to alter the understanding of the international system. This prominence, however, is based on a greater sense of individual empowerment than the language of individual rights that has been traditionally used in international human rights law. The article argues that the increase in individual prominence is certainly laudable but that, by attaching this increased individual penetration of the international human rights law system to an ever-increasing series of specialized conventions, there is a significant risk of fragmenting the concept of the international human rights law system. Instead, it is argued that the individual, as the foundation of the human rights and dignities that are the backbone of international human rights law, should not need to seek specialized avenues of redress, but rather should be able to penetrate the international law system based on his basic identity as the holder of human rights and human dignity. This is especially so because these concepts of essential human rights and human dignity are at the core of the entire international human rights law system. This recommendation stresses both the internal status of people as holders of human rights and human dignity while also doing away with the need to create new quasi-judicial structures that are themselves potentially limiting depending on the ways in which they are drafted and function.

Extending Due Process Protections to Unadmitted Aliens within the U.S. Through the Functional Approach of Boumediene

Although noncitizens seeking entry possess some statutory protection under the Immigration and Nationality Act (INA), they have generally been unable to challenge the validity of the INA. Further, such unadmitted noncitizens have few avenues for redress if their rights are violated under the INA. Without a means to check legislative mandates or executive enforcement, these noncitizens are subject to the mercy of Congress and the President, with minimal oversight by the judiciary. Even if physically present within the U.S., such unadmitted noncitizens are deemed to be outside of the nation’s border as a matter of law. Because the scope of the protections of the Constitution’s due process clause has been traditionally limited to those within the border, these unadmitted noncitizens have been treated as though beyond its reach. During the last several decades, however, the landscape of constitutional rights of unadmitted noncitizens has begun to shift in a piecemeal fashion. Some courts have made limited extensions of constitutional protection to such inadmissible noncitizens. Yet, until recently, there had been no consistent framework from which one could reconcile the cases extending constitutional protection to arriving noncitizens seeking entry and the nonextraterritorial rule of constitutional application. In the Supreme Court’s decision in Boumediene v. Bush, Justice Kennedy articulated a functional approach to extraterritorial constitutional application. It conclusively dispelled the bright-line rule that the protections contained within the Constitution never extend beyond the border of the United States. This functional approach cohesively explains the landmark cases that extend due process protections to certain unadmitted noncitizens and provides a rule by which noncitizens may argue their entitlement to other constitutional protections. In this article, I apply the functional approach and argue for extending to arriving noncitizens within the U.S. several Fifth Amendment due process clause protections.

Mobile Banking, Mobile Money and Telecommunication Regulations

Providing mobile money through mobile phones is a value-added service offered through telecommunication companies. Its issuance involves both telecommunication and bank regulations. But for complaints about this service, the first avenue for redress is often the telecommunication company, if not the telecommunication regulator. This paper investigates the interface between telecommunication and banking regulations and policies to provide safeguards without hindering the industry. However, much of what has been written regarding the regulatory issues with respect to e-money and m-money has been from the side of banking regulations. Banking regulations are based on the need for addressing problems of information asymmetry and controlling, for good or ill, the creation of money outside the government monopoly. It is about regulating risk to the system and risk to the economy. Moreover, bank regulators define their object of regulation for m-money not on whether the relevant entities call themselves banks but on the terms and conditions of how the money that they take from customers are treated and whether or not they extend credit to customers. Among the issues that have been commonly discussed with respect to mobile money pertain to authentication, such as knowing your customer (KYC), authorization and integrity of the transaction, monitoring the amounts kept by individuals and the amounts they send (anti-money laundering), security and redress mechanisms, among others.

Patenting human pluripotent cells: balancing commercial, academic and ethical interests

The article addresses the issue of the ethics of patenting in human embryonic stem (hES) cells. The current stance of the European Patent Office in citing moral objections to patents on hES cells and the monopolistic scope of the Wisconsin Research Alumni Fund/Geron patents granted by the United States Patent and Trademark Office represent twin obstacles to achieving an ethical balance in patent rights in this field. The particular issues and strategies around granting patents on hES cells can be better understood by placing them in the context of the biotechnology industry and its role in the global bioeconomy. Some possible avenues of redress are considered based on the potential to open up cell pluripotency as new terrain for intellectual property offered by new technological breakthroughs such as induced pluripotent cells. Any changes in patent law should be accompanied by increased collaboration through devices such as patent pools.

The Circle of empowerment: twenty-five years of the UN Committee on the Elimination of Discrimination against Women

This book marks the 25th anniversary of the work of the United Nations Committee on the Elimination of all Forms of Discrimination against Women (CEDAW). The job of this Committee is to oversee the Convention on the Elimination of all Forms of Discrimina tion against Women, which is sometimes confusingly also known as CEDAW and which I will call the Women's Convention. The work of the Committee, which comprises 23 members who are experts in issues affecting women, involves receiving reports from states that have agreed to be bound by the Convention, detailing what they have done to improve the situation of women in their countries. In 1999 an Optional Protocol (an addition to the Convention) was adopted. This meant that complaints from citizens of those states that have agreed to be bound by this addition to the Women's Convention could be brought directly before the Committee. An individual is only allowed to do this once she has used up all the available avenues of redress in her country. Under the Optional Protocol, the Committee is also able to undertake enquiries to investigate reports of grave and systematic violations of women's rights in a country. Additionally, the Committee is able to make statements about how it thinks the Women's Convention should be interpreted and implemented. These statements are known as general recommendations. (Other UN treaty bodies call them general comments.) All of these aspects of the Committee's work are covered in the book. The book, which is edited by two sitting committee members, and which comprises chapters written by both former and current committee members as well as those in the UN who have worked with the Committee, is very informative. It starts with a foreword by the last Secretary-General of the UN, Kofi Annan, in which he calls the Women's Convention 'a landmark, because it aims to secure... rights for women in practice.'It then moves on to look at the Convention 'as a living instrument', providing an overview of the Convention and the manner in which some of its provisions have been interpreted by the Committee. Also considered within this first part, is the impact that the Convention has had on the work of UN agencies and conferences. Following that is a section on 'overarching challenges'. Not surprising in light of the reservations' to the Women's Convention, the two major barriers to the successful implementation of the Convention have been religion and the ill-defined 'culture'. These two excuses,

Consumer Protection Policy for Franchisees of Failed Franchisors

Over time, society's needs and expectations have led to franchisees being recognised as a new category of consumer and, since 1998, as a 'business consumer' under section 51AC Trade Practices Act 1974 (Cth) (TPA). In Part I of this paper, consumer policy objectives are identified, particularly in so far as they relate to franchisor failure. Three specific areas of the TPA are briefly explored in Part II for their potential as avenues of redress for franchisees of failed franchisors. They are; section 51AC, in relation to unconscionable conduct, the Franchising Code of Conduct (enacted under section 51AE, TPA), and sections 69 to 74H in relation to warranties implied into contracts for purchase of goods or services.In Part III some of the 'elephants in the room are introduced. It is concluded that whilst rehabilitation rather than vilification now awaits failed business people, the consumer protection law is yet to respond to the needs and expectations of franchisees of failed franchisors.

How to Win Private Plan Appeals

How to Win Private Plan Appeals

Listening to Their Voices: Women Prisoners and Access to Justice in Manitoba

The existing research into effective accountability and oversight of Canadian prisons has considered the situation of federally sentenced prisoners (that is, those serving sentences of two years or more) and has raised serious questions about their ability to access justice in the sense of having adequate and accessible means to ensure that their treatment and conditions of confinement are just and in compliance with the law. Relatively little is known about the state of oversight and legal review processes at the provincial level, where jail terms are short and prisoners’ rights litigation is rare. This paper attempts to begin filling that gap in knowledge by examining the situation faced by women imprisoned in provincial jails in Manitoba. The paper first surveys the existing international and domestic laws concerning prisoners rights and avenues for redress in Manitoba, before moving on to consider why and how those mechanisms are utilized or not, by listening to the voices of women who have been incarcerated recently at the Portage Correctional Centre. Finally, the paper considers what legislative or policy changes might be made to provide access to justice for provincial prisoners, drawing on recommendations and insights from the women themselves.La recherche qui existe au sujet de la responsabilisation et de la surveillance efficaces des prisons canadiennes a porté sur la situation de prisonniers condamnés sous le régime fédéral (c’est-àdire, ceux qui purgent des peines de deux ans ou plus) et a soulevé des questions importantes quant à leur capacité d’accéder à la justice dans le sens de disposer de moyens adéquats et accessibles pour assurer que leur traitement et leurs conditions de détention sont équitables et conformes à la loi. On connaît relativement peu quant à l’état de surveillance et des processus de recours juridique au niveau provincial, où les périodes d’emprisonnement sont courtes et les litiges au sujet des droits des prisonniers sont rares. Cet article vise à commencer à combler ce manque d’information en examinant la situation envisagée par des femmes détenues dans les prisons provinciales au Manitoba. L’article commence par passer en revue les lois internationales et nationales existantes concernant les droits des prisonniers ainsi que les voies de réparation au Manitoba, avant de passer aux considérations à savoir pourquoi et comment ces mécanismes sont utilisés ou non, en écoutant les voix de femmes qui ont été incarcérées récemment au Portage Correctional Center. Enfin, l’article examine quelles modifications législatives ou de politiques pourraient être faites pour que les prisonniers provinciaux aient accès à la justice, en s’inspirant des recommandations et de la perspicacité des femmes elles-mêmes.

Enforcing Migrant Workers' Rights in the United Arab Emirates

AbstractThe appalling treatment of migrant workers in the United Arab Emirates (UAE), who constitute 80 per cent of the population and 95 per cent of the workforce, has largely escaped international scrutiny. The paper analyses the failure to protect migrant workers' rights in the UAE from a domestic and an international perspective. It outlines the extent of the abuses and demonstrates how the state's weak domestic laws have been further undermined by poor enforcement mechanisms and a lack of political will to address the issue. It examines violations of international human rights law and possible avenues of redress, notably those relating to the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, one of only three international human rights treaties that the UAE has ratified. Furthermore, the paper will argue that the UAE's exploitation of the relative economic weakness of its South Asian neighbours has led to a situation that can be characterised as bonded labour of migrant workers, a form of slavery as defined under international law. It will be concluded that domestic labour provisions in the UAE will never be sufficient to provide basic rights to migrant workers due to the de facto control of the private sector by the public sector. Therefore, concerted international attention and pressure will be required to improve a situation in which over two million workers live in terrible conditions, wholly at odds with the wealth and luxury of the country they have helped to build.

‘Past’ Violations under International Human Rights Law: The Indigenous ‘Stolen Generation’ in Australia

This article examines the debate relating to reparations for ‘past’ human rights violations, with particular focus on the case of the indigenous ‘Stolen Generation’ in Australia. The ‘Stolen Generation’ is a term used to describe the government-sanctioned practice of forced removals of part-Aboriginal children from their indigenous parents and placement into non-indigenous institutions and homes, which occurred in Australia from approximately 1910–1970. The ‘Stolen Generation’ violations present a unique and difficult legal question for international human rights law because they straddle the divide between ‘historic’ violations and contemporary acts, that is, they were committed by Australia after Australia signed key agreements such as the UN Charter, the Universal Declaration on Human Rights, the Declaration on the Rights of the Child and the Declaration on the Elimination of All Forms of Racial Discrimination, but prior to its ratification of international human rights treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. This means that bringing a claim under international human rights law in relation to the violations raises a number of problems. The object of this article will be to explore whether Australia can be held responsible under international human rights law for the ‘Stolen Generation’ violations and possible avenues of redress. In this regard, the focus of the article will be on the possible claims victims could make to relevant treaty monitoring bodies and the types of obstacles they would face in doing so. These legal questions are also relevant to the wider debate that is taking place in relation to reparations, namely the extent to which a State can be held legally responsible to provide reparations for past violations.

ADA in the Public School Setting

The Americans with Disabilities Act (ADA) is a sweeping piece of civil rights legislation directly affecting public schools. Although the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act are more frequently applied, ADA may offer both students and employees another avenue for redress. It is at this intersection between the ADA and the IDEA that requirements for anti-discriminatory policies and practices present serious dilemmas for school officials. Typically, over time courts will provide answers about requirements, and state education agencies will promulgate application regulations. In the meantime, school officials grapple on a regular basis with implementing the requirements of the ADA. The authors of this article describe current circumstances that act as a catalyst for reflection, discussion, and proactive—rather than reactive—responses.

Conflicted Justice: The Department of Justice's Conflict of Interest in Representing Native American Tribes

This article addresses an ongoing problem in the area of Indian law. For years, the Native American community has complained of conflicts of interest in the Department of Justice. The conflict within Justice arises from the federal government's special trust relationship with the Indian tribes. The federal government assumed a special trust relationship with the Indian tribes early in the United States' history, that has developed over time through treaties, statutes and case law. The trust relationship represents an affirmative duty on the part of the United States to protect the tribes, serve their best interests and uphold the other trust duties under a standard of good faith. As trustee, the United States, usually acting through the Department of the Interior, manages a significant portion of tribal land and a great deal of tribal resources. The Department of the Interior retains responsibility for many other federal programs and federal lands. The Department of Justice represents Interior and most other federal agencies in court. Thus, Justice must represent both tribal and non-tribal interests, often involving the same land or within the same case. Indeed, Justice must make litigating decisions in these cases with the knowledge that a position in one case may impact another case. A private trustee could not function in the manner that Justice functions. Doing so would violate the duty of undivided loyalty required from a trustee. Justice, however, maintains that the duties of a private trustee do not apply to Justice. In doing so, Justice relies on a Supreme Court case, United States v. Nevada, and a 1979 letter from then Attorney General Griffin Bell. To show the inaccuracies in Justice's position, I examine the underpinnings of Justice's position, beginning with the letter by former Attorney General Griffin Bell and then turning to Nevada v. United States. After also examining the lower courts' interpretation of Nevada, I conclude that Nevada holds simply that when Justice proceeds in the face of congressionally imposed conflicting interests, the doctrine of res judicata still applies to bind the United States and the tribal parties to that litigation. It may seem that Indian tribes could be adequately compensated for conflicts through money damages. However, due to a pair of Supreme Court cases, breach of trust actions based on conflicts of interest are not viable. In this article, I examine and explain how this avenue of redress is effectively closed to tribes. Thus, I argue the solution to the conflict problem must be found earlier in the decisional process. In order to fully protect Native American rights, any successful solution must address the problems created by the Eleventh Amendment and the rules of preclusion. I therefore recommend the creation of a separate litigating agency outside of Justice and Interior and the adoption of special preclusion rules to govern litigation by Justice as trustee. This combination will provide both procedural and substantive protection to the Native American beneficiaries and will allow the United State to fulfill its role as trustee.

Combating Racial Discrimination: The Effectiveness of an International Legal Regime

Summary The use of an international legal regime as an avenue of redress for racial discrimina tion has a long history. The introduction of an International Convention on the Elimina tion of All Forms of Racial Discrimination in 1965 signalled the world's commitment to end racial discrimination. This article reviews the individual communications procedure under the Convention and analyses a few successful cases of complaint against racial discrimination. It argues that this mechanism provides a potent avenue of redress for racial discrimination. Social workers have much to offer in helping their clients to bring their cases to the international arena. In concert with NGOs and legal professionals, they could work to ensure that racial discrimination is tackled on both the domestic and international stages. Linking the global and local levels of intervention against racial discrimination should become the practice of every social worker, whatever their country or field of expertise. Across the world, racial harassment and racist assaults are an ongoing problem and ethnic minorities remain vulnerable. In 1998, the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance reported a resurgence of neo-fascism and neo-Nazism. Xenophobic senti ments appeared to be gaining ground in many European countries and the Rappor teur expressed alarm at the electoral victories of extreme right-wing parties advocat ing attacks on ethnic, national and religious minorities. He concluded that different kinds of racial discrimination are still prevalent, namely, discrimination against blacks, Arabs and Muslims, anti-Semitism, and discrimination against the Roma,