Sunday, February 28, 2010

Guest Blogger: Cecilia Marcela Bailliet

It's IntLawGrrls' great pleasure today to welcome Dr. Cecilia Marcela Bailliet (left) as today's guest blogger.
Cecilia is a member of the Faculty of Law at the University of Oslo in Norway, where she's Professor, Deputy Director of the Department of Public and International Law, and Director of the Masters Program in Public International Law. Born in Buenos Aires, Argentina, she earned her doctorate at Oslo, based on her thesis entitled "Between Conflict and Consensus: Conciliating Land Disputes in Guatemala, A Study in Preventing and Resolving Internal Displacement." Cecilia also holds a combined J.D./M.A. degree, with honors, from the School of Law and the Elliott School of International Affairs, George Washington University, Washington, D.C.
Her fields of research and teaching include International Public Law -- her guest post below considers that subject in relation to the global phenomenon of kidnapping -- Human Rights, Women's Rights, Refugee Law, Counter-Terrorism, and Democracy and Constitutionalism, and Refugee Law. Among her many publications is Security: A Multidisciplinary Normative Approach (Brill 2009), an essay collection that Cecilia edited, authors of which include IntLawGrrls' own Naomi Cahn.
Cecilia dedicates her guest post to a woman about whom we've posted before, the French feminist and philosopher Simone de Beauvoir (below right). Cecilia writes of Beauvoir:

Her novels and autobiographies provide profound reflection on the life experiences of women, highlighting the importance of intellectually intimate connections between individuals (irrespective of gender), and the urgency of engagement in times of political and societal upheaval. The books that I hold most dear: All Men are Mortal, The Mandarins, Memoirs of a Dutiful Daughter, The Prime of Life, and The Second Sex.
In the last book mentioned, Beauvoir characterizes the dilemmas facing women as such: "Thus woman may fail to lay claim to the status of subject because she lacks definite resources, because she feels the necessary bond that ties her to man regardless of reciprocity, and because she is often very well pleased with her role as the Other."

Heartfelt welcome!

Towards holistic transnational protection against kidnapping: public law approaches

(Thank you to IntLawGrrls for the invitation to provide a guest post based on a forthcoming article of mine)

My most recent area of research is the global criminal phenomenon of kidnapping as it relates to an increased presentation of asylum claims in the United States, Canada, Belgium, France, United Kingdom and New Zealand.
This most striking aspect of this problem is that the private market is both part of its origin and part of its solution.
Inequitable enjoyment of socio-economic resources and the exclusion from participation in formal markets prompt marginalized individuals to pursue the criminal market of kidnapping, in which the human body becomes the ultimate commodity. In turn, corrupt and ineffective judicial bodies and police leave family members little choice but to employ private security and insurance companies. This creates a growth industry based on safe return of victims.
At the international level, there has been increased attention, not only from the UN Economic and Social Council, but also from UN Secretary-General Ban Ki-moon (above right), who declared in 2009:

Kidnapping is an inhumane and unjustifiable crime, as well as a gross violation of international human rights and humanitarian law.

Among the related human rights at stake, one may cite:
► guarantees of liberty, physical integrity and security, and the prohibition of arbitrary detention, as detailed in Article 9 of the International Covenant on Civil and Political Rights;
► the right to life, as in Article 6 of the ICCPR;
► the prohibition against torture, in Article 7;
the ban on interference with family, Article 17; and
► protection against sexual violence, established in, for example, the November 16, 2009, judgment (available in Spanish) by the Inter-American Court of Human Rights in Gonzalez et. al. v. Mexico.
Indeed, the most relevant case law has emerged at the regional level, where the focus is on state responsibility for investigating and punishing kidnappers.
The Inter-American Court thus issued 2 notable provisional orders, in:
In the Matter of the Communities of Jiguamiandó and Curbaradó, a case involving the kidnapping and murder of a manm allegedly via complicity by police and paramilitary; the order called for State investigation, identification of perpetrators, and punishment; and
In the Matter of the United States of Mexico Digna Ochoa y Plácido et. al., in which the order called upon the State to protect the lives of human rights activists who had been subject to kidnapping.
Similarly, the Inter-American Commission on Human Rights has repeatedly condemned kidnapping by nonstate actors in countries including Colombia, Guatemala, El Salvador, Venezuela, and Brazil.
In like manner are decisions of the European Court of Human Rights:
► In the case of Avsar v. Turkey, the Court held Turkey to be in violation of Articles 2 (right to life) and 13 (effective remedy) of the European Convention on Human Rights, for failing to carry out adequate and effective investigation in a case involving the kidnapping and killing of a man by village guards with complicity by the state.
► The Court held Russia liable for violation of the same articles in Elmurzayev and others v. Russia and Khadzhialiyev and others v. Russia, cases involving kidnappings by “unidentified armed men” and subsequent delays by the state in investigation and proceedings respecting those crimes.
In large part, the international community’s response to the global threat of kidnapping is reflected in the innovative institutional trend towards horizontal and vertical cooperation across the public-private divide. Initiatives to combat the spread of kidnapping include assistance in border control, intelligence-sharing, police training, and management (seeking transparency, accountability, and professionalization), telecommunication interception, assistance in legislative amendments, extradition, and overview of financial transactions.
Furthermore, there are increased calls for strengthening citizen and community participation in the implementation of security plans. The European Council issued Recommendation 2007/562/EC of 12 June 2007, which requires states to share information in all terrorist kidnappings. Similarly, the need for international cooperation to address crime (including kidnapping) has been promoted by the Organization of American States Permanent Council’s Special Committee on Transnational Organized Crime and the Ministers Responsible for Public Security.
It is important to note issues of continuing concern:
► We still await the establishment of implementation mechanisms for the UN Convention Against Transnational Organized Crime; and
► None of these initiatives highlights the importance of asylum, for victims and their families, as an element of holistic protection.

On February 28

On this day in ...
... 1986, in New York, Laura Z. Hobson (right) died from cancer. She'd been born in the same city 85 years earlier, daughter of Jewish socialists who'd emigrated from Russia and were active in the labor movement. (photo credit) After studying at Hunter College and Cornell, she became a writer, producing "nine novels, an autobiography, hundreds of short stories and magazine articles, and news features and advertising copy in a career that spanned six decades." Hobson's works included The Trespassers (1943), about World War II refugees turned away from the United States; Gentleman's Agreement (1947), the best-selling story of a writer's inquiry into anti-Semitism in New York and Connecticut that soon became a movie starring Gregory Peck; and Consenting Adult (1975), a semi-autobiographical novel about the relationship of a mother and her gay son.

(Prior February 28 posts are here, here, and here)

Saturday, February 27, 2010

Haiti Quake: Next Steps in a Sustainable Response

IntLawGrrls continue to follow developments in Haiti. Posts discussing the 12 January 2010 Haitian earthquake, humanitarian assistance, immigration status for Haitians located in the U.S. and France, human rights and disaster response, and participatory and sustainable recovery and development policies appear here.
Recent or Upcoming Developments
Montreal Meeting. An international donors meeting on Haiti was held in Montreal, Canada in late January. Haiti was represented by its Prime Minister, Jean-Max Bellerive. The European Union and 14 other countries participated.
CARICOM Response. CARICOM (the Caribbean Community) pledged its continued support to the Haitian recovery, initially in the area of health, to be followed by support for long-term sustainable development.
UN New York International Donors’ Conference. The Montreal meeting will be followed by another international donors’ conference at UN headquarters in New York on 31 March 2010.
Lawyers’ Earthquake Response Network (LERN). U.S.- and Haiti-based lawyers organized a network focused on human rights and other legal issues (sponsored by the Institute for Justice and Democracy in Haiti).
ASIL Panel. The program committee has just added a late-breaking panel on Haiti at the American Society of International Law 104th Annual Meeting in Washington, DC. (I will chair the panel; also see post on “Women at ASIL” here). The panel is scheduled for Thursday, March 25, at 10:45 (web program will be updated shortly).
Current Priorities
All that Diane Marie Amann, Marjorie Florestal, Naomi Norberg, Jaya Ramji-Nogales, and I have said in earlier posts remains true. Emergency responses must continue as coordinated by the Haitian government and people and the international community under the mandate of the UN Office for Coordination of Humanitarian Affairs. The many NGOs on the ground themselves coordinate through umbrella organizations such as InterAction and use resource sites such as ReliefWeb.
Housing and Sanitation
More than 1 million people in Port-au-Prince and elsewhere in Haiti are living in tent cities or other make-shift shelters as the rainy season and hurricane season approach.
Although tents are an emergency quick fix for those with no other choice, they cannot be a long-term solution. The overcrowded tent cities do not have proper sanitation and potable water distribution facilities. This situation leads to the rapid spread of infectious disease (especially among those who’ve already been injured). Immediate attention must be given to the acquisition and distribution of more sturdy structures, along with the necessary temporary infrastructure for sanitation and water. Because so many things are interrelated, the overcrowding and lack of adequate shelter cannot be addressed without attention to rubble-removal and voluntary decentralization of the population.
The challenges are difficult and of unprecedented scale, but there are international guidelines and strategies for disaster response and recovery. Those guidelines should be implemented and supported by the Haitian government and by the international community.
As noted in a recent New York Times news story, crush injuries were common after the earthquake. Many amputations resulted from immediate trauma, while others became necessary because of the lack of proper medical facilities and antibiotics in the days and weeks following the quake. Other survivors were blinded, lost hearing, or suffered brain or spinal injuries. Even (especially) in the midst of disaster, the rights of persons with disabilities must be respected, protected, and fulfilled. (See Disability Rights series.)
Local disability resources were devastated by the quake. Haitians now need adaptive equipment (canes, crutches, walkers, rough-terrain wheelchairs, etc.) and trained physical therapists. These resources can help the newly-disabled recover and participate in the rebuilding of the nation. Unless you are a trained physical therapist or health professional, or a non-profit willing to donate appropriate equipment, the best way to help is through existing disability NGOs that already work closely with the people of Haiti.
The following governmental and private organizations provide links to a range of disability NGOs working in Haiti:
United States International Council on Disability (USICD) (US government site coordinating NGO work).
Mobility International USA (webpage on Haiti resources).
PBS Newshour report on the non-profit Whirlwind Wheelchair International ( discusses the group's work to build rough-terrain wheelchairs). As was the case where a large number of amputees resulted from the use of landmines in armed conflicts, responses that are participatory, generate local jobs, training, and owenership, and focus on the empowerment of people with disabilities are to be applauded. Haitian people with disabilities can help build and fit prosthetic devices and wheelchairs, as well as train others in their use.
Those involved in large-scale rebuilding projects for housing, government buildings, or private sector buildings should ensure both accessibility under international standards and durability to withstand the risks of natural disasters.
Note: As this post was being written, news was coming in that an 8.8 earthquake has hit Chile. Our thoughts and solidarity are with all those affected.

Asia on our mind

"The Asian Century?"
So asked participants at yesterday's same-named conference (prior post) organized by our colleague Anupam Chander and sponsored by the Law Review at my home institution, the University of California, Davis, School of Law (Martin Luther King, Jr. Hall).
The answers were myriad, and themselves provoked questions. Indeed, participants on the panel that I had the privilege to moderate questioned the title's very premise:

'Where is Asia? When is Asia?'

Teemu Ruskola queried. To this Keith Aoki added, in effect,

'What is Asia?'

The last "American Century" and the "British Century" that preceded it were different from this notion of an "Asian Century," Keith said. Those others concerned a nation-state; this concerns a continent.
I wonder.
It is persons in the West who put forward this notional Asian Century. Who treat "Asia" as a single entity rather than a mass of entities, as an it rather than a them. Who, at times, see its rising economic power, its rising population, its politics, as potential threats.
Is it possible that those earlier centuries, named as they were with state-centric particularity, were constructs of their subject namesakes? Possible that the objects of those other centuries aggregated threats much like some of us now do "Asia"?
From the perspective of those object persons, might the 1800s and 1900s have been, simply, back-to-back Western Centuries?
Even when pondering with particularity, did the object persons of the 20th view it not as the American, but perhaps as the Russo-American, Century?
Was the British Century a construct of Britain? Might objects of that 19th Century -- persons, say, colonized in Portugal-controlled Africa -- have seen it instead as the European Century? Or perhaps as the Colonial Century, as a time defined less by geographic map and more by method of governance?
Perhaps this 21st Century aggregation says less about "Asia" than it does about our mindset -- about how some in the West seem already resigned to an object status.
That resignation may prove premature.
The final panelist, Tom Ginsburg, reminded that other such prognostications have fallen flat; for instance, past predictions that Japan, Egypt, even Sri Lanka or Burma, would win dominance. Tom's own prediction: Asia will not aggregate into a supranational entity. Some of the many countries in that part of the world indeed may attain power. But they will wield it, Tom ventured, in ways that reinforce the old, the 17th Century, model of independent, noninterference-prizing nation-states.
In store in the 2000s may be not so much an Asian Century as -- to borrow Tom's coinage -- an Eastphalian Era.

(Cross-posted at California-Davis Faculty blog)

On February 27

On this day in ...
... 1888, Lotte Lehmann (right) was born in Perleberg, a German city near Berlin. In her early 20s she made her opera début, as a page in a Hamburg production of Lohengrin. She would go on to perform as a soprano in many stage productions throughout Europe and in hundreds of recordings, winning renown for her work in Germany opera. (credit for photo from 1930s opera, courtesy of the Lotte Lehmann Foundation) She's credited with discovering, in 1936 in Salzburg, the Trapp Family Singers, who'd become world-famous via The Sound of Music. Two years later, just before Nazi Germany annexed Austria, Lehmann immigrated to the United States, where she continued her career, 1st as an opera singer and eventually an opera teacher. Honored here as an Immigrant of the Day, she became a naturalized U.S. citizen. In 1976 she died at age 88 in Santa Barbara, California, where a concert hall is named in her honor.

(Prior February 27 posts are here, here, and here)

Friday, February 26, 2010

Deference to Error?

How many serious errors must an agency make before the deferential standard of review accorded its decisions is revisited? That's the question that came to mind reading yesterday's excellent asylum decision by the Second Circuit. In Kone v. Holder, the court found that the Board of Immigration Appeals' decision (adopting and affirming the immigration judge's opinion) doubly erred, making mistakes both in its application of the law and its findings of fact. Ms. Kone, a national of Cote d'Ivoire, suffered female genital mutilation in her home country and feared that her two U.S. citizen daughters would be subject to the same treatment if she were to be sent back. She was also persecuted for her race, religion, and political opinion.
Even applying the highly deferential standards of review applicable in the immigration field (substantial deference to the agency's interpretation of its own regulation and substantial evidence for the agency's findings of fact), the Second Circuit found that the agency made serious mistakes in Ms. Kone's case. First, the immigration judge failed to shift the burden of proof to the government, as its own regulations require when an asylum applicant proves that they suffered persecution in the past. Notably, the court cites its own precedent for the point that where a woman has already undergone female genital mutilation, this does not lead automatically to the conclusion that no possibility of future persecution exists. Apart from the reality that a woman might be subject to further mutilation, there is no requirement in asylum law that threats must take the same form or be the same act as past persecution. The concept is simple -- if an asylum applicant's arm had been chopped off by government agents who opposed his political opinion, nobody would argue that he'd already lost his arm so wouldn't risk being persecuted again upon his return -- yet somehow judges find it difficult to grasp that a woman who has suffered female genital mutilation might face other forms of persecution, such as rape, based on her gender and ethnicity.
After describing the second error made by the immigration judge (a fundamental factual mistake), the court suggests that Kone might be eligible for asylum on two additional grounds. First, the mutilation she suffered might rise to the level of severe past persecution, which can on its own be grounds for asylum regardless of the risk of future persecution. Second, even if Kone's experience of FGM does not meet this higher standard, it might be sufficient to show past harm in the form of mutilation combined with the "mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child." With stakes this high, and errors this grave, how is it that such great deference is still accorded to these administrative adjudicators?

On February 26

On this day in ...
... 1869, Nadezhda Krupskaya (right) was born in St. Petersburg, then the capital of the Russian Empire, to educated, working parents. Sometime after her studies at a gymnazium, she met the Marxist Vladimir Ilyich Ulanov. Political soulmates, the two were jailed, then married, and then lived in exile before her husband Lenin, as he then was known, spearheaded the Bolshevik Revolution against the czars and became the 1st leader of the Soviet Union. She herself remained active in politics and pressed many causes, among them library reform centered on purging libraries of nonsocialist materials. Krupskaya died in 1939, more than a dozen years after her husband.

(Prior February 26 posts are here, here, and here)

Thursday, February 25, 2010

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[W]omen now outnumber men applying to and graduating from college -- so much so that it appears some colleges are giving male applicants an admissions boost. As a result, the U.S. Commission on Civil Rights is examining whether colleges are engaging in widespread discrimination against women in an effort to balance their male and female populations.
-- Los Angeles Times editorial on "Colleges' gender gap," which includes details on developments at institutions of higher education throughout the United States. Theories on the "why" behind the male deficit abound; the editorial concludes:
There may be no one reason -- or solution. But figuring out ways to help boys achieve in school is a better response to the gender gap than making it easier for them to get into college later.

On February 25

On this day in ...
... 1870 (180 years ago today), the U.S. Senate gained its 1st African American member when Hiram R. Revels (left) was sworn in nearly 5 years after the end of the Civil War. Of the inauguration of the new Mississippi Republican, a barber, minister, and Union chaplain -- who had just overcome a bitter and protracted floor challenge to his credentials -- The New York Times wrote:

The ceremony was short. Mr. Revels showed no embarrassment whatever, and his demeanor was as dignified as could be expected under the circumstances. The abuse which had been poured upon him and on his race during the last two days might well have shaken the nerves of any one.

(Prior February 25 posts are here, here, and here)

Wednesday, February 24, 2010

Write On! ASIL/Egypt conference

(Write On! is an occasional item about notable calls for papers.) Papers are being sought that address the question "Are There Regional Approaches to International Law and Institutions?" -- title of a joint meeting, to be held June 20 & 21 at the Four Seasons Resort in Alexandria, Egypt, by the Egyptian Society of International Law and the American Society of International Law. The aim of the meeting, according to organizers, is "to build a dialogue at the broadest level and also with respect to pressing current issues and controversies, probing the normative commitments and structural features of contemporary international law."
Questions to be explored:
► What methodologies and frameworks are most useful in analyzing contemporary international governance?
► How might our assessments vary as a result of social or geographical location?
► What emerging terrains are created by current international dispute settlement processes – criminal tribunals, commercial arbitration, multilateral trade panels, domestic causes of action seeking remedies for international legal harms?
► What patterns or contrasts, harmonizations or fragmentations, exist across tribunals and regimes?
Exploration will occur in sessions on General International Law, International Law and Human Right, International Criminal Law and Transitional Justice, and International Economic Law. (credit for photo of pink granite sphinx in Alexandria)
Deadline is March 15, 2010 to send proposals of no more than 250 words to our colleague Chantal Thomas, Chair of ASIL's Africa Interest Group, at Complete call for papers is here.

On February 24

On this day in ...
... 1908, in Muller v. Oregon, the U.S. Supreme Court unanimously held constitutional a state law limiting to 10 hours the workday of women in laundries and factories. The decision turned in part on Louis D. Brandeis' "famous brief" that "detailed expert reports on the harmful physical, economic and social effects of long working hours on women," and further on the Court's espousal of "the accepted wisdom of the day: that women were unequal and inferior to men." (photo credit) Brandeis, as we've posted, would himself become a Justice.

(Prior February 24 posts are here, here, and here)

Tuesday, February 23, 2010

The Interlaken Declaration and the European Court of Human Rights

Last week saw the much anticipated Interlaken Conference on the Future of the European Court of Human Rights (conference website), intended to secure workable solutions for the future of the Court. The Court, which started as a part-time court working with a commission, is now full-time and has developed under the recently ratified Protocol No. 14 (which comes into force on 1 June 2010) in order to try to meet the very real challenges of resources and workloads. Those challenges, however, are not entirely resolved by Protocol No. 14 and further work is needed in order to try to ensure the stability and continuing operation of the Strasbourg Court as an important part of Europe’s human rights infrastructure. This raises questions as to what the role of the Court is: is it an adjudicative court that ought to focus mostly on resolving disputes and providing redress, or is it a constitutionalist court? Ought it to be both and, if so, is that a feasible objective? In this post I intend to outline some of the challenges faced by the Court, consider the extent to which this question as to role and function remains unresolved by Protocol No. 14, and consider how this debate might be relevant in the Interlaken process.
The European Court of Human Rights has four main formalised functions to hear inter-state complaints where they arise; to hear individual complaints where they arise and are deemed admissible; to provide Advisory Opinions when requested (Art.47, ECHR); to clarify interpretation of judgments and assess whether judgments are being abided by where requested by a super-majority of the Committee of Ministers (Art.46, ECHR). These are the formal functions of the court, however, and a mere recitation of them or even a detailed analysis of them does not answer the more fundamental question of what role the Court is intended to play.
It is commonly assumed that there is some tension between the Court’s roles as an adjudcative court in individual cases (albeit in a subsidiary manner as complainants must exhaust all domestic remedies first) and its role as a constitutionalist court for the Council of Europe. If the Court is primarily intended to carry out the former role then rules relating to admissibility, remedies, supervision of judgments etc… have an importance that must be jealously guarded. If, however, the Court also, or even primarily, has a constitutionalist role then what is important is not that every individual complainant would have her case heard and adjudicated upon, but rather that judgments of the court would outline and formalise (or ‘harden up’) the constitutionalist principles of the Convention. This kind of role does not require the Court to have particularly open admissibility rules or for every individual complainant to have satisfaction of some kind; rather it requires a more strategic kind of role in terms of case selection (not, one would think, entirely dissimilar to the certiorari decisions of the US Supreme Court)
While most superior courts in domestic jurisdictions carry out both of these kinds of roles without a great deal of difficulty, the European Court of Human Rights faces very particular challenges in doing so. First of all the Court was, until relatively recently, only part-time. Secondly, recent years have seen the expansion of the Council of Europe to more than 40 states from which complaints can flow. Thirdly, the Court was (and continues to be) under-resourced. Fourthly, the Court must deal with an enormous diversity of legal systems within its jurisdiction and to the extent possible master the relevant elements of domestic legal systems in order to effectively analyse the position of a complaint vis-à-vis the Convention. Fifthly, the Court has witnessed an enormous increase in complaints all of which have to be given at least an initial admissibility consideration even if the vast majority of them are never considered on their merits (for failure to be deemed admissible) leading to an essentially unmanageable workload. These five points (which might be boiled down to resources, scope and scale) are perhaps the main areas where the Court’s future—as either an adjudicative court or a constitutionalist court or both—looks vulnerable.
Protocol No. 14 represents an important, although on its own insufficient, attempt to tackle these difficulties. Protocol 14 introduces some important changes into the way in which the Court works especially in relation to admissibility decisions which can now be made by single-judge chambers with the assistance of a rapporteur. In addition, Protocol No. 14 provides that if a single-judge chamber finds that an application is ‘not inadmissible’, forward it to a committee of three judges. The committee of three judges may also make decisions as to admissibility. In addition, these three-judge committees may deliver a judgment in the case if it determines that it is one where the underlying question that arises is “already the subject of well-established case-law of the court” (Art.28, ECHR). The concept of ‘well-established case-law of the court’ is problematic, especially as the ECHR does not operate a system of stare decisis that we are used to in the common law world and may well result in less cases progressing ‘up’ to the seven-judge chambers or, indeed, the Grand Chamber where arguably the most constitutionalist decision making takes place. In addition, Protocol No. 14 introduced the principle that the Court can reject an application where “the applicant has not suffered a significant disadvantage” (Art. 35(3) ECHR).
In some important ways, then, Protocol No 14 attempts to deal with one of the most serious challenges facing the Court from a practical perspective, namely the sheer volume of complaints and the need for effective case management as between the different compositions of the Court. However, these mechanisms as introduced seem also to be focused on trying to maintain the dual functionality of the Court as adjudicative and constitutionalist. This is notwithstanding the concerns expressed by some commentators that the new admissibility requirement and the ‘well-established case-law of the court’ principle might undermine the capacity of the Court to carry out either or both of these functions well. In a new book coming out this summer entitled The European Convention on Human Rights Act: Operation, Impact and Analysis (Round Hall/Thomson Reuters, 2010, forthcoming) which I co-authored with Dr. Cliona Kelly of NUI Galway, we deal very briefly with these concerns (brief merely because the book’s focus is primarily domestic). We argue that in fact the changes introduced by Protocol No. 14 will allow for the continuing performance of both kinds of functions and, inasmuch as Protocol No. 14 increases the role of the Court in supervising judgments, it may “accelerate the hardening of norms within the Convention system and, combined with the now facilitated accession of the European Union to the Convention, greatly advance the process of regional constitutionalisation” (Chap.6).
However, there is genuine concern that the reform of the Court in order to secure its future will result in the sacrificing of one or another of those functions. This is well demonstrated by the following extract from a statement submitted from 156 different NGOs:

The European Court of Human Rights must be a strong Court, accessible to individuals claiming violations of their Convention rights when they have had no effective redress domestically. It should be a Court which will give a reasoned decision on whether a case is admissible, or a reasoned judgment on the merits of a case, without undue delay. The Court should be given the resources by states to function properly, and not at the expense of other Council of Europe human rights mechanisms.

This is no lean demand, and it is one that in my view clearly expresses a desire for the Court to continue to carry out both adjudicative and constitutionalist functions. It asks for the Court to be accessible to individuals who have no domestic redress and to give reasoned decisions without undue delay: an adjudicative and a constitutionalist demand. The submission goes on to call for the strengthening of national enforcement of the Convention. This would enhance the Convention’s constitutionalist character and relocate adjudicative functions under Convention principles to the domestic sphere in a manner that is entirely in-keeping with the subsidiary nature of the regional human rights regime and indeed with the idea of the Convention as a constitutionalising—or if one would prefer, harmonising or synergetic—document. The group of NGOs then goes on to make the following exact proposals:

Any reforms to the European Court of Human Rights should ensure that:
• the fundamental right of individual petition is preserved and not further curtailed;
• there is an efficient, fair, consistent, transparent and effective screening of applications received, to weed out the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
• judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
• the Court is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies;
• solutions to the problems faced by the Court, including the varied reasons for inadmissible applications, are devised on the basis of informed analysis, transparent evaluation of both the root of the problems and recent and future reforms.

Again, these more exact and specific requests display a desire for the Court to be both adjudicative and constitutionalist. The reality is that continuing with that duality of function is resource-heavy and it is right to argue that the Court must be fully resourced including by the continuing development of research units, rapporteurs, clerks etc… and the continuing cultivation of a body of expertise in Strasbourg both for the benefit of the Court and for the benefit of the legal systems to which people working in Strasbourg might subsequently return. However, no amount of resourcing will bring about the concrete enforcement of the Convention at domestic level and that is necessary for the Court and Convention to work. This is something that Interlaken can not secure; it must be brought about through domestic politico-legal action in every one of the member states (and some, inevitably, will need to do more than others). What is certain, however, is that Interlaken and the process that follows it must confront this question of role and function and, if the duality is to be maintained, must frame its proposals for the future of the Court with the demands of such duality fully in mind.
On Friday the Interlaken Declaration was issued. Although it contains a lot of material of interest (much of which is really about nuts-and-bolts resourcing of the Court), for the purposes of this post it is worth noting that individual petition is reaffirmed as a “cornerstone” of the Court and Convention. That notwithstanding, there is also a call for further ‘filtering’ to be introduced which suggests that the focus within the Court itself—and certainly within the larger compositions and the Grand Chamber—will be on cases that present opportunities for constitutionalist decision-making; a development that may not please those who believe in the importance of the Court’s adjudicative role if it results in the watering-down of the principle that all applications will be considered to at some degree.

(Cross-posted at Human Rights in Ireland)

Afro-Colombians' plight

(It’s IntLawGrrls’ great pleasure to welcome back alumna Gay McDougall, who guest-posts on her current work as U.N. Independent Expert on Minorities)
During my official visit this month to Colombia (flag at left), I had an opportunity to meet with both President Álvaro Uribe and numerous senior government officials and to consult with persons from Afro-Colombian communities. This dialogue was in keeping with my mandate on minority issues, and helped to promote implementation of the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic minorities.
Focusing on communities who identify as Afro-Colombian, Black, Raizal and Palenquero, I visited cities and regions where these communities are prominent.
This post summarizes the preliminary views I set forward here; my findings and recommendations will be fully developed in my report to the U.N. Human Rights Council.

The story of Afro-Colombians begins with slavery and the massive and gross violations of the rights of African descendants that terrible chapter in history entailed. In Colombia, as slaves escaped, they were forced to find refuge in nearly uninhabitable, geographically remote regions of the Atlantic and Pacific coasts, shown in the darkest color at right. (map credit) There they built communities and livelihoods under conditions of extreme isolation, harsh climate, and often extreme poverty.
As in many other countries, the legacy of slavery endures and is manifested in communities that are socially and economically marginalized, facing racist attitudes and structural discrimination. The Colombian government has made efforts to address certain aspects of the disparities faced by Afro-Colombians, but the legacy of slavery continues to have a profound impact.
New challenges also have emerged.
Afro-Colombian settlements, in rural areas and town ghettos, rival only the reservations for Indigenous peoples as the very poorest in Colombia, with extreme poverty rates of over 60%. Surveys suggest that 80% of Afro-Colombians do not have basic needs met. Infant mortality rates in Chocó and Cauca are 54 per 1,000 of the population. Life expectancy in Afro-Colombian regions is only 55. Illiteracy rates for Afro-Colombians are estimated to be twice the national average. The responses of the national Government and regional authorities have been inadequate and must be addressed as a matter of urgency.
The recent census failed to capture the full demographic and socio-economic picture of the Afro-Colombians, estimated at between 10% and 25% of Colombia’s population. Additionally there is virtually no disaggregation of socio-economic data by race, so government policies are based on faulty data. I often heard from Afro-Colombians that they feel statistically "invisible", and that consequently their issues are ignored, their lives are less valued and that government policies dedicated to their needs are not achieving the desired improvements to their situations.

Legal Framework
Colombia has an impressive and commendable legislative framework that recognises many rights of Afro-Colombians, starting with the Constitution of 1991 which recognizes not only the right to non-discrimination but also the right to equality for all citizens. It also pledges to protect the ethnic and cultural diversity of the country and it promotes the political participation of minorities by establishing two reserve seats in the House of Representatives for Afro-Colombians.
Law 70 of 1993 recognises the right of black Colombians to collectively own and occupy their ancestral lands, and also reinforces rights to education, health and political participation.
While such measures are praiseworthy, the vast majority of communities and organizations that I consulted complain that implementation remains woefully inadequate, limited and sporadic. And where steps have been taken, no real enforcement has followed. As one woman told me:

‘The laws say all the right things but still, nothing has happened.’

Displaced & dispossessed
Displacement was highlighted as the highest priority issue for many Afro-Colombians. Those lands onto which runaway slaves were forced to retreat, while isolated and neglected for centuries, have in recent years been identified as the most fertile and resource rich of Colombia’s territory. This has placed these once isolated, largely self-sufficient communities directly in harm’s way.
These are also some of the most strategically important regions for guerrillas, former paramilitaries and other armed groups currently involved in narcotics production and trafficking. While the government has adopted a political position that the armed conflict has ended and paramilitary groups have demobilized, in many rural black communities that I visited I heard emotional and credible stories of murders and threats to the lives of community leaders.
The number of internally displaced persons ranges from an official tally of 3.073 million to civil society estimates as high as 4 million -- constituting the world’s second largest internal displacement situation. Those few who returned have found that others have claimed ownership or rights of usage in their absence.
Victims and communities believe that there is complete impunity for all of those who commit crimes against them.
I was pleased to meet with the Vice Minister of Defense and representatives of the police and the military during my visit. I was told of important steps being taken to build armed services that are aware of and responsive to the rights of Afro-Colombian communities and to break with the pattern of past violations. These efforts are welcome. However, more must be done to protect vulnerable communities and their leaders.
I would like to commend the work of the Ombudsman’s office in establishing a system of early warning and risk assessment for communities and leaders under threat. But the office’s alerts must be assessed by a committee of the security forces and civil institutions at the national level, which has frequently discounted the credibility of the alerts.
Displacement has particularly affected women, who have been displaced to urban areas in greater numbers than black men, and who suffer extreme vulnerability when they are. Ancestral lands from which Afro-Colombians are displaced are not only the source of livelihood and survival for communities, they are also essential for the preservation of Afro-Colombian culture, livelihood, language, tradition and for maintaining the social fabric of communities. (credit for 2007 Fiesta Palenque photo) The effects of displacement require solutions for both rural and urban communities, as recognized in a landmark decision of the Constitutional Court, Order 005 of 2009. The Court concluded that Government must act comprehensively to address the rights and needs of Afro-Colombians who are displaced and ordered specific measures; to date these have not been effectively implemented.
I welcome the establishment of the Intersectoral Commission for the Advancement of the Afro-Colombian Population, and hope that its recommendations will quickly move from the planning phase to the phase of actually impacting the lives of those who are suffering.

Women & violence
Afro-Colombian women spoke to me of their experiences, the violence committed against them, including sexual violence, the fear and trauma that they have endured on a daily basis and the challenges of their lives as women and mothers living under conditions of conflict, displacement and poverty. The rights of women to return to their community lands in security must be considered a priority.
When men have been killed, disappeared or forced to flee, women have assumed leadership roles in their communities and have shown remarkable resilience and resistance. However they do not receive the necessary recognition as community leaders and are not afforded the protection measures that they require. Mothers also spoke of losing children to forced recruitment into guerrilla and illegal armed groups.

Economic interests & "inconvenient rights"
Many Afro-Colombians have been displaced by "megaprojects", large-scale economic operations, often involving national and multinational companies, promoted by the government as bringing development and economic gain to the whole of Colombia. The communities have grave concerns about encroachment on their land rights and adverse environmental impacts; however, in the face of such economic interests and megaprojects it appears that the rights of communities are "inconvenient rights" and that the laws put in place to protect them are equally inconvenient.
Decree 1320 of 1998 requires that "prior informed consultation" must take place with Afro-Colombian and indigenous communities for the exploitation of natural resources within their territories. However I was informed that projects have been implemented without consultation or with consultations held with people who do not legitimately represent communities. Consultations must be meaningful and effective; importantly, International Labour Organisation Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, which this decree purports to incorporate into domestic law, requires that prior and informed consent of communities before projects are implemented on their lands.

Participation in decision-making
Despite the importance of political participation (prior post), Afro-Colombians are extremely poorly represented in political structures and institutions in Colombia and consequently the voices and issues of Afro-Colombians are not being sufficiently heard or given the attention that they deserve.

On February 23

On this day in ...
... 1946, General Tomoyuki Yamashita (right) was executed by hanging at Los Baños Prison Camp, 30 miles south of Manila in the Philippines. As posted, the previous December a U.S. military commission had applied a theory of command responsibility to convict Yamashita, the leader of Japanese troops that committed atrocities during an unsuccessful battle against the United States for control of the Philippines. Earlier in February 1946, the U.S. Supreme Court had denied the appeal lodged by Yamashita.

(Prior February 23 posts are here, here, and here)

Monday, February 22, 2010

Making Aid Work for Haiti

Even as the crisis in Haiti falls away from the front pages of our newspapers, the critical work of rebuilding has begun. This phase of the crisis does not have the high drama of watching someone being pulled out of the rubble alive after several days; it does not tug at the heartstrings as does the image of a dead little girl lying underneath a heap of rocks. But make no mistake: This is the moment when Haiti's future is being rewritten. The decisions being made today--many of which are not being made by Haitians themselves--will set the stage for Haiti's development well into the next century. My biggest fear is that as media and popular interest dies down, Haiti's redevelopment will be left in the hands of "the experts" who will proceed with business as usual.

I say this not to disparage experts in development; after many years focused on trade and development myself, I would have to admit I belong in that camp. Rather, I fear that if Haiti's redevelopment is left exclusively to donors, economists, lawyers, grant writers, consultants and other technocrats, we will construct a new Haiti that serves our own interests rather than the interests of the Haitian people. There is much in the field of development that needs to be changed. Too often, countries provide aid with so many strings attached that much of the money finds its way back to the donor country in the form of consultant fees or requirements that goods and services be sourced from the donor country. Money that would otherwise boost the economy of the beneficiary country evaporates into thin air only to reappear in Northern bank accounts. Donor countries then tout their "successes." This must change.

In recent days, the "nitty-gritty" of development politics has been the subject of some high level discussion. Both Ambassador and Mr. Clinton have spoken on the need to revamp aid agencies and funding mechanisms. It would be a good start. In addition, I think we need to reconsider the very projects we fund. One key requirement for a project should be its sustainability. In short, every project funded in Haiti (and elsewhere in the developing world) ought to have as its fundamental objective the obligation to train Haitians to take over once the foreign consultants have gone. If the goal is to train locals, then the very design of the project itself would have to change. The projects would have to be fully funded, multi-year measures; short term projects that merely contemplate flying in consultants to do the work should be disfavored. We need to identify talented Haitians and commit to training them over the course of a few years. There are so many Haitians just waiting for the opportunity to make a worthy contribution to their country. Our aid projects should be designed to allow them just such an opportunity.

I am speaking on the Haitian crisis at a forum hosted by California State University Sacramento today at 11 am. Please join us online if you can at Use real name as the Login name and leave the password field blank. Online participants are asked to test their computers by going to and are asked to login between 10:30am and 11am on February 22, 2010.

On February 22

On this day in ...
... 1630 (380 years ago today), in what's now the United States of America, English settlers discovered the delights of an indigenous treat, popcorn (left), "when Quadequine, brother of
Massasoit (chief of the Wampanoag tribe), brought a deerskin pouch of the stuff to them." The puffy morsel was called "popcorn" as a derivation from "the AmerIndian phrase 'maize blown up by fire.'"

(Prior February 22 posts are here, here, and here)

Sunday, February 21, 2010

Guest Blogger: Saira Mohamed

It's IntLawGrrls' great pleasure to welcome Saira Mohamed (left) as today's guest blogger.
Saira, who will join the faculty at the University of California, Berkeley, School of Law this fall. She earned her J.D. in 2005; currently, she is the James Milligan Fellow at Columbia. While a student, she was Executive Articles Editor of the Columbia Law Review, a James Kent Scholar, a Harlan Fiske Stone Scholar, and recipient of the David Berger Memorial Prize for academic excellence in international law. Saira also holds a Master of International Affairs from Columbia’s School of International and Public Affairs, and a Bachelor of Arts degree in history and international studies, cum laude and with distinction, from Yale College.
Before beginning her fellowship, Saira was Senior Advisor to the U.S. Special Envoy for Sudan and Attorney-Adviser for human rights and refugees in the Department of State. Before that, she clerked for Judge Kim McLane Wardlaw, U.S. Court of Appeals for the Ninth Circuit.
Her research and publications concentrate on public international law, international criminal law, and postconflict justice and reconstruction. In her guest post below, she discusses her analysis, in a new ASIL Insight, of the newest International Criminal Court decision respecting Darfur-related charges against Sudanese President Omar al-Bashir.
Saira dedicates her post to

lawyer, suffragist, and journalist Crystal Eastman, a founder of the modern American civil liberties movement, who recognized the connection between the domestic struggle for civil liberties and the worldwide movement for international peace.

Among other things Eastman (right), who lived from 1881 to 1928, cofounded the American Civil Liberties Union, drafted the 1st workers compensation law in the United States, helped to draft the Equal Rights Amendment, and took part in the formation of what today is known as the Women's International League of Peace and Freedom. After Eastman died in 1928 at age 47, a eulogist said of her:

'She was for thousands a symbol of what the free woman might be.'

Heartfelt welcome!

ICC Appeals Chamber & the Bashir warrant

(Many thanks to IntLawGrrls for inviting me to contribute this guest post)

The Appeals Chamber of the International Criminal Court recently ruled against Pre-Trial Chamber I's March 2009 decision granting granting an arrest warrant against Sudanese President Omar al-Bashir (below left) only on charges of crimes against humanity and war crimes, but not for genocide charges. (photo credit) (Prior IntLawGrrls post) The Appeals Chamber's ruling has alternately been:
► Hailed as a momentous development in the ICC’s attempts to pursue Bashir; and
► Dismissed as a meaningless procedural move that could have been accomplished without an appeal—and without the seven months it took the five-member panel to reach a decision.
As I explain in my ASIL Insight on the decision, perhaps it is neither one. But it is important nonetheless.
The Appeals Chamber’s decision centered on the proper interpretation of Article 58(1)(a) of the Rome Statute, which requires the Pre-Trial Chamber to grant the Prosecutor’s request for an arrest warrant if

[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.
The Appeals Chamber held that by requiring that genocidal intent be the only reasonable inference available from the evidence, rather than only one of the reasonable inferences available, the Pre-Trial Chamber had constructed too rigorous a standard for determining what constitutes “reasonable grounds to believe.”
The Appeals Chamber, however, left it at that, and it did not define a standard for evaluating whether “reasonable grounds to believe” exist; that determination is left up to the Pre-Trial Chamber. Nor did the Appeals Chamber use its power under the ICC’s Rules of Procedure to decide on its own to issue the warrant for Bashir on the genocide charges. That, too, is up to the Pre-Trial Chamber. Given the divergence of views about whether the violence in Darfur—which according to UN officials has caused some 300,000 deaths and forced more than 2.7 million people from their homes—constitutes genocide, a decision by the Pre-Trial Chamber to issue the warrant on genocide charges is not a sure thing. And with Bashir still in power—Bashir recently received the official nomination of his party to run again for the presidency in Sudan’s April elections—the Appeals Chamber’s decision looks even less like a development of much import in the fight for accountability in Darfur.
Perhaps that is a fair assessment of the decision.
But even if it results in the ICC eventually holding a sitting head of state criminally responsible for genocide, the Appeals Chamber’s decision is also significant, right now, for what it tells us about international criminal law and about the internal dynamics of the Court:
► As a preliminary matter, the Appeals Chamber corrected an error in the Pre-Trial Chamber’s interpretation of the “reasonable grounds to believe” standard, an error which, had the Prosecutor chosen not to appeal, would have impacted future cases dealing not only with genocide charges, but also with any other crimes under the ICC’s jurisdiction.
► Moreover, beyond this important advance in interpretation and application of the Rome Statute, the decision provides a fascinating glimpse into the Appeals Chamber’s vision of its own powers relative to the Pre-Trial Chamber, and of the Pre-Trial Chamber’s powers relative to the Office of the Prosecutor. In finding error in the decision of the Pre-Trial Chamber, but reserving for that body for the ultimate determination about the standard for issuance of a warrant and the grounds for the warrant itself, the Appeals Chamber is protecting the Pre-Trial Chamber’s role as the gatekeeper for investigations, as the check on the Office of the Prosecutor, while at the same time it is preventing the Pre-Trial Chamber from too strictly performing these necessary functions.
In short, the Appeals Chamber has defined for itself a limited role in interlocutory appeals—a role that holds great power despite its limits.

On February 21

On this day in ...
... 2000 (10 years ago today), Dr. Lynda M. Haverstock (right) became the 19th Lieutenant Governor of Saskatchewan. Born in 1948 in the community of Swift Current in that same province of Canada, Haverstock dropped out of high school, yet later earned both her doctorate in clinical psychology and her master's degree in education. "[H]ighly regarded for having established innovative programs for disabled students, chronically truant adolescents, and farm families in crisis," Haverstock became, in 1989, "the first woman to be elected leader of a political party in Saskatchewan when she became the leader of the Liberal Party." She "was immensely popular" in government, and served as Lieutenant Governor until 2006. (photo credit)

(Prior February 21 posts are here, here, and here)

Saturday, February 20, 2010

Go On! "The Asian Century?"

(Go On! is an occasional item on symposia and other events of interest) Next Friday, February 26, the University of California, Davis Law Review will host "The Asian Century?," a conference exploring how the rise of Asia might bolster or hamper efforts to expand human capabilities. Experts will consider economic and human rights issues through the lens of their diverse areas of expertise, including multinational corporations, intellectual property, human rights, gay rights, the status of rural persons, national security law, and constitutional law. Cosponsoring the event is the California International Law Center, where I serve as Fellow.
Session topics include "Human Rights Under Stress," "The Concept of Asia in International Law," "Lost in Translation?." The symposium features a keynote address by Chicago Law Professor Martha Nussbaum (left); among those presenting papers will be 2 of IntLawGrrls' guests/alumnae, Afra Afsharipour and Lisa R. Pruitt.
The event is all day and free; details here.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[T]hose gathered at Marine House made it clear they've already accepted the idea of gays and lesbians serving among them.
Of far more interest to them were other areas, they told Mullen, such as allowing women to serve in infantry units.

-- Navy Admiral Mike Mullen's sense of what concerns today's active-duty troops, based on a Q&A session between Mullen, chairman of the Joint Chiefs of Staff, and "two dozen or so" rank-and-file servicemembers at a U.S. military facility in Amman, Jordan. Indeed, Mullen told McClatchy news reporter Nancy A. Youssef, he's done 3 of these sessions in the last couple weeks, and "not a single service member" has expressed any concern about the Obama Administration's moves toward putting an end to "Don't Ask Don't Tell," a 17-year-old U.S. military policy about which IntLawGrrls have posted here and here.

On February 20

On this day in ...
... 1980 (30 years ago today), The New York Times reported that "the White House reaffirmed today what officials termed a 'final and irrevocable' decision for the United States to boycott the Olympic Games in Moscow" (logo at right) slated for the summer of the same year.
The move -- spurred by President Jimmy Carter's opposition to the presence of Soviet troops in Afghanistan -- is worth recalling even as, now, we watch the ongoing Winter Olympics in Vancouver, Canada (logo at left).

(Prior February 20 posts are here, here, and here)

Friday, February 19, 2010

The Grannies Fight Back!

From the troubled shantytowns of Nairobi comes an inspiring story of women working together to protect themselves in a lawless zone. Sheila Kariuki, a 29-year old Kenyan woman, runs a self-defense group in the Korogocho slum (pictured left), one of the most dangerous areas in the country. Just a few miles from downtown Nairobi, Korogocho contains an estimated 155,000 people packed into less than a square mile of space. Police protection is non-existent, enabling rapists to attack with impunity. And because these violent young men believe that younger women are infected with HIV/AIDS, they have taken to attacking women three or four times their age. That's where Kariuki's classes come in. Trained in self-defense techniques drawn from karate, kung-fu, and taekwondo and developed by American feminists, she teaches a free weekly class for older women. The star performer in her group, Gladys Wanjiku, estimates her age at "about 100" yet confidently attacks a punching bag using the techniques learned in the class. Kariuki teaches the women to aim for the most vulnerable points on male attackers, and notes, "You don't need to hit hard to be accurate." She also teaches the women to yell rather than scream, "When you yell, you are in control, relaxed, telling the world that you don't like what these young boys are doing to you, and telling them to stop." Most of these women live alone in brick shelters, with a small lock if they're lucky, so the classes perform a vital protective function. Indeed, Kariuki has received reports of old women who have scared off would-be rapists using the verbal and physical techniques taught in her class. You go, grannies!