'Nuff said

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

'The Court was explicit in explaining what is required to ensure indigenous and tribal peoples’ right to consultation. The Court stated that the obligation to consult is the responsibility of the state; therefore, planning and conducting the consultation process cannot be delegated to a private company or a third party. The Court also considered that the consultation process should entail a “genuine dialogue as part of a participatory process in order to reach an agreement,” and it should be conceived as “a true instrument of participation,” done in “good faith,” with “mutual trust” and with the goal of reaching a consensus.'

–  Lisl Brunner, a human rights specialist with the Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, and Karla Quintana, a human rights specialist with the Commission's Litigation Group, in an ASIL Insight entitled "The Duty to Consult in the Inter-American System: Legal Standards after Sarayaku." The co-authors set forth the reasoning in Caso del Pueblo Indígena Kichwa de Sarayaku v. Ecuador (June 27, 2012), in which the Inter-American Court of Human Rights held that the respondent state was liable for failing to discharge its duty to consult with the indigenous Sarayaku people in connection with an oil project, undertaken in 1996, that destroyed part of a rainforest in the people's traditional lands.
As Brunner (right) and Quintana (left) explain, although the decision arose within the inter-American human rights system, it is likely to have impact on actors brought before other regimes as well; for example, those that consider: the International Labour Organization Convention No. 169, titled the Indigenous and Tribal Peoples Convention; the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the African Charter on Human and Peoples' Rights.

Migrant domestic workers and EU migration law

(credit)

(Part 1 of a 2-part series; Part 2 is here) 

Here at University College Cork, we recently launched an Irish Research Council funded Senior Fellowship project on migrant domestic workers and European Union Migration law regimes. (You can follow us on Facebook here!) The project examines the intersections of migration law regimes with evolving human rights standards on domestic work, and on the rights of migrant workers.
This blog series has two parts. In this first part today, I examine some of the recent developments in international law relating to migrant domestic workers (of which there are several). In the second part, posted by my colleague, Dr Clíodhna Murphy, will examine the changes recently introduced to the overseas domestic worker regime in the United Kingdom. As she'll explain, these changes have rolled back significant reforms secured through domestic workers’ activism over the last decade.

(credit)

Recent developments
It is now just over one year since the adoption of the landmark International Labour Organisation Convention on Decent Work for Domestic Workers. Uruguay has become the first country to ratify, and just two ratifications are needed to ensure that the Convention enters into force. A number of states have indicated their intention to sign and ratify, including the Philippines, Norway, Belgium, Brazil, Peru and Namibia.  An extensive advocacy campaign is under way in the Philippines to urge the government to ratify and trigger entry into force of the Convention before the end of July. Details on the campaign are available here.
Human rights law has somewhat belatedly begun to address the structured inequalities and exclusions that structure the domain of domestic work.
According to the ILO, domestic workers remain unprotected by labour laws in around 40% of the world’s countries. Often they are excluded from labour and social protections extended to other workers as a matter of right. Recent standard-setting initiatives have attempted to address this gap, and so have included the adoption of the ILO Convention, as well as a General Recommendation (no. 26) from CEDAW on Women Migrant Workers and a first General Comment from the Committee on Migrant Workers and their Families.
The ILO Convention is intended to mark a transition from paternalistic conceptions of ‘good employers acting out of a sense of noblesse oblige’, to respect for domestic workers' labour rights. The Convention seeks to extend core labour rights concerning fair terms of employment and decent working conditions to the realm of domestic work. Against the background of this ‘justice cascade’, however, migration laws continue to limit the promise of human rights law. States remain reluctant to acknowledge the ‘dissensus’ that arises between ‘border norms’ (to borrow Linda Bosniak’s words) and human rights law.
The Siliadin, Rantsev and Osman cases before the European Court of Human Rights, and the pending cases of Kawogo, CN and O.G.O. (all against the UK), drawing on Article 4 ECHR (prohibiting slavery, servitude and forced labour), highlight the nexus between immigration laws, migration status and vulnerability to exploitation. The emerging body of positive obligations jurisprudence under the ECHR, specifically in relation to Article 4, could potentially extend to the sphere of immigration law itself.

Revisiting Cotton Field amid continued violence

Sensational headlines regarding violence in Mexico, particularly in the city of Ciudad Juárez, are sadly not unusual. However, it is notable that recent headlines have again begun to highlight patterns of targeted, brutal violence against the women and girls of Ciudad Juárez, a city of about 1.3 million people, located just over the border from El Paso. (map credit)
The issue of targeted violence against the women and girls of Ciudad Juárez began in 1993. Between 1993 and 2003, approximately 300 women were murdered, while an equal number were disappeared. Theories regarding the reasons for this violence abound, many of them focusing on private actors; however, the state of Mexico was also implicated, particularly for its failure to adequately investigate the disappearances and deaths of women and girls.
The families of three women and girls who disappeared and were found murdered in 2001 brought complaints to the Inter-American Commission on Human Rights regarding the deaths of their daughters and the ways in which the investigations into their deaths were handled. The Commission ultimately referred the complaint to the Inter-American Court of Human Rights (left).
In its 2009 judgment in the Case of González et al. (“Cotton Field”) v. Mexico, the Court held Mexico to be responsible for human rights violations based on the handling of investigations into disappearances and deaths of women and girls in Ciudad Juárez. The state's actions, the court opined, contributed to the atmosphere of impunity surrounding the maltreatment of women in the city. (IntLawGrrls' past posts regarding this Cotton Field decision can be found here, here, and here.)
Stories of more recent violence against the women and girls of Ciudad Juárez, combined with crime reports indicating that over 700 women and girls were murdered in Ciudad Juárez between 2008 and 2011, at first call into question the meaning of the Cotton Field case.
It would not be difficult to extrapolate further, and question the overall meaning of the Inter-American human rights system given the escalation of gender-targeted violence that has occurred in Ciudad Juárez since the Cotton Field decision.
This view would, however, discount the very real place of the Inter-American human rights system in developing meaningful legal norms and take the focus off the responsibilities of the state to respect and implement the judgments of the Court.

Welcoming Sarah Rogerson

It's our great pleasure to welcome Sarah Rogerson (left) as an IntLawGrrls contributor.
Sarah is an Assistant Clinical Professor of Law at Albany Law School, where she directs the Family Violence Litigation Clinic, in which students handle cases involving child custody and support, family offense petitions, and orders of protection, including those for immigrant women and children.
In addition to her J.D., Sarah holds a Master's Degree in Diplomacy and International Relations and a LL.M. with a concentration in international law from Southern Methodist University Dedman School of Law. Prior to joining the Albany Law School faculty, Sarah completed a Teaching Fellowship at Baltimore Law School in the Immigrant Rights Clinic. She also directed an asylum law program at a non-profit in Dallas, Texas and worked in private legal practice.
Sarah's scholarship focuses on the intersections of family law, immigration law and international law. In her introductory post below, Sarah discusses the impact of the Inter-American Court of Human Rights decision in Atala v. Chile on future domestic family law decisions involving issues that implicate prevailing social prejudices.
Heartfelt welcome!

Child custody, sexuality & human rights: Atala ruling in perspective

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

Earlier this year, the Inter-American Court of Human Rights  issued its decision in Atala v. Chile (decision in Spanish; a summary of the decision in English can be found here), finding that the Chilean government violated a lesbian mother’s human rights by terminating her relationships with her three children and assigning custody to their straight father. As noted in a previous IntLawGrrls post by Alli Jernow, it was the first sexual discrimination case ever heard by the Inter-American Court. As such, the case generated quite a bit of interest in the United States, prompting a number of human rights organizations to file a 60-page Amici Curiae brief, including the International Women's Human Rights Clinic at CUNY Law. (Prior IntLawGrrls' posts on the Atala case can be found here and here.)
The Inter-American Court’s opinion closely follows the arguments presented in the brief, and re-conceptualizes the status of lesbian and gay parents engaged in custody disputes in family courts involving their former hetero partners.
As the amici argue, empirical social science data may be helpful in determining whether a parent’s sexual preference has an impact on their children, but prevailing social attitudes and moral imperatives have no place in the legal assessment of the best interests of the children. Further, the brief noted that social science research to date has shown that the sexuality of a child’s parents has no effect on the child’s development or behavior.
One of the main assertions of the Atala panel was that adjudicators who drew negative inferences from the sexuality of lesbian and gay parents in custody disputes did so by positing that the children would suffer in their care and therefore, affording those parents custody rights was not in the children’s best interest. In effect, the panel asserts, the courts were using the best interests of the children as a proxy for social discrimination, rather than raising legitimate concerns relevant to the best interest analysis. This is the most important contribution of the Atala decision to the international legal debate concerning the role of the state in both protecting individual rights (family and sexual orientation) traditionally perceived of as “private” matters and the myriad normative issues that arise when internationally defined individual human rights are violated by the actions of state governments.
Another interesting issue raised by the Inter-American Court was the promotion of an expansive view of the definition of family, which is to be distinguished from a closed or traditional definition limited to two parents of the opposite sex in a monogamous relationship.

Chávez vs. Inter-American human rights system

The regional human rights system of the Organization of American States is under attack.
Venezuelan President Hugo Chávez, struggling against both cancer and an emboldened opposition, is making a high-profile push for Venezuela to withdraw from the Inter-American Human Rights Commission.
The Presidents of Bolivia, Ecuador and Nicaragua have joined Chávez in calling for the creation of an alternative regional human rights system sans United States and Canada.
And even the more centrist Latin American leaders are taking shots.
A group of states including Brazil and Peru have asked the OAS to curb the Commission’s power to issue preliminary measures.
President Dilma Rousseff of Brazil  temporarily withdrew the country’s envoy to the OAS last year after the Commission called on Brazil to halt work on the massive Belo Monte dam.
President Ollanta Humula of Peru accused the Commission of exceeding its mandate by referring to the Inter-American Court of Human Rights a highly polemical case still stalled in Peru’s courts. He seemingly vowed to defy any future Court order for Peru to punish those responsible for the crimes at issue.
Are these threats serious?
► On the one hand, ire from political leaders is nothing new to the Inter-American system, and arguably even a symptom of its effectiveness. Like muckraking journalists, perhaps human rights bodies are at their best when everyone is mad at them.
Much of the pushback, at any rate, is symbolic politics.
► On the other hand, the threat from Chávez (prior IntLawGrrls posts) may be genuine cause for concern.
Chávez, who seems to be losing his battle against cancer, recently constituted a Council of State, the Venezuelan Consejo de Estado, and announced that its first order of business should be Venezuela’s withdrawal from the Inter-American Commission. (credit for above photo of OAS headquarters in Washington, D.C., where Commission meets; credit for photo below of Inter-American Court headquarters in San José, Costa Rica)
 It is not clear what this would mean. As OAS Secretary General Miguel Insulza pointed out, there is no mechanism for withdrawing from the Commission: the Commission was created pursuant to the OAS Charter, so perhaps the only way is to withdraw from the OAS itself.
The Council of State is still studying the matter.
That Venezuela denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States last January shows that Chávez’s threats are not idle.
More troubling still is that Chávez is a regional trendsetter.
His closer allies, including Ecuador’s President Rafael Correa, Bolivia’s President Evo Morales, and Nicaragua’s President Daniel Ortega, could try to follow suit. All of them have been targeted by the Commission for their suppression of media freedom of expression, and all have voiced exasperation with a system which, they claim, is unduly influenced by the regional hegemon (that would be the United States, which, though an OAS member, has not given jurisdiction to the Court, and mostly ignores the Commission’s opinions).
Venezuela’s withdrawal would be a serious blow.
As noted in a letter of protest from over 200 concerned academics (among them, IntLawGrrls contributors Caroline Bettinger-López and me, Alexandra Huneeus):

Brazil’s Amnesty Commission: A combination truth and reparations body

I had the honor of attending a public session of Brazil’s Amnesty Commission recently. The Commission was sitting that week in Porto Alegre, where I participated in a conference entitled Limites e Possibilidades da Justiça de Transição: Impunidade, Direitos e Democracia (Limits and Possibilities of Transitional Justice: Impunity, Rights, and Democracy), held April 13 at the Catholic University of Rio Grande do Sul.
A little-known transitional justice mechanism, Brazil's Amnesty Commission has some interesting characteristics:
►It was formed to deal with a wide range of violations: Brazil suffered relatively few deaths (some 400) during the years of military dictatorship – defined as 1961-79 – but extensive political repression including torture and detention, exile, loss of jobs and blacklisting. It combines some truth-telling with a grant of reparations.
► Amnesty was a fundamental demand of civil society during the transition from the military to a civilian government. Amnesty here is used in the same sense as in Amnesty International – removing the civil and criminal disabilities of regime opponents. There’s a whole other fight in Brazil about the other meaning of amnesty – that which protects the military from prosecution for crimes committed during the dictatorship. More on that below.
In 2002, the government created the Commission, which is officially part of the Ministry of Justice. It’s been holding hearings around the country and providing reparations for the harms committed by the dictatorship.
The hearing I saw involved 6 cases. The 15 Commissioners, about half academics and half social activists, sat on the stage. The national anthem was sung. The first case involved a woman who had been forced into exile with her husband for their political activities. One of the Commissioners, acting as rapporteur, summarized her file, waxing eloquent on the harms she suffered and detailing the proof she had provided to the Commission. Apparently, the case had been denied once before for lack of adequate documentation. This time, the Commissioner recommended amnesty. The amnesty seeker then was given up to ten minutes to address the session, which she did, thanking everyone and recounting some of the political activism that preceded her family’s flight from Brazil. Finally, each of the Commissioners voted on whether to accept the rapporteur’s recommendation, and then everyone stood while the president of the Commission officially pronounced her an amnestiado politico, asked for pardon in name of the Brazilian state for forcing her into exile and changing her life’s plan, and awarded her a lump sum payment. She got a hug and a flower from a member of the Commission’s staff, and everyone applauded.
A similar procedure followed for the rest of the cases.
In one, a former student leader who had been stripped of his Brazilian citizenship because of his activism had it reinstated, along with a sum of money and an apology (The Commission can obtain benefits for victims from other state agencies, and has read its mandate to do so); he had flown in from the US especially for the ceremony.
The most famous case was that of former Brazilian President João Goulart’s grandson, who offered a political speech and received reparations for having been forced as a child to move from one country to another, in fear, after his grandfather was overthrown. While the Commissioner’s recognized the existence of inter-generational trauma, they were quick to note that just being the grandchild of a political exile or prisoner was not enough to qualify for amnesty.
The most interesting case, for me, was of a former state bank workers’ union leader who had been forced out of his job in the wake of a strike and then blacklisted.

Reflections on Atala v. Chile and Gas & Dubois v. France

Less than a month apart, two long-awaited judgments in cases involving gay parenting were handed down by the Inter-American Court of Human Rights and the European Court of Human Rights.
Atala v. Chile, delivered by the Inter-American Court (left) on February 24, concerned the decision of the Chilean Supreme Court to strip Karen Atala of custody of her three daughters because she had begun a relationship with another woman. It was the first sexual orientation discrimination case ever heard by the Inter-American Court, which found that Chile had violated Atala’s rights to privacy, family, and non-discrimination under the American Convention on Human Rights. The Chilean Supreme Court had relied on stereotypes and prejudice in depriving Atala of custody and had expressed concerns about eventual social discrimination against children and the possibility of confusion of gender roles.
Gas & Dubois v. France, delivered by the European Court on March 15, concerned a challenge to that country’s law restricting second parent adoption to married couples, which were necessarily opposite sex.
Valérie Gas and Nathalie Dubois were “PACSed” under the French system of relationship recognition for both same-sex and opposite-sex couples (pacte civil de solidarité), and Dubois had given birth to a daughter conceived in Belgium via assisted reproductive technology.
The European Court (right) has a long history of solid advances in the recognition of LGBT human rights. In Dudgeon v. United Kingdom in 1981, years ahead of the UN Human Rights Committee, it found Northern Ireland’s sodomy laws violated the right to privacy. In 1999, Salgeuiro da Silva Mouta v. Portugal, it held that sexual orientation was “undoubtedly” covered by the non-discrimination guarantee of the European Convention. In 2002, in Goodwin v. United Kingdom, it held that the failure to give legal recognition for a change of gender identity was also a violation of the right to privacy. In 2010, in Schalk & Kopf v. Austria, it ruled that the relationship of a same-sex couple constituted “family life,” just as it would for an opposite-sex couple.
In the case of Gas & Dubois, however, the European Court held that the denial of second-parent adoption was not a violation of either the right to be free from discrimination (Article 8 of the European Convention) or the right to private and family life (Article 14). French courts had denied the application for adoption because, despite Dubois’ express consent, Gas’s adoption of their child would have deprived Dubois of all her parental rights. Under French law, only the married (and therefore opposite-sex) spouse of a parent could adopt without terminating the biological parent’s rights. (Article 365 Code civil) This exception for step-parent adoption did not apply to same-sex or opposite-sex couples who were PACSed.
Although the Court reiterated that differences based on sexual orientation could only be justified by particularly serious reasons, it also noted that its jurisprudence did not require Council of Europe member states to open marriage to same-sex couples.

Jurisdiction, legitimacy & international investment

Following on the heels of Bolivia and Ecuador, Venezuela denounced ICSID, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, in late January. Venezuelan President Hugo Chávez characterized the withdrawal as a refusal to

'bow down to imperialism and its tentacles.'

Meanwhile, Venezuela issued a press release arguing that ICSID tribunals were biased in favor of investors, having decided against states in 232 out of 234 cases. (credit for above 2005 photo of Chávez)
Those statistics are flat wrong—ICSID tribunals have found for investors in less than half of cases.
But Venezuela’s argument is a reminder that investment tribunal decisions are scrutinized for signs of bias that:
► Undermine the legitimacy of those decisions; or, at least,
► Offer justification to states looking to withdraw from their international obligations.
Critics of the investment protection regime have argued vociferously that tribunals have expanded their jurisdiction by interpreting treaties in implausible ways.
My article, “State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration,” recently published in the Washington University Global Studies Law Review, examines one aspect of jurisdictional decisions to assess whether they respect the limits that states have placed on their consent to arbitrate disputes with investors.
The paper analyzes decisions on temporal jurisdiction in cases in which the alleged treaty breaches continued over an extended time period. Such continuing treaty breaches raise two distinct jurisdictional questions:
► Can a tribunal hear disputes that arose before the treaty entered into force or involving conduct that began before the treaty entered into force?
► Does the period of limitations bar claims for breaches that began outside the period of limitations but continued within the period?
In addressing those questions, investment tribunals have understandably looked to jurisprudence from other areas of international law. Most controversially, they have borrowed principles from cases in which the European Court of Human Rights and the Inter-American Court of Human Rights construed temporal jurisdiction broadly. That has caused some scholars to ask whether it is appropriate to use human rights decisions, which address violations of peremptory norms, to expand jurisdiction over states for less fundamental treaty breaches.
It turns out that human rights courts generally have not based their broad construction of temporal jurisdiction on the uniqueness of the rights concerned. In fact, these courts' reasoning on the issue often begins with early decisions that the International Court of Justice and the Permanent Court of International Justice issued in disputes between states—cases that did not involve peremptory norms. So, there is no apparent reason to reject wholesale human rights case law on this issue.
What is troubling, however, is that some investment tribunals have borrowed “precedent” carelessly.

Institutionalizing human rights in Latin America

Within the construct and details of international human rights courts – and the systems that create and enforce them – there is often a disconnect between the violations committed as a matter of law and the nature of the harms suffered by the victims of these violations, their families and their communities.
It is far too easy for any judicial entity to become caught up in the trappings of law, and this is particularly so in the human rights context, where a strict discussion of the law can withhold the unpleasant realities of human rights law violations. The ability of a human rights court to institutionalize the depth of harms experienced by victims, as well as the depth of legal harms committed by the perpetrators, is an essential element for ending the disconnect.
My article, “Institutionalizing Human Rights in Latin America: The Role of the Inter-American Court of Human Rights System,” forthcoming in the Temple International and Comparative Law Journal, focuses on the phenomenon of internalizing human rights norms within the Inter-American Court of Human Rights system – collectively comprised of the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights .
The process of internalization of human rights norms within the Inter-American Court of Human Rights system involves:
► Human rights activists,
► Persons who seek to remedy wrongs which they acknowledge as existing in society before them, and
► Juridical actors who use the powerful institutions of the Inter-American Court of Human Rights system in order to achieve the aim of highlighting and attempting to stop these practices.
The process of internalization within this system also involves:
► Bringing the harms suffered by victims, their families and their communities into the open,
► Acknowledging the wrongs done to them, along with the myriad impacts of these wrongs, and
► Preserving the dignity and core humanity of the victims of human rights violations.
My article discusses the role that the Commission has come to play as an advocate for those who have suffered human rights violations at the hands of a state or state actors. (credit for photo above of Commission members, from left, Felipe González of Chile, 1st Vice Chair José de Jesús Orozco Henríquez of Mexico, Tracy Robinson of Jamaica, Chair Dinah Shelton of the United States, Rose-Marie Belle Antoine of Trinidad and Tobago/St. Lucia, Rosa María Ortiz of Paraguay, and 2d Vice Chair Rodrigo Escobar Gil of Colombia)
Throughout the history of the Commission’s role in relation to the Court, the Commission has become increasingly active in advocating for those who allege substantial human rights violations, and that it ensures that these victims are seen by the Court as having essential humanity as well as legal standing and rights. My article argues that the Commission is the fundamental place for the institutionalization of the voices of human rights victims and those who support them.

'Nuff said

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

'Or, more precisely, let the citizens of Caricom know that they do not subscribe to such a judicial position as surfaced in Haiti which makes a mockery of institutionalised commitment to observance of international conventions governing crimes against humanity.'

-- Columnist Rickey Singh, in a Jamaica Observer op-ed criticizing a Haitian's judge's January 30 decision to dismiss as beyond a national statute of limitations claims against former ruler Jean Claude Duvalier -- as IntLawGrrls have posted here, here, here, and here, a ruler known as "Baby Doc" since he's the son of Haiti's prior dictator. Singh's op-ed draws a line between that decision and statements in which the current President of Haiti (flag above left) expressed a desire to "'think about the future'" rather than the past. As Singh notes, citing this Los Angeles Times editorial, the dismissal of claims conflicts with international abolition of limitations periods for crimes against humanity, contained in treaties to which Haiti and other member states of CARICOM (flag at right), the Caribbean Community and Common Market, belong. It's to be noted that not all such treaties can be at play: doesn't appear from this ratifications list that Haiti, let alone other Caribbean states, can be counted as members of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. And Haiti's not a member of the International Criminal Court. The obligation's not explicit in a treaty to which Haiti is a state party, the American Convention on Human Rights, either. Rather, Human Rights Watch has derived the obligation from "decisions of the Inter-American Court of Human Rights, by whose judgments Haiti is legally bound."

Guest Blogger: Lisa Reinsberg

We're very pleased to welcome Lisa Reinsberg (née Cowan, at left) as today's guest blogger.
Lisa is the founder and Executive Director of the Boston-based International Justice Resource Center (an organization on whose advisory board I am proud to sit). Lisa discusses the work and mission of the new Center, in the context of the needs of the human rights movement, in a 2-part series that begins with Part 1, her guest post below. (Part 2 is here.)
Lisa has diverse experience dealing with human rights cases, at the state, federal, and regional levels. Most recently, she was a legal fellow at the Inter-American Commission on Human Rights. Previously, she had carried out a research project, funded by the Fulbright Program, on the use of international human rights litigation by Latin American nongovernmental organizations.
Lisa earned a B.A. degree in political science and communications from the University of California-San Diego and a J.D. degree from Georgetown University Law Center.

Lisa dedicates her post to Blanca Jeanette Kawas Fernández (left), a Honduran environmental activist who was killed in 1995, in the context of attacks against environmentalists seeking to defend Honduras’ natural resources against corporate development. (image credit) Her survivors submitted to the Inter-American Commission on Human Rights a petition against the state of Honduras. Lisa writes:

In 2008, I was with Jeanette's family when they testified before the Inter-American Court, which in 2009 found Honduras responsible for violations of the rights to life, freedom of association, due process and judicial protection in connection with her death.

Today Kawas Fernández joins other IntLawGrrls foremothers in the list below our "visiting from..." map at right.
Heartfelt welcome to both Lisa and the IJRC!

Why every human rights advocate should know a little international law

(Thank you to IntLawGrrls, and in particular to Beth Van Schaack, for the opportunity to contribute this guest post, Part 1 of a 2-part series on effective human rights advocacy; Part 2 is here)

International law is a powerful tool for the protection of human rights. The law and the bodies that enforce it can provide real redress for victims of human rights abuses, build bridges between communities facing similar harms, bolster arguments for accountability, and mandate reforms. Though the regional and thematic treaty-based nature of human rights mechanisms may lead to some fragmentation or inconsistencies in the development of substantive rights, individuals and nongovernmental organizations’ thoughtful engagement with such mechanisms can yield profound results; for example:
► Vindication for the individual, as in this judgment from the European Court of Human Rights;
► A new beginning for the individual's community, as in this case from the Inter-American Court of Human Rights; and
► Landmark policy change for the individual's country, as in this matter before the Inter-American Commission on Human Rights.
In January of this year, I founded the International Justice Resource Center, a nongovernmental organization aimed at furthering such achievements -- in particular, helping human rights advocates know more about, and thus make better use of, international law.
IJRC is a global, user-oriented platform aimed at connecting grassroots human rights advocates with an underutilized, but powerful set of tools: international law and supranational human rights mechanisms. IJRC administers an online hub, tailored trainings and advocacy support, with the goal of democratizing understanding of and access to the range of international human rights norms and the bodies charged with their promotion and protection.
Based in Boston, Massachusetts, IJRC already has trained advocates working in various regions of the world, and responded to requests for advice from California to Kyrgyzstan. IJRC is also building an online platform where visitors can seek assistance, engage with one another, and access practical, user-friendly resources, such as instructional videos and manuals. No matter the issue they are facing or the country in which they work, advocates will be able to gain actionable knowledge of the standards and bodies relevant to their litigation, reporting, advocacy, or public education campaigns.
This past Wednesday, IJRC hosted Boston Human Rights Night, which brought together members of the academic, social justice, and legal communities to learn about one another’s work and explore the opportunities that international law presents for enhanced human rights promotion. The evening was also the culminating celebration of Campaign 501, which wraps up tomorrow.
At the Human Rights Night, an expert panel provided concrete examples from their work in the United States and abroad, allowing participants to take away a fuller understanding of the relevance of international law to social justice advocacy in the United States.
As panelists detailed, persons seeking improvement of – or accountability for – human rights conditions in the United States can:
► Prepare shadow reports for the expert bodies monitoring compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment;
► Engage with the Human Rights Council thematic special procedures’ factfinding and reporting activities or seek the body's intervention on specific human rights violations;
► Submit information for consideration by the U.N. Human Rights Council as part of its Universal Periodic Review process;
► Make specific allegations of human rights violations through the Human Rights Council complaints procedure; and
► Submit individual complaints to the Inter-American Commission on Human Rights, and furthermore, participate in that body’s thematic hearings and rapporteurs’ activities.
In addition, many international bodies are empowered to intervene and urge or order state action where the life or security of a person or the object of the litigation is at immediate risk of irreparable harm. These means of engagement do not include still another avenue: advocacy around and engagement with the work of the political organs of intergovernmental organizations.
Unfotunately, as I will discuss in Part 2, the post that will appear tomorrow, Human Rights Day 2011, there remains a gap between the availability and use of such international law resources.

In Cambodia, Case 002 Begins: Last Chance for Justice for Victims of Khmer Rouge

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

Trial is now under way in Case 002, which against three former senior leaders of the Khmer Rouge for atrocity crimes associated with the 1975-1979 reign of terror that left millions dead and shattered the social and economic structure of Cambodia. Opening arguments took place recently in Phnom Penh before the ECCC, the Extraordinary Chambers in the Courts of Cambodia (logo at left), about which IntLawGrrls have posted in the series available here.One of the innovations of this hybrid United Nations-national criminal court is the legal status of “civil parties,” afforded to victims who demonstrate that they suffered harm as a direct consequence of the crimes alleged against the Case 002 defendants. Pursuant to the ECCC's rules, if the defendants are convicted, these victims are eligible for collective and moral reparations.
In this case the number of victims who have joined is almost 4,000. The court faces significant challenges to delivering justice to this unprecedented number of civil parties.
On the eve of trial, the Court found one of the defendants, the 79-year-old former minister of social affairs, Ieng Thirith, mentally incompetent to stand trial. (prior IntLawGrrls post) The prosecutors have appealed the decision to dismiss her from the case, and in the meantime the trial continues against the remaining three defendants.
At the same time, the investigations of additional perpetrators are stalled, which, as posted, prompted the resignation of the international co-investigating judge last month.
With future trials in doubt, pressure is mounting for the ECCC to make the most of what may be its last trial.
A joint report recently released by the International Human Rights Law Clinic at the University of California, Berkeley, School of Law, Access to Justice Asia and the Center for Justice & Accountability is aimed to help achieve that goal.
Entitled Victims' Right to Remedy: Awarding Meaningful Reparations at the ECCC (2011), the report, on which we worked as Clinic interns, analyzes the Court’s treatment, to date, of reparations. It then provides recommendations to the court so that it may bring its reparations procedures in line with international practice. Key features are as follows:

Experts on Reparations
Notably, the report recommends that the court establish a body of experts to determine the nature and scope of permissible reparations and to identify a mechanism that will be responsible for the collection, management, and disbursement of funds to implement effective reparations in a transparent and accountable manner. Such a mechanism would serve thousands of civil parties in Cambodia. It also would serve as an example to the International Criminal Court: Article 75 of the Rome Statute of the ICC likewise allows victims to request reparations, though no awards have yet been issued.

Procedural Reparations: The Court Is Part of the Remedy
The report notes that for many victims, the structure of the trial and proceedings before the Court may be a form of remedy in itself. These “procedural reparations” play an important role in how the victims experience the proceedings and impact their views on the legitimacy of the final judgment.
The report outlines how the ECCC may ensure that civil parties play a vital role in the trial process. By so doing, the court may acknowledge the victims' suffering and help restore their dignity.
Several human rights tribunals — most notably the Inter-American Court of Human Rights — provide procedural reparation by including in their judgments detailed accounts of the victims’ suffering and the measures appropriate to address the harm. The report calls on the ECCC to follow the example in Blake v. Guatemala (1999), a reparations matter in which the Inter-American Court acknowledged and honored the pain of victims by offering a careful treatment of the facts, as well as legal reasoning that supported the requests for redress.

The Scope and Funding of Reparations
Civil parties requested access to free medical care, funding of educational programs, and the building of memorials and pagodas as reparations in Case 001. The ECCC rejected these requests on the basis that they were not sufficiently detailed. For example, the court held that the request for the construction of pagodas and memorials did not specify the “exact number of memorials sought and their nature, their envisaged location, or estimated costs.”
While the court recently altered its rules, the amendments still do not define what constitutes a sufficiently specific request for reparations.
On this question as well, the report recommends that the ECCC look to the example of the Inter-American Court; specifically, to its judgment in “Mapiripàn Massacre” v. Colombia (2005), in which the court adopted a broader, less burdensome standard for assessing victims' requests for reparations.
The ECCC is permitted only to award non-monetary relief to victims, in the form of “moral” and “collective” reparations. The nature and scope of what is meant by “moral” and “collective” remains unclear. In Case 001, the Court rejected reparations requests for access to medical care and education, noting that these requests were not enforceable because they involved monetary costs.
Since the court’s revised rules contemplate allowing donors to finance reparations awards, the existence of monetary costs should not pose a legal barrier to similar requests from victims in Case 002, now under way. Although there will be no final ruling on reparations until the conclusion of the trial, the Victims' Right to Remedy report urges the ECCC to begin now to create a viable system to design and implement any future awards.

Conclusion
Thirty-two years after the end of the Cambodian genocide, victims and their families have yet to receive justice. The Victims' Right to Remedy report offers analysis and recommendations that, if followed, will help the ECCC to live up to its potential to break new ground in international reparations law and practice. In doing so, the ECCC may provide a measure of closure for civil parties. The time to act is now.

Accountability for Serious Crimes in Brazil

Last month, Brazil's Senate agreed to set up a Truth Commission to investigate human rights violations during the country’s 1964-1985 military dictatorship. While this represents an important step in the struggle against impunity, as Intlawgrrl Naomi Roht-Arriaza has recently noted, Brazil continues to be the “sole holdout” in this part of the continent to leave its amnesty law untouched. Indeed, despite a finding by the Inter-American Commission on Human Rights in 2008 that Brazil’s 1979 amnesty law – which exonerates those who committed political crimes during the dictatorship – violated petitioners’ right to justice and truth, Brazil’s Supreme Court upheld a broad interpretation of that law in April of 2010 , finding that the actions of the military were political in nature and, therefore, protected by it.
Interestingly, the Inter-American Court on Human Rights issued a decision in November 2010 holding the amnesty law incompatible with Brazil’s human rights obligations under the American Convention on Human Rights and urging Brazil to “adopt all … measures [necessary] to revoke” it. One of the interesting questions raised by this series of events is whether the recently established Truth Commission will be sufficient to satisfy those who have pressed for accountability for the abuses committed during Brazil’s military dictatorship.
Although state compliance with the decisions of the Inter-American system’s Commission and Court is far from automatic, the history of this issue in neighboring countries suggests that decisions by these bodies have been a catalyst for reform at home, even if reform has taken a long time to materialize. For instance, although the Inter-American Commission on Human Rights recommended repeal of Argentina’s amnesty laws as early as 1992 it was not until 2005 that the Argentine Supreme Court nullified the 1987 amnesty law protecting those who committed crimes during the rule of that country’s military junta. Although the Supreme Court’s decision to annul the law came 13 years after the Commission first recommended repeal, the move eventually prompted the government to establish a serious human rights violations unit in its prosecutor’s office and to reopen hundreds of human rights cases.
A similar situation occurred in the case of Uruguay. The Inter-American Commission found Uruguay’s amnesty law incompatible with the American Convention in 1992. Yet, it was not until September of this year that the Uruguayan Congress voted to repeal that law. The vote follows a decision issued by the Inter-American Court in February of this year ordering Uruguay to ensure that its 1986 Amnesty Law – which gave the President final say over which cases of human rights violations could be investigated – would no longer impede investigation of serious human rights violations that occurred between 1973 and 1985 (i.e. before the country’s return to democratic rule). Notably, the recent vote followed several failed attempts to repeal the law. Indeed, the law was supported in popular consultations in 1989 and 2009. And despite a decision by the Uruguayan Supreme Court suggesting that the Amnesty Law was unconstitutional, an attempt to annul the effects of the Law was defeated in Congress in May 2011. Still, reform seems afoot in Uruguay, even though it took nearly 20 years since the Commission’s original decision. As recent media reports note (here and here), victims are coming forward in droves to seek justice for crimes committed during the country’s dictatorship. It may only be a matter of time before Brazil follows suit.

Courts resisting courts

(Delighted to welcome back alumna Alexandra Huneeus, who contributes this guest post, which describes the argument of her article "Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights," forthcoming in the Cornell International Law Journal)

When the Inter-American Court of Human Rights ruled against Chile in Almonacid v Chile (2006), then-President Michelle Bachelet (left) vowed to comply. (credit for 2009 photo) The ruling ordered Chile:
► To investigate the extrajudicial killing of Luis Almonacid in 1973, and
► More ambitiously, to prosecute all cases of Pinochet-era human rights violations that had been closed under the 1978 Amnesty Decree. Bachelet (prior posts), herself a victim of the Pinochet regime’s repressive policies, declared:

'My duty as President is to make sure Chile follows the rulings of the Inter-American Court of Human Rights.'

But she was powerless to implement the order.
The Court’s innovative remedies required judicial as well as executive action. Two days after Bachelet’s declaration, the President of the Chilean Supreme Court stated in a press conference that the Inter-American Court’s ruling was not binding. Bachelet’s term ended over a year ago, and the Chilean judiciary has yet to prosecute a case closed under the amnesty.
Almonacid, then, represents the defeat of an international court order at the hand of a national court.
The Inter-American Court, based in Costa Rica, was rebuffed by Chile’s weakest branch. What’s more, this is business as usual in the Americas. Scholars of international relations assume that autonomous national courts heighten compliance with international human rights regimes. But the Inter-American Court’s ongoing experiments with innovative equitable remedies provide a different perspective.
As detailed in my forthcoming article, my examination of the Court’s docket – based on original data – reveals two dynamics:
► First, in a majority of its contentious rulings the Inter-American Court demands that some sort of prosecutorial or judicial action be taken, such as an investigation, a hearing, or a trial.
► Second, the judges and prosecutors of Latin America rarely comply.
Latin American constitutions grant prosecutors autonomy from the executive, much like that of judges, to ensure accountability. But judges and prosecutors are far less likely to undertake the actions demanded by Inter-American Court rulings than are executives. While states implement the majority of orders that primarily require executive action, they implement only one in ten orders that invoke action by justice systems.
Some have argued that the reason for non-implementation of court orders is that criminal prosecution of state-sponsored crime is “costly” or “difficult” to undertake. (See, for example, Darren Hawkins and Wade Jacoby, here.) Others have reasoned that the government as a whole lacks “political will.” (See, for example, James L. Cavallaro and Stephanie Erin Brewer, here; Christina M. Cerna, here; and Morse H. Tan, here.)
Nor is the problem a lack of judicial independence.
My article draws on original data to reveal a different – and often primary – reason. Implementation of orders involves actors whose interests, ideologies, and institutional settings differ from those of the executive. These non-executive actors may be only dimly aware of the Inter-American Court. Prosecutorial and judicial politics must be viewed as separate, vital factors in explaining the performance of supranational rights regimes and in devising strategies to enhance their effectiveness.
Drawing on this insight, my article also argues that the Inter-American Court – and international human rights courts more generally – could increase compliance by more directly engaging national judges and prosecutors. In short, human rights courts should deliberately cultivate national justice systems as partners in compliance.
The argument holds relevance beyond the Inter-American system.
Many supranational institutions find themselves conferring with the foreign ministry when it is other state actors who hold the key to their success. Judicial actors, in particular, can foster or flout supranational rights regimes; think back, for example, to the back-and-forth between the International Court of Justice and the U.S. Supreme Court regarding application of the Vienna Convention on Consular Relations. (Prior IntLawGrrls posts available here.)
Scholars have called for the International Criminal Court to proactively use the threat of ICC jurisdiction to press states parties to prosecute crimes committed in their territory. Like the Inter-American Court, whether the ICC has success in so doing will depend not only on the will of the executive, its formal interlocutor, but on the will and capacity of diverse justice system actors
The analysis is also relevant to the European and African regional human rights systems. While neither system has a remedial regime as intricately developed as that of the Inter-American system, motivating national justice systems to act – and to learn of and care about regional rights law – is important for both systems’ future success.
To explain compliance patterns to human rights regimes, then, we need to pry open the black box of domestic justice systems and examine the motives and institutional settings of judges and prosecutors.
And to achieve greater implementation, the Inter-American Court must make itself matter to local state actors beyond the foreign ministry. As Duke Law Professor Laurence Helfer has written here,

'[C]ompliance with international law increases when international institutions – including tribunals – can penetrate the surface of the state to interact with government decision-makers.'

One tool that the Inter-American Court has at hand is its self-styled remedial regime which, coupled with the Court’s supervision of compliance to its rulings, establishes a link between the Court and particular state actors. This link provides a unique opportunity, so far underutilized, to deepen relationships with actors beyond the executive and to shape those actors into compliance partners.
My article is the first to be published in an ongoing study of the Inter-American Court’s remedial regime in comparative perspective. It aims to straddle disciplines, speaking to debates in both political science and law.

Inter-American ruling invites global rethink of state protection against domestic violence

(Delighted to welcome back alumna Caroline Bettinger-López, who contributes this guest post)

In a landmark decision, the Inter-American Commission on Human Rights has found the United States responsible for human rights violations suffered more than a decade ago by Jessica Lenahan (below right), our client here at the Human Rights Clinic at the University of Miami School of Law. (photo credit)
The August 17 decision in Jessica Lenahan (Gonzales) v. United States also recommended changes to domestic violence law and policy. It thus creates an opportunity for governments throughout the Americas – indeed, throughout the world – to conduct introspective re-evaluations of their own domestic violence laws and policies and to make necessary changes and improvements.
The Lenahan decision came as a cathartic end to a long legal battle that had begun with a tragedy.
In 1999, Jessica’s daughters – Rebecca, Katheryn, and Leslie – were abducted by her estranged husband, Simon Gonzales. Jessica repeatedly called police in Castle Rock, Colorado, for help. But they dismissed her calls, telling her to wait until the father brought the children home. At one point they even called her “ridiculous.”
In the same 10-hour period, the police responded to a fire-lane violation, looked for a lost dog, and took a 2-hour dinner break.
Then Simon Gonzales drove up to the police station and began shooting. Officers returned fire, killing him. Afterwards, they found the bodies of Jessica’s 3 girls, shot to death inside the truck. Local authorities’ failure fully to investigate the circumstances provoked questions – about the cause, time, and place of their deaths – that remain to this day.
Jessica filed a federal civil rights suit. In 2005, the U.S. Supreme Court (below left) struck a blow to Jessica’s cause, ruling in Castle Rock v. Gonzales that the Due Process Clause of the 14th Amendment to the U.S. Constitution did not require police to have enforced the restraining order Jessica had secured against her estranged husband. (photo credit)
Along with the decision in DeShaney v. Winnebago County (1989) – which effectively declared that the government typically has no duty to protect individuals from private acts of violence – the Supreme Court's decision in Gonzales denied important potential mechanisms for ensuring government accountability, and thus was detrimental to efforts to combat domestic violence.
Undeterred, Jessica then applied to the Inter-American Commission for relief. Representing her along with our clinic were the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.
Welcoming the Commission’s August 17 decision, Jessica stated:

‘I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters. Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.’

The Commission’s determination that the United States failed to discharge a duty to protect its nationals from domestic violence has far-reaching implications.
After the decision issued, Rashida Manjoo, the U.N. Special Rapporteur on violence against women, said:

‘State inaction towards cases of violence against women fosters an environment of impunity and promotes the repetition of violence.’

In a visit to the United States earlier this year, Manjoo (prior IntLawGrrls posts) had declared:

‘In my discussions with government officials, victims, survivors, and advocates, including Jessica Lenahan, I found a lack of substantive protective legislation for domestic violence victims in the United States, as well as inadequate implementation of certain laws, policies and programs.’

The Commission’s decision called into question the domestic violence laws and policies of the United States, including the Supreme Court decisions mentioned above, for it:
► Made clear that many of the current laws and policies are inadequate to protect the human rights of domestic violence victims;
► Recognized that the United States has an affirmative obligation to protect individuals from discriminatory violence; and
► Urged comprehensive reform, at the local, state, and federal levels, in U.S. law and policy respecting violence against women.
As Manjoo said in her own 2011 report,

‘Violence against women is the most pervasive human rights violation which continues to challenge every country in the world, and the US is no exception.’

Especially when read in conjunction with the 2009 decision of the Inter-American Court of Human Rights in the Cotton Fields case (IntLawGrrls' prior posts here and here), the Commission’s ruling in Lenahan also sets forth a framework for other nations to follow.
The decision makes clear that domestic violence is a human rights violation, and brings this point into the international spotlight. It is our hope that the decision impacts the way people perceive domestic violence. What happened to Jessica was an unfathomable tragedy. Moving forward, we hope that the decision will aid advocates to push for reforms that call for law enforcement accountability. We are hopeful that it represents an important step toward creating a world where governments and their agents will know that turning a blind eye and a deaf ear to domestic violence is not an option.

(My deep thanks to Luis Ramos, my student in the Human Rights Clinic at University of Miami School of Law, who coauthored this post with me)

ICJ Judge discusses his book

(Delighted to welcome back alumna Cecilia Marcela Bailliet, who contributes this guest post)

I recently had the pleasure of interviewing Judge Antônio A. Cançado Trindade (right) of the International Court of Justice at my home institution, the University of Oslo in Norway.
Cançado Trindade recently published a book titled International Law for Humankind: Towards a New Jus Gentium. It is based on the General Course on Public International Law that he delivered at the Hague Academy of International Law. This intriguing volume is an exploration of how the needs and aspirations of humankind can be fulfilled by law, rather than by the discretionary use of force, in the pursuit of the realization of justice.
Further, it draws attention to common responsibilities towards present and future generations. The judge states:

'International Law itself, the new jus gentium of our days, has at last liberated itself from the chains of statism -- that there is a primacy of the raison d’humanité over the raison d’État -- a humanization of International Law- in which human rights constitute the basic foundation of the legal order.'

He explores the notion of a universal juridical conscience as a source which promotes the evolution of public international law. He discusses the limitations of positivism and the misapplication of the rule of state consent in practice. Further, he takes issue with compartmentalized approaches to international state responsibility vs. international criminal responsibility of individuals. Cançado Trindade, who has been a Public International Law professor in Brazil since the 1970s, favors an expansive view of principles such as humanity, prevention, sustainable development, precaution, and non-refoulement.
Finally, he calls for recognition of a right to peace.
In our interview, Cançado Trindade openly discussed how his experience at the Inter-American Court of Human Rights, where he served as President from 1999 to 2003, shaped his thinking and influenced his reasoning in case law.
He also reflected upon various decisions at the ICJ, where he's been a judge since 2009. Cases discussed included Georgia v. Russian Federation, the Pulp Mills Case (Argentina v. Uruguay), and Germany v. Italy.
A video of his engaging, thought-provoking insights regarding the development of public international law is available here.