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« Penser comme un avocat » : Réflexions sur le raisonnement juridique

2013 Jean-Marc Lacourciere 2 100x150Voilà maintenant un mois que je suis à Banjul, en Gambie, à travailler pour l’Institute for Human Rights and Development in Africa. J’ai découvert une ville côtière paisible et agréable. J’ai la chance de travailler avec des gens de partout à travers l’Afrique, dans un contexte des plus chaleureux et accueillants.[1]

Il m’est arrivé à plusieurs reprises, durant mes études en droit, d’éprouver un certain scepticisme face aux méthodes de raisonnement juridique. En bref, je trouve qu’en essayant de schématiser les réalités sociales complexes, ces méthodes finissent parfois par les masquer. Il m’est arrivé, dans la dernière semaine, de ressentir de tels sentiments suite à deux événements différents. En racontant ceux-ci, j’espère vous donner une occasion de réfléchir aux limites du raisonnement juridique, en plus d’un aperçu du type de travail que je fais ici.

La forme qui l’emporte sur le fond

La mission principale de l’IHRDA est d’offrir des services juridiques pro bono aux victimes africaines de violations de droits de la personne. Nous intentons des litiges devant  les instances internationales, telles que la Commission africaine des droits de l’Homme et des peuples, ainsi que devant les tribunaux nationaux de pays africains.

Un des dossiers sur lesquels je travaille depuis mon arrivée concerne le massacre qui a eu lieu au village de Kilwa, en République Démocratique du Congo (RDC), en octobre 2004. Suite à une insurrection mineure, les Forces Armées de la République Démocratique du Congo (FARDC) ont été dépêchées à Kilwa. Elles s’y sont livrées à d’horrifiantes exactions : tirs d’obus sur des populations civiles, torture, viols, exécutions sommaires. La Mission de l’Organisation des Nations Unies au Congo a estimé à 73 personnes le nombre de civils tués par les FARDC. [2] Le massacre a, en outre, été commis avec la complicité d’une compagnie minière canadienne, Anvil Mining Limited. Cette dernière possédait une mine de cuivre à proximité de Kilwa, et l’insurrection avait forcé l’arrêt de ses opérations.[3] L’IHRDA a logé une plainte au nom des victimes contre la RDC devant la Commission africaine des droits de l’Homme et des peuples.

C’est en travaillant sur ce dossier que j’ai eu un premier moment d’épatement face à mon raisonnement juridique. Une collègue m’avait demandé de consulter des affidavits de victimes. Ils contenaient des récits horrifiants.  Les victimes y racontaient les circonstances de la mort ou de la torture de leurs proches. Cependant, en les lisant, une de mes premières réactions fut de m’attarder sur ce qui m’apparaissaient être des lacunes dans leur rédaction. Certains d’entre eux semblaient contenir du ouï-dire. D’autres contenaient des opinions sur des questions médicales exprimées par des personnes sans expertise dans le domaine.

Après quelques instants, j’ai eu un petit moment d’éveil, et été assez désolé par mes réactions. Comment se pouvait-il qu’en lisant des documents relatant des événements aussi tragiques, j’aie le réflexe de m’attarder à leur conformité aux règles de preuve ? Une partie de la réponse se trouve peut-être ici : en nous forçant à prouver un événement en obéissant à des règles strictes et complexes, le droit peut facilement nous faire perdre de vue ces événements. Les victimes de tragédies comme celles de Kilwa veulent que ce qui leur est arrivé soit reconnu par un tribunal. Cependant, pour ce faire, il ne suffit pas pour l’avocate d’y inviter la victime pour qu’elle y raconte son histoire. Elle doit s’attarder à la forme que prendra cette histoire lorsqu’elle sera racontée devant le tribunal. Je crois que ceci crée inévitablement un risque que l’attention à la forme prenne le dessus sur l’attention au contenu. C’est ce qui semble m’être arrivé pour un instant.

Pour ce qui est de la qualité des affidavits, quand j’ai posé la question à mon directeur, il m’a expliqué que la Commission africaine appliquait des règles de preuve plus souples que les tribunaux canadiens : elle n’évalue pas la probité des éléments individuellement, mais dans le contexte de l’ensemble de la preuve présentée. Comme quoi l’importance accordée à la forme varie d’un système juridique à l’autre.

Les limites de l’ « activisme judiciaire »

La semaine dernière, l’IHRDA a organisé un atelier de formation sur l’aide juridique en Gambie, à l’intention des forces policières gambiennes. Une des conférencières était une juge à la Cour d’appel de la Gambie. Elle a expliqué durant sa présentation qu’à plusieurs reprises, elle avait ordonné à l’agence gambienne d’aide juridique de représenter des accusés dans des affaires criminelles. Cette affirmation a étonné plusieurs des juristes dans la salle : les accusés en question n’étaient clairement pas admissibles à l’aide juridique en vertu du Legal Aid Act de la Gambie. Lorsque questionnée sur ce point, la juge a répondu avoir été motivée par de considérations de justice, les accusés étant complètement incapables de faire valoir leur cause par eux-mêmes. Elle a, par la suite, affirmé ce qui suit : « l’agence d’aide juridique aurait pu faire appel de mon ordre en Cour Suprême de la Gambie; tant que la Cour Suprême ne se sera pas prononcée contre les ordres de la sorte, je considère que j’ai l’autorité pour les émettre. »

J’ai passé un bon moment à réfléchir à ce dernier commentaire. La juge en question s’était arrogé un énorme pouvoir. En suivant son raisonnement, un tribunal a compétence pour rendre n’importe lequel ordre qui lui semble juste, sans égards au droit. Je suis d’habitude favorable à l’ « activisme judiciaire », surtout quand il est utilisé pour faire progresser le droit pour mieux tenir compte de réalités sociales. Cependant, il m’est aussi arrivé d’être frustré en lisant des décisions où, selon moi, une juge avait ignoré une règle clairement énoncée dans un texte de loi, afin de promouvoir sa vision de la politique sociale la plus souhaitable. Entre la juge qui applique le droit et celle qui décide en fonction de ce qui lui semble juste, je suppose que la première a l’avantage d’être prévisible.

Reconnaître les limites du raisonnement juridique

Je conclus sur cette notion de prévisibilité. Le peu de temps que j’ai passé à travailler dans le domaine du litige d’intérêt public me donne l’impression que nos combats doivent être menés sur plusieurs fronts. En tant qu’outil de progrès social, le litige a certainement ses limites, et doit être combiné à la participation dans les instances démocratiques, à la mobilisation populaire, à la dissémination d’information, etc. Reconnaître les limites du raisonnement juridique, et jusqu’où celui-ci pourra la mener dans une cause donnée, est donc une habilité importante pour l’avocate dans ce domaine. Elle lui permet de savoir quand il est favorable de saisir les tribunaux, et quand  il vaut mieux de défendre une cause par d’autres moyens.


[1] Consultez le site de l’IHRDA si l’organisme vous intéresse, il est très bien fait: http://www.ihrda.org/.

[3] Les victimes ont essayé, sans succès malheureusement, de faire autoriser un recours collectif contre Anvil devant les tribunaux québécois. Pour de l’information sur les procédures judiciaires au Québec, vous pouvez consulter le site du cabinet qui a agi pour les victimes, Trudel & Johnston : http://www.trudeljohnston.com/fr/recours_collectifs/nos_recours/droit/anvil_mining/

Revistionist History: St Paul des Métis

2013 AlexandraOlshefsky 100x150By Alexandra Olshefsky

My work with the Truth and Reconciliation Commission has thus far focused on archival research. One of the major themes that come out in this work is that of revisionist history: how stories are told and interpreted, and by whom. Forced assimilation was viewed as salvation for ‘les sauvages,’ one which settler communities felt should have been met with gratitude. This narrative has managed to survive over the past 150 years, with today’s racism being passed off as a political critique or social commentary.

When I tell people that I am working with the TRC, the most frequent response I encounter is along the lines of, “oh yes, it’s so tragic what happened, but they’ve been given so many opportunities since then.” This concept that indigenous communities should somehow be grateful for the ‘benevolence’ of settler peoples is still omnipresence in our national thinking. In the case of residential schools, it’s interesting to see how early attitudes surrounding the role of the institutions so clearly support our current rhetoric around indigenous issues.

I was recently asked to summarize a French text which outlined the history of St Paul des Métis colony in central Alberta by Historian and Oblate Eméric O. Drouin.

In 1895, Father Albert Lacombe was approached by the federal government to establish an agricultural colony for Métis in what is now east-central Alberta. The community would assure a Roman Catholic presence in a region that saw an increasing number of protestant settlers. Métis families were granted plots whose titles were retained by the government. At 69 years old, Lacombe assigned father Adéodat Thérien the task of organizing the colony. Yet with little training in farming, the community quickly shifted its focus to providing religious instruction to Métis children. In 1902, limited financial resources went towards the construction of a large residential school.1 One year later, a fire started by Métis students lead to its destruction, giving rise to the eventual termination of the colony in 1908.

The historian’s account of the fire required translation, not solely from a linguistic perspective.

The short account of the story is this: 16 year old Ducharme from lac Biche lead 14 students, all boys between the ages of 7 and 16, to burn down the school. Though successful in their plan, the fire’s sole casualty would be Ducharme’s sister, Marie.

In total, 4 were deemed too young to be prosecuted, and 10 were arrested. Of the 10, 4 more were acquitted by a Justice of the Peace in lac la Selle. The 6 others were brought to Fort Saskatchewan, Alberta to attend their trial. Justice McLeod acquitted the children. He relied heavily on the arguments of the defense, reasoning that the children had been provoked by poor treatment, furthering that no reform school for children existed west of Winnipeg.

You could characterize the story as one of struggle, as one of fight, determination and/or desperation by the Métis children against their abusers. This was the position of the defense. Or, you could adopt Drouin’s position, who argued that the accusations were “donc qu’excuses employees par les incendiaries pour attirer la sympathie, et pourtant, on les entretenait gratuiement à l’école depuis des années!”2 The historian furthers that an anonymous group pressured the judge to dismiss the case and that the verdict shocked the community. He quotes Thérien as stating: “Les enfants sont arrivés de la prison — le verdict du juge a supris tous le monde, même les parents. Évidemment ce judge McLeod est un butor.”3 Drouin contended that Cross was counseled by Lacombe not to pursue further action against the youth. He prayed that the case be dropped, as he had seen too many Métis sent to prison. In one final rhetoric flourish, he concludes the incident as follows: “Des simples enfants ont allumé la mèche qui a mis le feu au baril de poudre et fait sauter l’oeuvre qui devait être leur sault.”4

Drouin ostensibly asserts that these ungrateful children sabotaged their own salvation. And that narrative still so strongly inserts itself into our conversations around indigenous issues in Canada today.

***

For his part, Lacombe lamented the fire, which would ultimately bring about the devolution of the colony:

Nobody to-day can understand my trouble, my grief, my disappointment – I have only God for witness of my devoted desire to save this population. I will go down into the grave with this sorrow in my heart repeating ‘Bonum est quai humiliasti me.’ My poor Metis! […] I can only weep in secret.

Historian Heather Devine notes that there was “some debate over whether the colony was a “planned” failure or not. Some evidence suggests that the first priest and manager of the colony, Father Therien, was not only skeptical from the outset about the prospects for success, but was actually more committed to creating a community of French-Canadians in the St. Paul area.” After the fire, Therien “encouraged young Métis to take up homesteads outside of the colony, while quietly encouraging French-Canadian settlers to move in.” In 1908, managers of the colony informed the government that they wanted to terminate the land lease. In 1909, the lease, and subsequent colony was terminated, and “approximately two hundred and fifty French-Canadian claims were registered on the former Métis leases.”5

1 Heather Devine, The People Who Own Themselves: Aboriginal Ethnogenisis in a Canadian family, 1660-1900 (Calgary: University of Press, 2012) at 183-4.
2 Émeric O. Drouin, Joyau dans la plaine (Edmonton: Collège Saint-Jean, 1968) at 436.
3 Ibid at 241.
4 Ibid at 242.
5 Supra note 1.

Bedford v. Canada: The Labour Rights of Sex workers

2013 Alyssa Clutterbuck 100x150The Canadian HIV/AIDS Legal Network is an intervener in Bedford v. Canada.  The case is a constitutional challenge to Canada’s prostitution laws, specifically three laws in the Criminal Code: keeping a bawdy-house, living on the avails of prostitution, and communicating in public.  Oral arguments in the case took place last Thursday (June 13) at the Supreme Court.  Three plaintiffs, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, first filed the challenge in March 2007.  Last year, the Ontario Court of Appeal held that provisions in the Criminal Code have serious negative impacts on the constitutional rights of sex workers, namely a threat to their health and safety.

It is legal in Canada for consenting adults to legally exchange sex for money; however, most activities related to this exchange are criminalized.  For instance, the Criminal Code makes it illegal for sex workers, their clients, and third parties to communicate about the exchange of sex for money in a public place, or to “live on the avails” of prostitution.  Sex workers are prohibited from taking basic measures to screen their clients, work indoors in a safe, familiar place, or hire security personnel to protect them.

Catholic, Christian, and the anti-feminist group REAL Women formed a coalition opposing decriminalizing the impugned provisions and were granted intervener status to make arguments before the court.  The Evangelical Fellowship was also granted intervener status on its own to argue before the SCC.

On the other hand, the Feminist Coalition and 2 sex-worker led coalitions were denied intervener status by Justice Richard Wagner back in May: The POWER-Maggie’s-Stella Coalition and the International Sex Worker Coalition made up of sex worker associations from Australia, Sweden and New Zealand.  This was a huge blow to ensuring that the voices of sex workers are at the forefront of case proceedings.  As Catherine Healy, coordinator of the New Zealand Prostitutes’ Collective, stated, “Sex workers are the real experts on the sex industry and know first-hand the impact of the criminal law on our safety and human rights. It is extremely concerning to us that the Supreme Court of Canada proposes to examine this case without the input of a broad cross-section of those most affected.”

Also denied status was the Feminist Coalition, representing 23 women’s shelters, rape crisis centres, clinics and women’s rights organizations across Canada as well as internationally.  These groups offer frontline services to sex workers and also work to advance the rights of sex workers.  In addition, the Canadian Civil Liberties Association was denied intervener status.

A group calling itself the Women’s Coalition for the Abolishment of Prostitution (includes the Canadian Association of Elizabeth Fry Societies, the Native Women’s Association of Canada, the Canadian Association of Sexual Assault Centres, Le Regroupement Québécois des Centres d’Aide et de Lutte contre les Agressions à Caractère Sexuel, the Vancouver Rape Relief & Women’s Shelter, and L’Action Ontarienne contre la Violence faite aux Femmes) was granted intervener status, and advocates an “asymmetrical” approach to criminalization.  This approach, known as the “Swedish model”, is underpinned by the philosophical imperative that all sex work is inherently a manifestation of violence against women and, therefore, must be eradicated.  To reach the end of sex work, therefore, laws must continue to criminalize the purchase of sex and those who “promote” sex work, including sex workers themselves.

In 1999, Sweden passed the law Prohibiting the Purchase of Sexual Services (Sex Purchase Act), which punishes those who purchase sex with a fine or imprisonment for up to one year.  The law’s stated objective is to “end demand” for prostitution because sex workers are deemed to be “victims” and sex work is considered to cause serious harm to individuals and to society as a whole.

Evidence from the Swedish sex work industry since the law’s passage, however, reveals that the law perpetuates stigma, discrimination and violence against sex workers, concerns at the core of the constitutional challenge in Bedford.  Street sex workers have reported increased experiences of violence.  Regular clients have avoided them for fear of police harassment and arrest and are instead using the Internet and indoor venues.  This has led to greater competition for clients, driven prices for sex down, and forced sex workers to accept clients they would have otherwise refused, including those who insist on unsafe sex practices.  Sex workers who work indoors continue to be criminalized and are unable to work or live with others, including their partners, since it is illegal to share in any income derived from sex work.

Furthermore, sex workers continue to be denied access to social security benefits that are available to all other workers in legal labour activities.  As in Canada, the Swedish model wrests control from sex workers over their working conditions and institutionalizes an adversarial relationship between sex workers and law enforcement.

The Legal Network’s arguments are informed by principles of the rights to health and work, and embody the perspectives of a range of Canadian and international sex worker activists.  They are also supported by a broad consensus among international health and human rights experts that the criminalization of sex work—and, by extension, sex workers—threatens the health and human rights of sex workers.

It is clear that the legal framework for sex work in Canada must change.  But it must pivot towards seeing sex workers as just that –workers, engaged in labour, and in need of the rights and protections associated with belonging to the workforce.  Bedford is an important step toward providing sex workers their international and Charter rights to freedom of expression, freedom of association, security of the person, right to work, and the right to enjoy just and favourable conditions of work.

HIV/AIDS Legal Network hosts a conversation with Frank Mugisha

2013 Alyssa Clutterbuck 100x150Greetings from Toronto.

I am at the Canadian HIV/AIDS Legal Network.  The Legal Network’s 5th Annual Symposium took place last week.  The highlight of the Symposium was A Conversation with Frank Mugisha, a leading Ugandan activist and advocate for LGBT rights in sub-Saharan Africa.

A Conversation with Frank Mugisha

The Canadian  HIV/AIDS Legal Network was honoured to host Frank Mugisha, one of Uganda’s leading activists in the struggle for lesbian, gay, bisexual and transgender (LGBT) rights at the Toronto Refernece Library last Thursday, June 13.  Executive director of Sexual Minorities Uganda (SMUG) and founder of Icebreakers Uganda, Mugisha received the 2011 Robert F. Kennedy Human Rights Award and the Thorolf Rafto Memorial Prize for his activism in combating homophobia throughout sub-Saharan Africa.

Former Toronto mayor, Barbara Hall, introduced Mugisha, and reflected on the city’s early failure to mobilize a public response to the HIV/AIDS epidemic in the 1980’s.

Mugisha spoke about the 2009 introduction of Uganda’s anti-homosexuality bill (An Act to prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters), introduced by Member of Parliament, David Bahati.  The legislation proposes to impose the death penalty for serial acts of homosexuality, broaden the criminalization of same-sex relations and even includes provisions for Ugandans who engage in same-sex relations outside of Uganda, potentially extraditing individuals back to Uganda for sanctions.  The bill also imposes penalties on individuals, companies, media outlets, and non-governemental organizations that know of LGBT people or support LGBT rights. Under present law, same-sex relationships are illegal in Uganda, and punishable by incarceration up to 14 years.

This blog post was prepared for Legal Aid Ontario and can be read via their website:  http://blog.legalaid.on.ca/2013/06/17/keynote-event-roundup-a-conversation-with-frank-mugisha/

Mugisha noted that the roots of the proposed law can be traced back to a conference at which three prominent American evangelical Christian leaders asserted that homosexuality threatened the cohesion of African families.  Since being introduced, the bill has been denounced by the international community and numerous governments have threatened to rescind aid from Uganda.  Strong resistance from the international community and from local Ugandan activists has helped delay the bill in committee, though Bahati re-introduced the bill in February 2012.

Mugisha advocated a delicate approach in combating current myths that impede progress for LGBT rights in Uganda, including the view by many Ugandans that homosexuality is a Western import and not indigenous to African culture.  As one way to reduce stigma, Mugisha calls for more community discussions to help give a face to LGBT people.

Despite threats to his life and the 2011 murder of his mentor and colleague David Kato, Mugisha remains resolute when responding to concerns about his safety.  He feels that his recognition as an activist has helped protect him from arrest.  “My visibility and my speaking is my protection,” he said.  He did admit, however, that he must take caution when moving through Kampala and the rest of the country.

Mugisha has received offers of asylum in many countries, but insists on staying in Uganda. “I can never think about leaving Uganda. I have lived there all my life.”

Video of the event is available via the website of the Canadian HIV/AIDS Legal Network.

This blog posted is also available on Legal Aid Ontario‘s blog.

Business’ Role in Atrocity Prevention

2012 Laura Rhodes 100x150The voracious appetite for minerals, fossil fuels of all description, and capacity for energy production continues to grow. The activities associated with extracting, harnessing, processing and transporting all of these valued resources can compromise other goods in society, such as essential resources like agricultural capacity, fisheries, water and forests.

In this already tense context, some researchers have shown that existing divisions within global society can widen due to increasing perceptions of resource scarcity. If tensions escalate, civil conflicts and war may occur.

 

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“I tell you, if man continues to destroy the earth, these winds will return with even more force … not once … but many times … sooner or later. These winds will destroy us all.

We all breathe one only air, we all drink one only water, we all live on one only earth. We must all protect it. 

Home invasions began again. Woodcutters and gold diggers do not respect the reserve. We do not have the means to protect this vast forest which we are guardians for all of you.”

— Chief Raoni on the hydroelectric dam on the Xingu River in Brasil

 

The One Earth Future Foundation (OEF) seeks to disrupt such inevitabilities. “Peace through Governance” is the byline on staff members’ email signature. In the first week of the internship, the Director of Research and Development of this fairly young non-profit organization sat us down to review and give feedback on OEF’s iteratively developing “internal logic framework”, which includes the organization’s belief that humans engage in cooperative behaviour because cooperation provides specific benefits at the individual or group level. OEF relies on game theory, as well as such recent books as Winning the War on War by Joshua S Goldstein and The Better Angels of Our Nature: Why Violence Has Declined by Steven Pinker to support this somewhat optimistic belief.

As a result of this inspiring organizational logic perhaps, the office is filled with colleagues lit up about the work we are doing together. Its a wonderful positive work environment and an ideal learning environment for human rights interns.

Digging further into the logic, OEF believes that violent conflicts arise in the absence of governance systems and is thus interested in the promotion of “good governance”, which is not synonymous with democracy per se but does include governance that is perceived as legitimate (Keohane, Robert (2000) “Governance in a Partially Globalized World” (Presidential Addess, American Political Science Association, 2000) and governance which protects a “thin list” of human rights including security, subsistence and liberty (Buchanan, Allen and Keohane, Robert (2006) “The Legitimacy of Global Governance Institutions” Ethics and International Affairs 20:4 at 405).

OEF remains somewhat agnostic about the UN and does not pursue global governance on all matters, just those truly global matters which affect a significant proportion of the world’s inhabitants. Indeed, regional multi-level working groups convened on an ad hoc basis, such as the Contact Group on Piracy off the Coast of Somalia (CGPCS), appear to be a better fit to achieve good governance of regional matters. Notably, the participation of  business entities in CGPCS, such as the Oil Companies International Marine Forum (OCIMF), Bimco, Intercargo, Intertanko and the International Chamber of Shipping, working alongside states on five CGPCS working groups, has been “indispensable” (Carl P Salicath, Senior Advisor, Norwegian Ministry of Foreign Affairs), allowing actors with well-defined interests in countering piracy to participate in largely de-politicized and pragmatic discussions (Danielle A Zach, D Conor Seyle and Jens Vestergaard Madsen, “Burden-sharing Multi-level Governance: The Case of the Contact Group on Piracy off the Coast of Somalia”). CGPCS appears to have achieved results, although the attribution is somewhat uncertain, but as of 2012, Somali pirate attacks dropped by almost 80 percent from a year earlier, with 851 seafarers fired upon in 2012, compared with 3,863 in 2011.

Overall, the role of business in achieving peace through governance is prominent at OEF. The founder of the organization is a very successful business entrepreneur who seeks to invest in a better world. He believes that his wealth is a blessing and that he, and other successful entrepreneurs, have a responsibility to do something positive with that wealth. It is easy to see how an organizational ethic placing business in a stewardship role could emerge at OEF.

It’s a bit of a paradigm shift for me, as the emphasis in most traditional human rights classes and conversations falls on the responsibility of states. We did spend one class on the responsibility of corporations in the context of human rights in Professor Mégret’s class last term, yet it was the last class and somewhat preempted by discussion of the upcoming exam. In addition, the disappointing new limitation on the availability of human rights claims under the Alien Tort Claims Act in the United States in the US Supreme Court’s recent judgment in Kiobel v Royal Dutch Petroleum appears to point away from corporate liability for human rights abuses.

Even so, my first task has been to comprehensively report on the potential for both criminal and civil corporate liability for either complicity or participation in the gravest of human rights abuses, including war crimes, genocide, ethnic cleansing and crimes against humanity. At the outset, this should be an easier link to draw, as these crimes are largely jus cogens and moral consensus is strong around their prevention. Further, my team in the Responsibility to Protect (RtoP) program is wrapping up its research phase, and moving on to implementation, which will likely involve making the “business case for atrocity prevention” (as strange a concept as that might appear to be) to business leaders, particularly in those resources industries which operate in so-called “conflict prone zones”.

Overall, I am using my background in sustainable development to bring what I see as the reality of climate change and declining resources to every conversation, and also relying on the organization’s optimism about human cooperation to buoy my perspective and maintain an open mind about what business leaders could possibly contribute to good governance and prevention of atrocities in areas where the race for resources is heating up and society is fractured by pre-existing (and manipulated) tensions over group difference. I understand that business is often well-placed with information and capabilities on the ground to “protect, respect and remedy” human rights (Ruggie Report on Business and Human Rights, 2010) and from my experience of working in Rwanda in 2010, I have also seen how people can be more willing to see themselves in the context of “we’re all Rwandans” if good work and career opportunities seem to be available to all through increasing national prosperity, driven by business investment.

Overall, Colorado is welcoming and warm. Luckily, I have remained out of the path of tornados and forest fires so far. Looking forward to the rest of the summer and future blog reflections. To all my colleagues across the globe, enjoy this learning opportunity and see you in the fall.

The Provision of Legal Assistance in Kenya

2013 Tina Hlimi 100x150I arrived in Kianyaga, Kenya almost a month ago. The experience to date has been incredible. I am working with a great team of McGill interns and Kenyan paralegals in the rural town of Kianyaga located on the foothills of Mt. Kenya.

The encompassing region of Kirinyaga (in Kikuyu “the bright big hill” referring to Mt. Kenya) is especially mountainous with long, winding, red dirt roads. The striking red clay soils are indicative of iron oxide and porous soils often found in temperate and tropical regions. Another geological feature of the region is the mounds of dispersed volcanic rock, a reminder of the once-active stratovolcano, Mt. Kenya. The flora of this elevated region is lush and tropical, as one would expect of an equatorial environment. Banana trees are omnipresent, along with papaya, avocado, sugarcane and passion fruit.

In addition to the native vegetation, there is also an abundance of non-native species including Australian eucalyptus trees, which are chiefly used for building material as they repel parasitic termites and grow at exceptional rates. The surrounding landscape is littered with tea and coffee plantations. Many of the farms (“shamba” in Swahili), which I have visited for land disputes claims, cultivate large plots of coffee. Despite the abundance of coffee beans, Kirinyaga is a tea-drinking district (recipe: ½ milk, ½ water and black tea leaves) as much of the coffee is exported.

Local farmers constitute 80% of Kianyaga’s local economy coinciding with an elevated number of land conflicts. The city centre is relatively small and consists of numerous small shops selling everyday items, such as: soap, egg, bread, baked goods, newspapers, brooms and so forth. The city centre can be traversed on foot within a half hour.

On the periphery there is a bustling market, where one can find a wide assortment of beans (80 varieties of which 6 are mainly consumed: rosecoco, mwezimwoja, mwitemania, surambaya, githeri etc.), rice (there are numerous rice paddies in the vicinity), pineapples, mangoes, avocados, onions and tomatoes, passion fruits, carrots, zucchinis, pumpkins, squash, white maize, and so forth. My daily meals often consist of cooked “githeri” beans (mixture of maize and beans) and fruit salads.

Nearly all of the land conflict respondents are farmers residing in agrarian areas, kilometers away. In order to reach them, I frequently take a motorbike, or a “piki-piki”, as they are called in Swahili.  Piki-pikis are nerve wracking, as the dirt roads are unlevelled and occasionally slippery following heavy downpours. These bikes often fit 2-3 people, in addition to the driver. When travelling longer distances (e.g. for land registration in nearby towns or Nairobi) I use a “mutatu”, a large van with 16 seats. The mutatu environment is unparalleled. The van is always packed with commuters and the drivers are incessantly playing Jamaican reggae, while peddlers loop the vehicle selling all sorts of knick-knacks.

Kianyaga’s inhabitants are chiefly Kikuyu, the predominant ethnicity of 42 ethnic groups in the country. The Kikuyu of Mt. Kenya speak Kikuyu, Swahili and English. When conducting land conflict interviews and gathering narratives (e.g. land grabbing, theft, border disputes, land title claims, etc.) close to 80% of the meetings transpire in Kikuyu and are subsequently translated into English for me. This is regrettably one of the barriers to conducting legal research and providing legal aid in a foreign country; I often only hear a brief synopsis of the dialogue between the respondent and the paralegal.

Another challenge is the corruption of the judiciary at the local level. Many of the respondents’ files, although filed correctly, are simply irresolvable as judges, block leaders and local chiefs are bribed by the opposing party. In addition to corruption, the administrative workers at the local court are sometimes reluctant to assist us with respondents’ files. We have had respondents seeking documents and assistance at the court, only to be turned away for trivial reasons. When they return with a paralegal or when I am present, the employees are more willing to assist with file preparation and to provide guidance.

Corruption combined with financial restraints prevents respondents from seeking advocates. This fact alone makes it simple for perpetrators to grab land, coax respondents into entering shady, ambiguous or fraudulent contracts or simply bribe the local chief or block leaders, who are responsible for mediation.

Hence, providing marginalized individuals who are often unaware of their legal rights with an alternative economical route (e.g. legal aid) to the judiciary makes a difference or at least offers individuals hope when all hope may have otherwise dissipated.

To facilitate the project, I work with a Nairobi advocate who visits the office each week and provides legal aid to 6-10 respondents. Each subsequent week, the respondents’ cases are incrementally resolved through: court filings, land cautions, appeals and so forth. I recognize that many of the cases which I am currently working on will not be resolved, or be close to resolution by the time I leave. I nevertheless hope to make a difference with my current files and in the lives of the respondents that I am presently working with.

Still Far to Go: World Refugee Day in India

2013-Malischewski-100x100By Charlotte-Anne Malischewski

Today marks World Refugee Day. The number of refugees worldwide is at an 18-year high and the UN high commissioner for refugees Antonio Guterres told reporters that, around the world, a person is forced to flee every 4.1 seconds.

While much of the world’s attention is placed on the crisis in Syria and countries which continue to produce huge numbers of refugees such as Pakistan and Afghanistan, there is much to be concerned about when it comes to the plight of refugees in South Asia.

No country in the region is party to the United Nations Convention Relating to the Status of Refugees, 1951 or to the Protocol Relating to the Status of Refugees, 1967.

In India, the central argument against ratifying the 1951 Convention is that it is too much a representation of European ways of addressing European problems to be effectively implemented in India.  Presently, India is not bound by the provisions of these key tools of international refugee law. That said, article 51 (c) of the Indian Constitution provides that India “shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another”.   So, the principles of refugee law are often adopted in India, but the state is not bound by them in the way that a signatory country would be.

To make matters more ambiguous, India has no domestic refugee policy. Because there is no legal framework for asylum, the UNHCR conducts refugee status determination for asylum-seekers from non-neighbouring countries and Myanmar.

In an address in honour of World Refugee Day, Dr. Shashi Tharoor (former Minister of State for External Affairs and now a  Member of Parliament who spend much of his career working for the UNHCR) said:

“It troubles me that a country with our proud traditions and our noble practices remains neither legally committed nor obliged to do anything for refugees, even if we behave humanely in practice. I think it is high time the Government reviewed its long-standing reluctance to sign up legally to what it is already doing morally. The Convention and the Protocol involve no obligations that we have not undertaken voluntarily.”

To say that the convention is in keeping with existing Indian intentions towards refugees, to draw parallel’s with India’s ancient historical of acceptance of migrants, or even to demonstrate that the current situation is inconsistent with constitutional principle is useful in trying to convince the powers that be to sign the convention, but to say that India is already doing morally what it would be required to do legally if it signed the convention is somewhat misleading. It masks the fact that India is not only resisting signing the 1951 convention, it is resisting implementing an effective legal system of refugee protection – period.

It’s been a year since the government committed to new long term visa that all refugees are suppose to be able to apply for, but those on the ground are not seeing the benefits of these new visas. An article in The Hindu today tells the story of refugees from Myanmar still waiting to hear from the Foreigner Regional Registration Office about these long-term visas. In it, a UNHCR official is quoted as saying:

“The Government of India has committed to allow all UNHCR-registered refugees in India to apply for long-term visas, which will also allow them to work in the formal sector and enrol in any academic institution. The process is slow and it is not clear how long it will take for all refugees registered with UNHCR to obtain them. So far, according to our information, refugees from Myanmar and some Somali refugees have obtained them. Refugees from other nationalities have also applied but have not received them yet.”

If India is to live up to the “heritage of diversity” Dr. Shashi Tharoor celebrates, it has a long way to go.  Signing the 1951 refugee convention will likely not be enough, because as a product of post-War Europe it is ill-suited for the South Asian context, but it could be a start.  A regional mechanisms is another option. A mixture of the two might be ideal.  Ultimatley, though –  while the means are many, the need is clear.

India needs to to implement a legal framework for refugee protection that is in keeping with international legal norms and responsive to South Asia realities and then, it needs ensure that these laws become practice.

As an advocate of the Supreme Court of Hinda and  human rights activist, Rajeev Dhavan, said five years ago on this day:

“India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the region’s needs and the capacity to absorb refugees under conditions of global equity.”

For those forced to flee and  now stuck in a legal lacuna, India’s history of hospitality is meaningless.  They need legislated rights protection mechanisms and active efforts to ensure social, political, and economic inclusion in the present.

“And children live there?” Abuse in a Guatemalan Psychiatric Hospital

2013 Emily Hazlett 100x150By Emily Hazlett

What to do with Guatemalan children and teens who are in need of emergency psychiatric services? This was the question that was put to me on my second day of work at Disability Rights International, in Mexico City.

My first day was spent reading about what currently happens to them. Children and teens who suffer some kind of acute mental health crisis are often placed in Federico Mora Psychiatric Hospital for adults in Guatemala City. Patients there can be tied up all day, put into isolation, receive little to no medical treatment, have no clean water and not enough food, and are abused physically and sexually by the guards. The women remain permanently locked up in a small ward to protect them from being assaulted. The hospital, which is already located in the most dangerous neighborhood in the city, is also next to the biggest jail in Guatemala. As such a number of criminals are also housed there, meaning that there are always armed guards on the premises. Staff who witness abuse are afraid of denouncing it, since a number of the perpetrators, who essentially run the hospital, have ties to Central American gangs.

And so Disability Rights International has been petitioning the Interamerican Commission on Human Rights to protect the patients in the hospital (Roger Bill chronicled the beginnings of that petition last summer on this very blog). The Interamerican Commission has now asked us for alternatives to hospitalization for children with acute psychiatric problems, a request that has thrown me into the very new world of urgent care child psychiatry.  I have been drafting a request that the children remain, as much as possible, within their families (a practice that is increasingly recognized as both cheaper and more effective in Canada and the USA).

www.disabilityrightsintl.org

While the subject matter of my work is often difficult, the atmosphere in DRI’s small office remains remarkably positive. My colleagues are always happy to recommend weekend trips, pretend to understand my Spanish, and offer tips for tackling the insanity that is a metro system serving 22-million people at rush hour.

I feel extremely fortunate to be working with DRI on this project to protect the over 300 people with disabilities arbitrarily and dangerously detained at Federico Mora Hospital in Guatemala City. At the same time, I’ve just learned that DRI will soon be acting as amicus curiae at the Mexican Supreme Court, defending a young man with Asperger’s Syndrome who has been placed under tutorship. The case will hopefully set a new precedent in Mexico that will help people with disabilities maintain their legal capacity as a rule rather than an exception. In short, it’s an exciting time to be working here, as there are a number of really important projects going on in the office, and lots of work to be done.

 

Respect for sexual diversity in Central/Latin America

2013 Claire Gunner 100x150 Claire Gunner

Last Tuesday, I went to a panel sponsored by the Inter-American Institute of Human Rights and the Institut français. Sexual Diversity in Central America: Political, Social, and Juridical Integration was hosted by the University of Costa Rica, just around the corner from the Inter-American Court of Human Rights.

One of the speakers is a lawyer for the Court, and he presented on the impact of one of the Court’s recent, well-known, and hotly debated decisions, Atala Riffo and Daughters v Chile (Judgment of February 24, 2012).

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Karen Atala Riffo, the petitioner (and herself a Chilean judge), brought a complaint to the Inter-American Commission of Human Rights after the Supreme Court of Chile awarded her ex-husband sole custody of their children on the basis that Ms. Atala Riffo was in a relationship with a woman. The Supreme Court of Chile reasoned that Ms. Atala Riffo’s relationship would risk damaging her children’s development.The Inter-American Court ruled in favor of Ms. Atala Riffo, finding that she had been discriminated against in the custody decision on the basis of her sexual orientation, which is incompatible with the American Convention on Human Rights (article 1(1), regarding “the obligation of the States Parties to respect and guarantee the full and free exercise of the rights and freedoms acknowledged therein ‘without any discrimination'”, at para 78 of the Court’s decision).

Although Chile has complied with the Court’s ruling, its implications for Central American states are unclear. The Court’s decision is a positive development in international human rights jurisprudence, especially given that international human rights organisms are frequently much more conservative than one might anticipate (see, for example, almost any application of the “margin of appreciation” by the European Court of Human Rights). Atala Riffo doesn’t readily serve arguments in favor of obliging members states to, for example, legalize same-sex marriage.

The first person to speak at the event, Magistrada Eva Camacho Arias, is a member of Colegio de abogados y abogadas de Costa Rica’s Comisión de diversidad sexual. The Comisión was established following the approval of a national policy of respect for sexual diversity in 2011. At one point there were only two constituents because public speculation as to other members’ sexual orientation led to the withdrawal of their participation – a disappointing (to put it mildly) sign for a working group focused on inclusiveness. Now, the Comisión has five members. Despite the slow progress, Magistrada Camacho Arias wants Costa Rica to be the first Latin American country to implement a policy of respect for sexual diversity so that Atala Riffo‘s message of non-discrimination can be felt throughout the Organization of American States.

Trade Related Aspects of Intellectual Property Rights (TRIPS): At the Intersection of Health and Human Rights

2013 Lipi Mishra 100x150The past few weeks have been busy for delegations from around the world preparing to attend the World Trade Organization (WTO) TRIPS Council Meeting (hosted in Geneva from June 11 to 12). It has been particularly frantic for member countries categorized as least developed countries (LDCs), a category to which Uganda belongs.

As a cursory background on the issue, the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement essentially stipulates that countries must implement certain standards of patent protection, copyrights, trademarks, and other forms of intellectual property. Thus, the agreement seeks to protect and enforce intellectual property rights on a global level. However, there is a provision for flexibilities in the TRIPS agreement for member countries that are LDCs. The flexibilities provide these countries with a renewable exemption from TRIPS obligations. With such exemptions, LDCs are given policy space to overcome capacity constraints in the hopes that they will be able to develop a viable technological and legal base and then start enforcing TRIPS when they have the resources to do so.

Where the problematic issue arises is that the period of the last extension granted to LDCs is set to expire on July 1st, 2013 and certain WTO members have expressed resistance at granting a further extension of anything longer than 5 to 7 years for LDCs. LDCs, with the support of other countries, have opposed this position and are lobbying for more time so that they can overcome the constraints that prevent them from creating a viable technological base and enforcing IP laws.

CEHURD’s role in this issue has been formative in spearheading a movement to lobby the appropriate actors on behalf of civil society to grant LDCs an extension. Last week, CEHURD celebrated a few successes in its fight for an extension on the TRIPS deadline. First, CEHURD along with the Southern and Eastern African Trade Information and Negotiations Institute (SEATINI) successfully petitioned the East African Legislative Assembly (EALA) to pass a resolution urging WTO member countries to grant a TRIPS extension for LDCs. Then, before the TRIPS Council meeting even convened, the WTO announced that an 8 year extension for LDCs had been granted; a marginal victory for LDCs, but a victory nonetheless.

Press Conference held at the CEHURD Office on the LDC Request for an extension on TRIPS (Trade Related Aspects of Intellectual Property) Obligations.

Press Conference held at the CEHURD Office on the LDC Request for an extension on TRIPS (Trade Related Aspects of Intellectual Property) Obligations.

So, what are the implications of these issues on human rights? Well, intellectual property law, in general, is at an interesting juncture with respect to the right to health. Access to medicine issues are particularly pronounced in developing countries, like Uganda, where there is a high disease burden but limited financial resources to address that burden.

Many LDCs, including Uganda, where HIV and TB are rampant, rely on the importation of generic medicines to meet the health needs of their population. Intellectual property laws can end up acting as a regulator and restrict the importation of generic medicines into these countries, which is why Uganda and its fellow LDCs rely on TRIPS flexibilities. LDCs, the poorest countries in the world, are protected from opening their weak economies to monopoly protections for IP-based multinational corporations. Without those flexibilities, strict IP laws can inhibit the wide dissemination of generic medicines to populations that need them the most. Even more broadly, such IP laws may render many essential public goods including educational resources and green technologies unaffordable.

This whirlwind of issues has elucidated to me just how complex human rights issues can get, especially when issues of trade, intellectual property, and health are factored in. On the one hand, there are apparent human rights issues that need to be addressed if an individual cannot access potentially lifesaving antiretroviral therapies to manage their HIV as a result of overly stringent IP laws. On the other hand, the right of pharmaceutical companies to enforce their patents in order to thrive is also a concern that needs to be acknowledged.  Policy and advocacy work tends to recognize the range of these issues and address them by concurrently lobbying the government for policy reform and also eliciting support from other facets of civil society.

Despite the fact that the extension on TRIPS flexibilities has been granted, the battle is hardly over. Rather, the real heavy lifting is about to start revving up. Uganda, along with its LDC counterparts, must continue to create the necessary legal infrastructure around intellectual property law and accelerate the process of overcoming capacity constraints by establishing a sound and viable technological base.

There is never a dull day at CEHURD’s human rights advocacy department. With the conclusion of the TRIPS Council meeting, the CEHURD team is already wading through the field for its next hot-button issue.

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