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HIV and Sex – Not a Risky Business

By Isabelle Rémillard

IMG_3251[1]Four girls in downtown Toronto, a little bit of gin, and a conversation about one-night stands. It didn’t take too much time before we argued the proper etiquette to adopt before engaging in some gymnastics under the sheets with a total stranger. Each one of us had a different idea of what was appropriate to ask, what we should expect from our partner… and how these opinions would be completely different if the other person was actually HIV-positive. One of us said, quite categorically, that she would never sleep with someone who was HIV-positive, even if he’d wear a condom. ‘’You do know that there’s no risk of transmission when a condom is used, right?’’, ‘’I don’t care’’.

This remark made me cringe. As an intern at the Canadian HIV/AIDS Legal Network, I learned all about the myths surrounding HIV transmission and how these misconceptions negatively affect the lives of people living with HIV. Yet, I couldn’t blame her for saying that; I’m not sure my opinion three months ago would have been much more different from hers. It is scary to realize that we were four educated girls, but we had such a poor understanding of how HIV may be transmitted. And I wonder whether the law is not in fact perpetuating (if not strengthening) this misinformation and therefore this stigma and discrimination around HIV.

Indeed, the Supreme Court of Canada’s rulings on HIV non-disclosure fail to reflect actual scientific knowledge on the matter. Under Canadian law, HIV-positive individuals may be charged and convicted of aggravated sexual assault if they do not disclose their status to their sexual partner unless they use a condom and have a low viral load. This is in contradiction with scientific and medical evidence which establishes that the possibility of transmission is negligible, or even nil, when only one of these requirements is satisfied. With such a legal interpretation, people living with HIV end up being labeled as criminals even when their actions pose no realistic possibility of transmission.

So I wonder what makes us think there’s a risk. Science doesn’t seem to have much influence on popular beliefs. Every time I mention the current state of HIV-related science, people tell me that it doesn’t matter, they wouldn’t want to take the chance – ‘’it’s too risky’’, they say. On the other hand, they do believe that our highest court is right in criminalizing such sexual behaviours. So are we keener to believe the law over science?

And what exactly is our responsibility as individuals to protect ourselves? In a generation where casual sex is more frequent, is it ever realistic to expect our sexual partner(s) to reveal such an intimate part of their life? Do we have to expose our whole life story every time we take off our clothes, especially to individuals we may perhaps never see again? Those in favour of non-disclosure prosecutions argue that individuals ought to be fully informed before taking a decision on whether to accept or refuse sex. But it’s hard for me to see how this rationale for HIV criminalization could stand. Considering that the scientific consensus is that the risk of transmission is negligible or nil, I don’t think a ‘’right to know’’ is defensible. How far do we want to go about the vow of telling ‘’the truth, the whole truth and nothing but the truth’’? Such a vow may exist in courts and Hollywood movies, but it has no place in our bedrooms.

To be clear, I am not arguing that people should change their mind about having sex with HIV-positive partners on the basis that their fears are unfounded – absolutely not! No one should have to justify why they would or wouldn’t want to sleep with someone. But what I’m asking is: should it really be a crime not to disclose your status? Given that there is no realistic possibility of transmission, the answer seems obvious to me. Where there is no intention of transmission and where the HIV-positive partner had a low viral load or a condom was used, this sexual behaviour should not constitute a crime. As a society, we should give more weight to scientific facts in the establishment of our policies and laws. The four girls living in downtown Toronto, as most Canadians, respect and trust the authority of our judicial institutions and their rulings can have significant impacts. Therefore, our courts have a responsibility to ensure we do not discriminate against some groups in our society, including people living with HIV.

Private Maritime Security in West Africa

Kyle Best

Source: http://gcaptain.com/shipping-industry-iso-standard-for-private-security/

Source: http://gcaptain.com/shipping-industry-iso-standard-for-private-security/

Private Maritime Security Companies (PMSCs) have proven to be an effective means by which ship owners can deter pirate attacks. In 2013, between $767,144,000 and $876,736,000 was spent on armed guards aboard ships in East Africa alone.[1] These significant sums of money were not expended frivolously, and because PMSCs have achieved results, many shipping companies are eager to make use of them in regions of emerging piracy. One of these regions is West Africa. However, unlike East Africa, West African laws are highly restrictive as to the use of PMSCs in their territorial waters. In some cases, these laws create a situation where ship owners must, in their efforts to bolster security, turn to either (1) security personnel sanctioned by the state or (2) national forces such as the navy. This approach to maritime security has been fraught with difficulties, two of which are detailed below.

Jurisdictional issues:

The United Nations Convention on the Law of the Sea (UNCLOS) provides that the sovereignty of a state extends to the territorial sea, which is measured 12 nautical miles from the baseline. Thus, as long as a ship is within the territorial sea of a West African state, that state may prohibit private security aboard the ship without contravening international law. However, there have been reports of these laws being enforced beyond the territorial sea in Nigeria. A recent statement made by the Baltic and International Maritime Council (BIMCO) warned all of its members operating vessels within Nigeria’s Exclusive Economic Zone (EEZ) that “[t]he Navy has seemingly begun enforcing its alleged authority to prevent the employment of armed guards”. The authority of the Nigerian Navy is described as “alleged” because international custom does not allow a state to apply its national law throughout the EEZ. As per UNCLOS, the EEZ extends 200 nautical miles from the baseline, and gives a state exclusive jurisdiction over the exploitation of the resources therein. Thus, while Nigeria has exclusive rights over fishing, oil, and gas in its EEZ, enforcement of national laws beyond territorial waters is contrary to international law. This issue brings to light the overall uncertainty faced by the maritime industry: not only do seafarers and ship owners face the risk of unpredictable pirate attacks at sea, but they are further subject to the arbitrary exercise of jurisdiction by littoral states.

“Blue on blue” incidents:

One solution to the problem of jurisdiction would be to rely exclusively on security either sanctioned by or provided for by the littoral state. However, even this approach has proven to be problematic, and has resulted in a number of “blue on blue”, or friendly fire, incidents. One notable incident occurred in 2013, where members of the Nigerian police opened fire on a small ship, believing it to be in the process of committing an act of piracy. In fact, the crew of this ship belonged to the Nigerian Navy, and, as a result of the initial attack, a standoff between the two sides ensued, forcing the policemen to lock themselves inside of the citadel for multiple days. The Nigerian Navy has asserted that the police only have jurisdiction over riverine territory, and they have expended efforts to enforce this ban. However, these efforts continue to result in clashes between the Nigerian authorities, and have further contributed to the uncertainty and lack of coordination in the region.

PMSCs have become a significant part of the maritime industry, and their continued use by shipping companies facing tight budgets suggests that it is a successful method of deterring maritime crime. However, much like piracy clauses, it must be kept in perspective that this counter-piracy measure is preventative. In order to address the problem of piracy directly, we must not only protect the lives and livelihoods of seafarers through such security measures, but further address the root causes of piracy that exist both ashore and at sea.


[1] Oceans Beyond Piracy, State of Piracy Report 2013, page 18.

Asile A et B

2014-Navarrete-InakiIñaki Navarrete

Je pris une profonde inspiration avant d’entrer dans l’arrière-cour de l’asile B. C’était le second établissement que nous visitions ce jour-là. Des patients assommés par la chaleur et les psychotropes gisaient à moitié nus dans leurs excréments au centre d’un cercle formé par d’autres patients. Un garçon de mon âge touchait son membre d’un air absent.

L’asile B était pire que l’asile A.

L’asile A, visité en matinée, en était un réservé aux femmes de tout âge. S’il prêtait largement flanc à la critique, il avait au moins le mérite d’être relativement propre : les murs n’étaient pas couverts de zut, le sol n’était pas couvert de fluides, et on pouvait y marcher sans avoir à se boucher le nez. L’affaire était tout autre ici.

Disability Rights International, l’organisme avec lequel je travaille cet été, effectue régulièrement des visites dans les hôpitaux psychiatriques locaux afin de documenter les conditions inhumaines et dégradantes dans lesquelles vivent les personnes handicapées. Lors de ces visites – toujours guidées –, la stratégie est simple. Certains suivent le guide tandis que d’autres trainent le pas à l’arrière pour voir ce qu’on ne veut manifestement pas qu’on voit.

Après un moment à l’arrière, je m’éclipsais donc dans une chambre isolée. Un jeune homme, appelons-le Victor, s’y trouvait, complètement nu et emmitouflé dans un nuage de draps sales d’où dépassaient des bras convulsifs. Notre guide, le directeur-neurologue, me rattrapa rapidement. C’est à grand renfort de termes techniques qu’il m’expliqua que Victor était un “cas perdu”. Plusieurs psychotropes étaient “nécessaires” pour apaiser son ”trouble”. Bref, Victor était une machine qu’il n’arriverait jamais à réparer.

(Photo de Victor, prise avant l’arrivée du directeur)

En regardant Victor planer dans une sorte d’apathie, sans ressort et aisément influençable, et en pensant à la facilité avec laquelle il avait été laissé à son sort dans cette chambre, je n’aurais su dire si ces psychotropes  étaient “nécessaires” ou s’ils s’inscrivaient plutôt dans un schéma de contrôle visant à faciliter la prise en charge de patients trop nombreux par un personnel trop réduit. Il s’agit d’une pratique courante.

J’insistais pour en savoir plus. Victor est un abandonado. Il fait partie de ce groupe de personnes dont les familles, souvent par manque de moyens, parfois par manque de soutien dans leur communauté, se sont résignées à les abandonner dans un hôpital psychiatrique. Parfois aussi, l’abandon découle de la honte et du stigma attaché au handicap. Victor ne reçoit jamais de visites.

En droit, la conséquence immédiate de cet abandon est la mise en place d’un régime de prise de décisions substitutive. Le directeur devient le tuteur et représentant légal des abandonados, ce qui lui donne un chèque blanc gros comme la lune sur leurs vies. Victor, objet de protection et non sujet de droit. Mais c’est compréhensible:

“Voyez-vous, il est comme un enfant qui ne sait pas ce qui est bon pour lui”.

Ce genre de discours du “meilleur intérêt”, on l’accepte d’autant mieux qu’il peut se justifier d’un côté, par des fonctions de protection et de sécurité, de l’autre, par un statut technique et scientifique.  Mais il ne faut pas se méprendre. Le meilleur intérêt dérape souvent. C’est pourquoi le paradigme social du handicap, présent dans la nouvelle Convention relative aux droits des personnes handicapées, demande que l’on congédie ce discours médical dépassé, ces régimes de prise de décisions substitutive ainsi que toute forme d’internement. Il faut plutôt laisser place à l’autonomie des personnes handicapées. Victor, comme sujet de droit.

Dans cette optique, l’asile A et l’asile B sont tous deux condamnables pour leur seule existence. Cela dit, comprendre ce changement de paradigme n’est pas toujours simple et on peut se demander : qu’est-ce que cela signifie concrètement pour ce jeune homme complètement nu et emmitouflé dans un nuage de draps sales? Une comparaison entre l’asile A et l’asile B rendra la chose plus claire.

Avec la question du travail.

Les femmes de l’asile A sont invitées à suivre plusieurs modèles de carrière. Elles peuvent fabriquer des vêtements, des jouets ou cuisiner des plats. Ce qu’elles font avec leur argent ne regarde qu’elles. En m’offrant des biscuits, l’une d’elles m’expliqua dans un Anglais impeccable qu’avec son salaire elle aimait aller au restaurant chaque vendredi. Je souriais. Les biscuits étaient bons. Sur l’emballage, l’inscription “Le travail rend digne”.

IMG_0691

(À l’heure du dîner, cette femme est restée étendue sans recevoir aucune aide)

Et les patients de l’asile B? Regardez cette dame dans la photo. Au mieux, certains participent aux corvées quotidiennes en échange de “cadeaux”, comme des petits gâteaux. Mais l’autonomie et la dignité ne se nourissent pas de petits gâteaux.

Au pire, les patients de l’asile B se trouvent dans un isolement sensoriel dégradant.  La télé, une thérapie musicale une fois par mois ainsi que des sorties sporadiques dans le jardin (plutôt une cage avec des barbelés) résument l’essentiel des activités disponibles. Alors, ils déambulent. D’autres sont attachés à leurs fauteuils roulants toute la journée. Depuis combien de temps? 60 ans. J’imagine que c’est aussi dans leur “meilleur intérêt”.

Faut-il insister plus encore sur la différence entre A et B?

Je voulais visiter ces établissements pour savoir pourquoi je travaille avec DRI. Aujourd’hui, la raison est on ne peut plus claire. Avec ses yeux bleus sévères et son sourire bienveillant de Big Brother, le directeur aux tempes grisonnantes de l’asile B restera pour moi le visage de l’institution totale.

India and its 1971 Refugee “Problem”

“Do they know we are coming?”

In 1971, an estimated 10 million refugees crossed the border from East Pakistan into India (UNHCR 2000 59). The sheer magnitude of this movement of people – the largest single displacement of refugees in the second half of the 20th century (59) – is staggering. Writing from the town of Barasat, a city located in the outskirts of Calcutta, West Bengal, Sydney Schanberg, a journalist with the New York Times, describes the town as a “swarm” with refugees “so thick in the streets that cars can only inch through” (Schanberg 17 June 1971). The refugees seemed to be everywhere – sitting in the streets, crouching in doorsteps, sleeping on porches, occupying empty buildings, and cooking in the fields (Schanberg 17 June 1971). They attempted to build lean-tos only to have the monsoon rains rip them apart (Schanberg 17 June 1971). The refugees, Schanberg writes, appeared “anxious and troubled … look[ing] for someone to answer their questions … ‘Do they know we are coming?’” (Schanberg 17 June 1971).

Refugee Influx (Time Magazine)

Refugee Influx (Time Magazine)

After having “trodden long distances on foot in grim agony and in a desperate effort to escape from the ruthless atrocities of the Pakistan Army” (Luthra 1971 2467), to ask such a question seems out of place, even unnecessary. With its odd mix of apology, affirmation, and imposition, it is the question of a guest who is extended a welcome by the host and yet seems unsure as to the nature and extent of that welcome. Such an interaction reflects what Ranabir Samaddar describes as “the double imperative of how the State governs – a contradictory logic of power and care, and a paradoxical injunction built on the heritage of rule” (Samaddar 2010 113).

Like other mass influxes of populations that sought refuge in India – the Tibetan refugees who arrived in the 1950s and the Chakma refugees who arrived in 1964 (Chimni 1994 378) – the 1971 refugees were indeed welcomed. However, unlike the two previous mass influxes of refugees, the 1971 refugees were extended a limited welcome and were accorded hospitality “only until such time as they were able to go back to their country of permanent residence with dignity” (Mukherji(2) 1974 399). The policy for the 1971 refugees, as articulated by the Indian state, makes no mention of rehabilitation, integration, and absorption (399). Their existence in India was to be temporary and their status was to remain as foreign nationals (399). Their existence would ultimately prove to be temporary when, on December 15, the Pakistan army with 93,000 soldiers surrendered in Dacca (Jahan 1995 202). Following decisive military action led by the Indian army, the independent nation-state of Bangladesh was born (202). Just as the 1971 refugees made history with their arrival, so too did they set a record with their departure. Beginning in December of that year, millions of the refugees returned to a new homeland in what would be and remains the largest repatriation operation of the post-Second World War era (UNHCR 2010 59).

The story of the 1971 refugees – their exodus, reception, and eventual return – forms part of a wider narrative that brings to life the disintegration of one nation – Pakistan – and the birth of another – Bangladesh; the revival of historic grudges between two bitter neighbours – India and Pakistan; the international indifference manifested against a backdrop of Cold War politicking; and the miserable conditions that greeted the 10 million souls who sought refuge in India. The story that serves as the basis of this paper is that of the Indian state, namely the way in which its articulated policies on the 1971 refugees shaped, on the one hand, the state’s understanding of refugeehood and its response towards refugees, and, on the other hand, the refugees’ own understanding of this label and the implications the policies had on their sense of belonging and identity formation. Through an analysis of the decisions taken by the Indian state, the labels administered, and the bureaucratic institutions established, this paper explores the tension between the notion of charity and the notion of rights (Samaddar 2010 114) by asking: On what grounds did the Indian state justify repatriation as the only viable solution to the situation of the 1971 refugees? Since the answer to this question goes beyond the constraints of a blog post (and forms the basis of a paper that is forthcoming from CRG Policies and Practices) I outline one conceptual framework – the legal – to think through the state’s response.

The Legal Approach

Repatriation, along with resettlement and local integration, form the ‘three durable solutions’ to refugee problems as recognized by international law and supported by the Office of the United Nations High Commissioner for Refugees (UNHCR) (Bradley 2006 1).[1] To repatriate, in its most basic form, is to send the refugee or asylum seeker from their country of asylum back to their country of origin (1). The key principles underlying repatriation are the right to return (as codified in Article 13(2)[2] of the Universal Declaration of Human Rights) and the right not to be forcibly returned to situations of persecution or serious danger i.e. the right of non-refoulement (as codified in the negative terms of refoulement in the 1951 Convention Relating to the Status of Refugees (“1951 Convention”))[3]. The solution of repatriation is thus premised on the country of asylum’s right to withdraw refugee status so long as it has determined that protection in the country of origin is viable (Hathaway 1997 551). Once withdrawn, the refugee becomes subject to the regular rules of immigration control and may be required to return to their state of origin (551). The challenge of situating the 1971 refugee influx and state response within the legal conceptual framework is that India is not a party to the 1951 Convention and its 1967 Protocol (Chimni 1994 379). Furthermore, India only acceded to the two Covenants on Civil and Political Rights and Economic, Social and Cultural Rights in 1979, several years following the return of the refugees to Bangladesh (379). The value of this conceptual framework therefore does not derive from what it tells us about India not signing these documents but rather the way in which this non-accession defined and configured the state’s responsibility (Samaddar 2010 115).

Indira Gandhi meeting a group of refugees from East Bengal at the Kaliganji camp, Assam, in June 1971 (Source: http://www.thehindu.com/multimedia/dynamic/00866/17TH-opedBanglaRumi_866425g.jpg)

Indira Gandhi meeting a group of refugees at the Kaliganji camp, Assam, in June 1971 (Source: http://www.thehindu.com/multimedia/dynamic/00866/17TH-opedBanglaRumi_866425g.jpg)

In a meeting with economic editors, Indira Gandhi described the solution to the refugee influx this way: “I am just going to send them back. I am determined to send them back” (Statesman 18 June 1971). This policy of “sending them back” served as a constant reminder that the refugees “belonged to Bangladesh … and were going back as soon as the situation returned to normal” (Rangan 29 December 1971). Had the policy not been this clear and forceful, members of the government feared that they would be giving the wrong impression, namely “that [the refugees] are going to be absorbed in this country” (Statesman 24 May 1971). The policy had two principal implications. First, it was used by the state to justify limiting the refugees’ access to the labour market, relegating the refugees to camps, and discouraging the dispersal of refugees from the Border States to other parts of India (Statesman 21 April 1971). Second, it was employed by the newly created Bangladesh government to encourage and foster feelings of patriotism for the new state. In his tour of the refugee camps, the Bangladesh Minister of Home and Rehabilitation urged the refugees to “not stay here as evacuees but go back and take part in the national reconstruction” (Statesman 31 December 1971). The policy of “sending them back” was realized in a surprisingly successful manner. Funded by the Indian state (Rangan 23 December 1971) and coordinated with international relief agencies and the administration of Bangladesh (Durdins 3 February 1972), over 6.8 million of the 10 million refugees returned within two months of the end of the conflict (Durdins 3 February 1972). Each family was given two weeks’ worth of rations that included rice, wheat-flour, lentils, charcoal, cooking oil, and a small cash allowance (Rangan 2 January 1972).

While the Indian state was not constrained by the international legal regime, refugee rights were recognized in practice, albeit in a limited sense. In an August speech, Indira Gandhi commented that repatriation would only occur if the “conditions for their (refugees) safe return were created” (Statesman 31 August 1971) and again in a September speech, where she articulated her vision of returning the refugees “in safety and dignity” (Rahman Volume 12 80). In the absence of any legal regime according to which the state response can be evaluated, phrases such as “safety and dignity” become highly malleable, even strategic tools to be employed by the state according to its own needs and demands. One editorial roots the responsibility of the state in the notion of humanity (Statesman 22 April 1971). However, to what extent does humanity guide state action? The editorial proposes one understanding of the term by focusing on housing, feeding, and clothing the refugees but arguing against the “dispersal to other States or arrangements for permanent rehabilitation” (Statesman 22 April 1971).

There emerge two principal limitations with this legal conceptual framework. First, the legal framework is unable to account for the situation of those refugees who feared a return to this so-called “home” (Rangan 23 December 1971). For some refugees, particularly the Hindu minority population, this fear stemmed from the threat of religious persecution whereas for others, a desperate economic situation in Bangladesh seemed discouraging (Toffler 5 August 1971). Pervading both the religious and economic concerns is a questioning of this notion of “home.” Toffler discusses repatriation with a group of refugees who respond to him this way: “‘Why should we go back?’ many replied.’ This is our country.’ To the Pakistani Hindu, India has always been Amar Desh – ‘my homeland’” (Toffler 5 august 1971). The state’s use of repatriation as the only solution is premised on the faulty assumption that “everyone wants to return … home,” a premise that the state did not assess since it appeared, “in the absence of other options, to be largely irrelevant” (Zieck 1997 447). Second, the legal framework is unable to evaluate the nature and extent of the voluntary dimension of the repatriation effort. Reports from the press describe the Indian state withholding rations and future transport to encourage the refugees to leave. According to Rangan, “although the refugees were not compelled to return they were not being given much choice either” (Rangan 8 January 1972).

References:

Bradley, Megan. “FMO Research Guide: Return of Forced Migrants.” Forced Migration Online. 2006. http://www.forcedmigration.org/research-resources/expert-guides/return-of-forced-migrants/fmo042.pdf.

Chimni, B.S. “The Legal Condition of Refugees in India.” Journal of Refugee Studies, 1994.

Durdins, Tillman. “Bengalis in Dacca Coping with Problems.” The New York Times, 3 February 1972.

Hathaway, James C. “The Meaning of Repatriation.” International Journal of Refugee Law, 1997: 551-558.

Jahan, Rounaq. Pakistan: Failure in National Integration. University Press Limited, 1995.

Luthra, P. N. “Problem of Refugees from East Bengal.” Economic and Political Weekly, December 11, 1971: 2467-2472.

Mukherji, Partha N. “The Great Migration of 1971: II: Reception.” Economic and Political Weekly, March 9, 1974: 399-408.

Rahman, Hasan Hafizur, and Government of the People’s Republic of Bangladesh Ministry of Information. History of Bangladesh War of Independence Volume 12. Dhaka: Bangladesh Government Press, 1982.

Rangan, Kasturi. “Hindu Refugee Returns, Finds Ruins in East Pakistan.” The New York Times, 29 December 1971.

Rangan, Kasturi. “Refugees to be Returned.” The Statesman, 23 December 1971.

Rangan, Kasturi. “India Begins Returning Bengal Refugees.” The New York Times, 2 January 1972.

Rangan, Kasturi. “Return of Bengali Refugees is Gaining Momentume.” The New York Times, 8 January 1972.

Samaddar, Ranabir. “Refugees and Dynamics of Hospitality: The Indian Story.” In Immigration Worldwide Policies, Practices, and Trends, by Uma A Segal, Doreen Elliott and Nazneen S Mayadas. Oxford: Oxford University Press, 2010.

Schanberg, Sydney. “South Asia: The Approach of Tragedy.” The New York Times, 17 June 1971.

The Statesman. “Evacuees Will Not Be Pushed Back.” The Statesman, 31 August 1971.

The Statesman. “Refugee Dispersal in Big Way From Tomorrow.” The Statesman, 31 December 1971.

The Statesman. “214,000 Refugees Have Come to W. Bengal So Far.” The Statesman, 21 April 1971.

The Statesman. “Mrs. Gandhi Says… I am Determined to Send Them Back.” The Statesman, 18 June 1971.

The Statesman. “Evacuees Not To Be Sent To Other States – Khadilkar.” The Statesman , 24 May 1971.

The Statesman. “Editorial: Yet Another Exodus.” The Statesman , 22 April 1971.

Toffler, Alvin. “The Ravaged People of East Pakistan.” The New York Times, 5 August 1971.

UNHCR. “The State of The World’s Refugees 2000: Fifty Years of Humanitarian Action.” Geneva, 2000.

Zieck, Marjoleine. UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis. Martinus Nijhoff Publishers, 1997.


[1] For a legal analysis of UNHCR and the voluntary repatriation of refugees, consult Zieck (1997). For a critical perspective from the Global South on UNHCR and the voluntary repatriation of refugees, consult Chimni (2004).

[2] Article 13(2): “Everyone has the right to leave any country, including his own, and to return to his country” (United Nations 1948)

[3] Article 33: (Prohibition of Expulsion or Return) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country” (UNHCR 1951).

Interns on Internships: Mise en abyme in Manila

2014-Spillane-Katieby Katie Spillane

The Ateneo Human Rights Center (AHRC) sprang to life in the summer of 1987 as the wake of the People Power Revolution revealed the Philippines’ urgent need for alternative lawyers. Since its founding, the AHRC has evolved into a multi-pronged advocacy center whose capacities range from fundraising (1) to litigation. (2) As an intern at the AHRC, I have had the privilege of observing and participating in many aspects of the AHRC’s work – joining in the annual community school clean-up effort known as “Brigada Eskwela”, (3) attending “trainers trainings” for prosecutors of extra-judicial killings cases (4) and observing consultations between ASEAN diplomats and local civil society organizations.

Impressive though this list may be, the AHRC’s direct advocacy initiatives are just the tip of the iceberg. AHRC’s flagship program is the Human Rights Internship – an annual intensive exposure to alternative lawyering in the Philippines. The mission of the internship program is to form human rights lawyers who will fight for access to justice and for the empowerment of civil society in the name of peace, democracy, gender equality, good governance, and the rule of law. (5)

The program is ambitious. It begins with a rigorous multi-day orientation of advocacy crash-courses in areas ranging from environmental law to women’s rights. Students are then sent in small groups for a one-week immersion home stay with indigenous families. Upon their return, each student is assigned to a host NGO for five weeks “in the trenches” doing legal research and advocacy work.

As an intern in McGill’s own internship program, observing the inner workings of the AHRC’s internship program was often a bit of a mise en abyme. For two days in late May, my internship was devoted to observing interns reflecting on internships. For me, this raised many questions about the role of the human rights center within the community at large, the university setting, and the process of legal education. Among the questions that keep me curious are:

  • How can such centers best channel their financial, scholarly and lobbying resources?
  • Can the impact of their advocacy extend beyond an educational function?
  • Can relationships between students and host environments be symbiotic or are these necessarily lop-sided?
  • To what degree can student-centered experiences be expected to generate serviceable scholarship?
  • Do the strong interpersonal bonds that internships form generate the professional and political momentum necessary to realize broader societal goals or do they remain personal?
  • Are the long-term goals of human rights centers realized through the future work of their interns?

These are questions I will continue to reflect upon as my time in Manila draws to a close. I anticipate more questions will surface on the long flight home, during my research next autumn, and throughout my own professional development. While there are no easy answers, I am grateful to both McGill and Ateneo for their support in asking these questions!


REFERENCES

(1) Rosary Diane B. Maligalig “Ateneo’s Blueplate for Better Learning Program Comes a Log Way (Features)” available online: http://www.admu.edu.ph/news/ateneo’s-blueplate-better-learning-program-comes-long-way-features (last accessed July 18, 2014).

(2) See, e.g. Melencio Sta-Maria et al, v. Secretary of Justice, et al., G.R. No. 203335, April 22, 2014, available online: http://www.chanrobles.com/cralaw/2014aprildecisions.php?id=296 (last accessed July 18, 2014).

(3) Manila Bulletin “Editorial: Bayanihan spirit in Brigada Eskwela” May 18, 2014, available online: http://www.mb.com.ph/editorial-bayanihan-spirit-in-brigada-eskwela/(last accessed July 18, 2014).

(4) American Bar Association “Current Rule of Law Programs in the Philippines: Seeking justice for victims of extrajudicial killings” available online: http://www.americanbar.org/advocacy/rule_of_law/where_we_work/asia/philippines/programs.html#extrajudicial_killings (last accessed July 18, 2014).

(5) Asia Europe Foundation “Ateneo Human Rights Center” available online: http://www.asef.org/about/partners/partner/2572-AHRC (last accessed July 18, 2014).

Welcome to the One Earth Future Foundation!

By Stacey Smydo

2014-Smydo-StaceySince there are three of us working at the One Earth Future (OEF) Foundation in Colorado, I decided to write my first blog post about the organization itself. It’s a very unique organization with distinctive beginnings, beliefs, and goals which definitely merits its own overview.

OEF is a non-profit, nongovernmental organization that was founded in 2007 by Montreal native and McGill alumnus Marcel Arsenault, a successful business entrepreneur who believes in investing in a better future. OEF’s vision is of a world beyond war which can be achieved through governance—hence our motto of “Peace Through Governance”. OEF is “relentlessly empirical”: we operate based on analysis and evidence rather than moral claims. We advocate for multi-stakeholder collaboration and focus on the role of the private sector in achieving a peaceful world. (See, for example, a report recently launched by my cubicle-buddy, Victor, in which he exposes the role of the Kenyan private sector in contributing to the peaceful elections recently held in that country.) For more about OEF’s vision, see here.

That all sounds lovely, but how do we do this? OEF is a “think” and “do” tank with a research and development department as well as implementation projects. OEF has five departments. Research & Development (where I work!) produces research which supports the general vision of the organization, develops new projects, and supports the work of the implementation projects.  Thus far, I have worked on a discussion paper on “bridging the gap” between academia and practitioners working in conflict organizations and on preliminary research for a new implementation project.

The oldest of the implementation projects is Oceans Beyond Piracy (OBP) (where Kyle works!) which works against maritime piracy, originally off the coast of Somalia although they have recently expanded to West Africa as well. In tandem with OBP, OEF also operates the Shuraako program (Shuraako means “partnership” in Somali) which provides loans to small and medium-sized businesses already operating in Somalia. In its work through OBP, OEF realized that, in order to combat piracy, they needed to get to the root of the problem which is that many young Somalis don’t have any other way of making a living and began tackling the problem from this angle. Similarly, OEF has recently begun working in the area of illegal fishing through its Secure Fisheries program. Finally, OEF also has a Responsibility to Protect & Business program (R2P) (where Matt works!) which looks at the role of the business sector in implementing R2P. For more information on OEF’s projects, see here.

So what is it that makes OEF unique? All of the interns recently had a chance to share a lunch with the Founder and talk about why he started OEF and his vision for the future. Marcel approaches everything from the point of view of business. OEF does not advance a moral argument that war is bad but rather that war is inefficient. Specifically, war is bad for business and so businesses should play a role in facilitating peace out of self-interest. This is clearly demonstrated in Victor’s recent report where he found that businesses in Kenya came together to promote peaceful elections because the instability of previous election cycles was bad for their businesses.

There’s OEF in a nutshell. I’ve been here for just over a month and will write more about my specific projects once they are further along!

Otherwise, life in Colorado is fantastic! In our time off, we’ve done lots of hiking and biking, been camping in Rocky Mountain National Park, been to the Red Rocks Amphitheatre, experienced our first Fourth of July (to which I erroneously referred as July Fourth and was repeatedly corrected), and have been enjoying the local culture in Boulder and Denver. It’s truly fascinating to have this chance to live and work in Colorado and to learn more about its distinct culture. We have learned much from our colleagues and friends. Of course, we discuss politics and popular culture—apparently a politician’s favourite sports team can make or break his or her career in politics and it’s completely normal to elect a coroner—but the most interesting differences have come up in our daily conversations and I’m sure there are many more discoveries to come!

Cambodia in Context: Freedom of Assembly + Heavy Clashes Today

2014-Couloumbe-JonathanBy Jonathan Coulombe

The first few months of 2014 were dark in terms of freedom of assembly in Cambodia. Hence, when I arrived for my internship, this was the main topic surrounding us. From January to today, we saw ongoing attempts by the authorities to silence dissenting opinions, often with violence. Today, we can see the somber results of this perpetual constriction of rights.

The issue mostly started with the elections, but culminated with the garment workers strikes. Following the 2013 national, the government promised to increase the minimum wage in the garment sector by 64 percent, from $61 to $95, a number yet under the demanded $160 per month to “stop surviving” [1], researches having confirmed that the current government offer of $100 per month is truly insufficient to satisfy basic needs of workers[2].

While there is a legally entrenched right to strike under the Constitution, on Thursday January 2, protesters clashed with soldiers from the Royal Cambodian Armed Forces’ elite 911 brigade. At least 15 people were injured while being beaten by sticks and rocks by the 911 brigade and 10 were arrested[3]. Their whereabouts were hidden for 5 days until it was confirmed by the government officials that they had been transported to Correctional Centre 3 CC3) located in a remote area in Kampong Cham province rather than CC1, the usual and closer detention center[4].

Furthermore, the day after the clashes, on January 3, 2014, protests continued and so did its violent repression. Security forces in fact used live ammunition against striking workers[5]. At least four civilians were shot dead, 38 were injured and a teenager, Khem Sophath, was last seen with bullet wounds before disappearing. He is still missing. Thirteen more men were arrested on this day[6]. These detainees together would form the 23 (I will speak of them in a further entry).

Then, on January 4, 2014, the Ministry of the Interior issued a media statement announcing a ban on all public gatherings and marches while also expulsing everyone from Freedom Park, the “Democracy Plaza”. The park was fenced with barbed wire.

This reduction of freedom of assembly also occurred the same day military forces were deployed at a number of points throughout the city and followed a statement issued by the Ministry of Defence, saying that it would protect at all costs the results of the July 2013 general elections and the government led by Prime Minister Hun Sen[7].

Arrest for gathering continued later in January and February as human rights defenders were often detained as they attempted to demonstrate. They were usually release the same day, signing forms promising that they would not take nor incite any actions prohibited by law, including demonstrations.

This did not stop the protests going on nonetheless. Other demonstrations in fact took place, calling for actions on many issues. The demonstrations were always faced with violent repression.

This ban of public gathering seemed to be a one-way policy however as the ruling party (CPP) still hosted a large public events and tolerated anti-CNRP gatherings[8].

The ban was abolished on February 25, 2014, by the ruling party, with Prime Minister Hun Sen warning of possible violence that could occur under gatherings[9]. Moreover, reference is still being made to the ban as if it was still in place, over its application and the right of freedom of assembly. Similarly, since February 25, protesters continued to face massive intimidation by security guards and police forces in place.

While I monitored some gatherings since my arrival with LICADHO, I must say that the continuous presence of police forces and security guards always increased the tension in place. Nonetheless, I was lucky enough to witness very few acts of violence. Today, however, the population tried to take back Freedom Park in a gathering organized by the opposition party and when security guards tried to repel the protesters, violence emerged like never before on the part of the population who took revenge on the authority after having endured repression for so long.

I invite you to watch this video by the Phnom Penh Post to get the details of it:

https://www.youtube.com/watch?v=cDlWePP9eCQ

The question that remains is what will be the next step to this violence? If the protesters fight back and stop being non-violent, will the increasingly present security guards be equipped with more dangerous weapons and equipment? Will the security guards try themselves to avenge this event?

LICADHO has issued a statement today regarding what has happened (you can read it here: http://www.licadho-cambodia.org/pressrelease.php?perm=348). As always, the organization is very critical of any form of violence, whether from the authority or the protesters. This kind of events can only lead to the escalation of conflicts.


[1] http://www.cambodiadaily.com/archives/amid-strikes-minister-raises-minimum-wage-to-100-49798/

[2] http://www.licadho-cambodia.org/pressrelease.php?perm=333

[4] http://www.licadho-cambodia.org/reports/files/192LICADHOTimelineLethalViolence2014-English.pdf

[5] http://www.licadho-cambodia.org/pressrelease.php?perm=334 – http://www.licadho-cambodia.org/pressrelease.php?perm=336

[6] http://www.licadho-cambodia.org/pressrelease.php?perm=336

[7] http://www.licadho-cambodia.org/pressrelease.php?perm=335

[8] http://www.licadho-cambodia.org/reports/files/192LICADHOTimelineLethalViolence2014-English.pdf

[9] http://www.rfa.org/english/news/cambodia/warns-02252014163146.html


A Light Comment on Small Change

2014-Heilke-MatthiasMatthias Heilke

The stuff I have been working on the last couple weeks is a bit intense. Also, I already wrote a blog post about it for CEHURD, which you can (and totally should!) read here. So let’s talk about currency instead.

Uganda has a fairly annoying system of money to handle. The smallest bill is worth 1000/= (“/=” means “shillings”), which is the equivalent of about forty cents. The bills go up to 50,000/= ($20); they are all different colours, but the actual colour of a given denomination might vary depending on age, the 1000/= and 2000/= bills are often too dirty to see well, and anyway I’m colour-blind. Coins run from the diminutive 50/= to the two-piece 1000/=, though the 1000/= coin is less common than the 1000/= bill. The 100/= and 200/= coin are most common, and annoying to distinguish from each other — they’re just very slightly different sizes.

All bills and coins, arranged small-to-large, left-to-right.

All bills and coins, arranged small-to-large, left-to-right.

This is not a wealthy country. If I am walking down the street with 100,000/= ($40) in my pocket, I’m pretty loaded by local standards. Breaking a 50,000/= note is a chore. Any time I have to use the equivalent of a two-dollar bill to pay a fruit vendor, I know she will probably have to run into the nearest shop for change. One of my friends once used a 2,000/= bill (80¢) to pay a fruit vendor, and the vendor commented on what a large bill that is.

I bring this up because of what you don’t see on the street: the 50/= coin. Nobody ever prices anything, down to the tiniest piece of fruit, to divisions smaller than 100/=. In a place where the boda-boda drivers (which is a comparatively well-paying profession) will haggle endlessly over a 2000/= fare, nobody would think to worry about 50/=.  And 50/= is worth twice as much as a penny.

I’m just saying, America.

A First Blog Entry from a LICADHO Intern: Arrival and First Few Tasks

2014-Couloumbe-JonathanBy Jonathan Coulombe

It’s been a little more than a Month since I started my internship at the LICADHO in Phnom Penh. The adaptation to the hectic capital city of Cambodia took some time, but I settled into a nice little routine and now enjoy some of its charms while I focus on my work during week days.

licadho office

Speaking of work, I arrived in Cambodia during important times and events regarding freedom of assembly in the country. This, as I would find out, would be the major topic of the year with regards to human rights. In fact, the government had issued a ban on public gatherings on early January, following massive protests from Garment workers and human rights activists. This ban has now been set aside, but gatherings and marches are each time met with heavy forces in order to intimidate the people.

I came in Cambodia during the hearings of high profile cases regarding crackdowns that occurred during these marches at the beginning of the year. While this timely arrival delayed my internship, LICADHO not having the human resources to welcome me among its team, the NGO recommended that I followed the events closely, which I did (I will post an entry specifically on the subject shortly).  As I started, we could sense that the organization was recovering from a long struggle the drained its time and energy.

That said, my tasks here since I started mostly consisted of helping the staff to get back on track with most of their activities. This is how I helped LICADHO as of today. I was asked to assist the organization in compiling data and writing different sections for its 6-month report. I also transcribed notes from the testimonies of the trials for the 23 accused of the high profile cases, to be put to use on a later date when we will focus on the defence for the appeal (which will surely happen).

I was also tasked on written a graphic report on the different Police forces, what distinguishes one from the others, and their powers and limitations. This is quite important for people are confused in light of the enormous amount of departments, jurisdictions, and uniforms. More importantly, some forces do not have the power to arrest people unless a flagrant crime is committed in front of them. However, as Cambodians do not know their rights and the limitations of these forces, officers may abuse their power and illegally arrest or detain people.

Other small tasks have consisted, for the moment, on working on the photo database, doing research for land eviction cases, supporting detainees in Municipal court, and monitoring protests.

These are interesting and changing times for Cambodia. My position in LICADHO enables me to learn rapidly and in depths about the occurring events. Hence, through this blog I will be sure to address some issues specifically. Stay tune for the next few entries…

The Refugee Experience in Bangkok

It sucks to be a refugee. And it really sucks to be a refugee in Bangkok.

This summer I am working in Bangkok as a Legal Officer with Jesuit Refugee Service, providing legal representation for asylum seekers and refugees. The huge demand for legal services has our team working as long and hard as we can to serve the backlog of hundreds of people on the growing waiting list.

Each sheet is a asylum seeker waiting for service.

I worked in a very similar role in Cairo with AMERA in 2012. These roles have allowed me to develop an intimate understanding of refugees’ lived experiences in urban settings. Refugees who have fled persecution still face discrimination and struggle to survive in their host countries. I have found that this struggle is shaped by five key factors:

– Domestic legal regimes;
– The regional UNHCR office;
– Support from family, community and diaspora;
– Local attitudes towards refugees; and
– Local civil society.

In this post I’ll talk about the importance of domestic legal frameworks and the UNHCR office, and how these shape the refugee experience.

JRS waiting room area.

The most determinative factor is the host country’s legal refugee regime. The 1951 Refugee Convention defines what a refugee is, their rights, and the obligations that states have to refugees. Thailand is not a signatory to the Convention and so the government does not recognize refugees and considers them to be illegal migrants. While refugees are still able to seek legal refugee status from the UNHCR, obtaining this status does not prevent them from being imprisoned or refouled. Every time refugees leave their homes in Bangkok, even to access legal services, they risk being arrested by police and thrown into Bangkok’s hellish immigration detention centre (IDC) for an indefinite period of time. The fear of the IDC and refoulement is always present among my clients, and these are very real possibilities for all of them. Many of my clients and JRS staff members have family in the IDC, and many have been forcibly returned to their countries to face further persecution. There is no recourse for us to pursue in these cases where refugees’ most basic rights are threatened.

One of the many lizards who hang out on JRS grounds.

The second factor influencing the refugee experience is the local UNHCR office. In many countries in the Global South refugees depend on the UNHCR to enforce international refugee law because many host countries lack domestic legal refugee regimes. The UNHCR’s role in these settings is very important, and they often face serious dilemmas fulfilling this role. As Thailand is not a signatory to the Convention, the UNHCR has no legal basis to support refugees in Thailand. The UNHCR is constantly worried about being kicked out of Thailand and so they walk a fine line between meeting their mandate and giving into Thai government pressure. This impacts refugees’ rights in a number of ways. For example, the UNHCR does not accept refugee status applications from specific groups from neighbouring countries, such as the Hmong from Laos, in an effort to appease the Thai government. As a result, members of these groups, who would normally be considered legitimate refugees under international law, are not protected by the UNHCR because their ethnic group has been blacklisted. The UNHCR also faces budgetary constraints. This results in the rights of refugees being significantly compromised. For example, the needs of unaccompanied children are normally treated with high priority. Unfortunately, in Bangkok there are only two interns at the UNHCR managing all of these cases and they can’t keep up. As a result, more than 100 children who are without guardians are in Bangkok and we have no knowledge of their living conditions unless they come to JRS for support. This leaves them extremely vulnerable to exploitation and arrest. I have 4 of these children as clients and they are very hungry, living in unstable housing situations and are in poor health. There are almost no resources available to these children, aside from legal and pathetic financial assistance.

JRS offices.

 

 

 

 

 

 

 

 

 

 

 

 

 

Budgetary constraints further impact refugees’ right to a fair legal process. There are not enough resources to meet the growing needs of the refugee status determination (RSD) system in Bangkok. Vulnerable asylum seekers often have to wait over two years for a brief three-hour interview with the UNHCR that determines whether they will be recognized as a refugee and granted legal status. Legal aid is not allowed to accompany refugees to RSD hearings, nor are transcripts of interviews made available. This is particularly unfair to refugees hoping to appeal a rejection. The UNHCR in Thailand often provides generic and unspecified reasons for rejection and because we were not at the interview and do not have access to transcripts, we can’t provide thorough representation on appeal. That appeal can then be rejected with no explanation leaving the refugee fully in the dark.

Our office is right next to Victory Monument, which has been a centre for protest throughout the current military coup.

It really sucks to be a refugee in Bangkok. Most refugees are hungry, sick, scared and are without secure housing. They cannot rely on their most basic legal rights as a tool to improve their outcomes. It’s a situation that has left me feeling demoralized and impotent. But I have been able to seek some solace in small individual wins against a backdrop of massive systemic failure. In my next post I’ll have a chance to talk about how the remaining factors contribute to the refugee experience. Unfortunately, community support, Thai society and civil society can either perpetuate or only partially alleviate the injustices that refugees face here.

 By McLean Ayearst

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