Look-back on the last day

By Laetitia Yantren

The last day of my internship, I presented my work to my colleagues and external members of CRG. CRG normally hosts Friday Lectures, during which academics present their research to a crown of their peers. Because CRG is a research group focused on migration that attracts academics knowledgeable about various aspects of migration—migration and development, social movements in Bengal, international migration, migration and gender—presenting to this crowd is both rewarding and nerve-wracking.

Nevertheless, I unclenched my sweaty palms and went ahead with the presentation. As my stutter grew into more confident affirmations, I realized my luck at having the privilege to present in front of this knowledgeable crowd.

My presentation focused on the international and national legal frameworks for labour in the Gulf, with a focus on Indian migration to the United Arab Emirates. I concentrate on trade agreements as well as the kafala system, the sponsorship program for foreign workers in the Gulf and other Arab countries. Deeply imbricated in the hierarchal tribal structures of Gulf society, the doctrine originates from Islamic doctrines of adoption. The kafala system separates labour law and immigration law for migrant workers, enabling the state to delegate its immigration authority to employers, who by definition must be Gulf nationals. Employers (kafeel) apply for and obtain work permits for their employees, who delegate to the employer their juridical personality as workers. The conflict of interest is glaring: employers are at once agents of the state in immigration matters, and agents of their employees in labour matters.

Under this system, the worker is caught in a tangled web of authority that resembles the family. My presentation argued that the kafala system makes all labour domestic, establishing an unescapable system of dependency between employer and employee that stands firmly outside the free market in order to promote and protect capital from the demands of labour. It is telling, in this vein, that the reforms to the kafala system have purposefully excluded domestic workers, who remain caught within the webs of responsibility, representation and restraint that are characteristic of the domestic relationship.

First, I described the kafala system in the UAE, its international and national legal components, as well as changes that have been made in response to claims by NGOs and other bodies. My discussion of this system included a substantive legal analysis of the kafala system from the point of view of the migrant worker. Finally, I developed the metaphor of domestic work by leaning on theorization of domestic labour. Drawing on the metaphor of family and nation, I argued that the exception is indeed the rule. Building parallels between foreign domestic and non-domestic workers, I argued that both are caught within the webs of responsibility, representation and restraint that are characteristic of the domestic relationship.

When I finished my presentation, I received important feedback from attendees, feedback which will inform my changes to the paper before publication.

Perspectives on the Inter-American Court of Human Rights and the European Court of Human Rights

By Brianna Gorence

The time I have spent this summer at the Inter-American Court of Human Rights, the regional human rights Court for the Americas, has lead me to contemplate the differences in the functioning of the Inter-American Human Rights System and the other regional human rights systems. Since the African Court of Human and People’s Rights is the youngest of the three regional juridical human rights systems—only becoming fully operational in 2009, with its first judgment on the merits of a case in 2013[1]—for the purposes of this blog, I will only consider the similarities and differences between the European Human Rights System and the Inter-American Human Rights System.

As independent instruments of regional organizations,[2] the substantive rights deliberated at the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) are quite similar.[3] Protected in the Conventions and Protocols of both instruments are the right to life, (Article 4 ACHR; Article 2 ECHR),  the prohibition on torture (Article 5 ACHR; Article 3 ECHR), the prohibition on slavery (Article 6 ACHR; Article 4 ECHR), the right to liberty and security of the person (Article 7 ACHR; Article 5 ECHR), the right to a fair trial and judicial guarantees (Article 8 ACHR; Article 6 ECHR), the principle of nullum pena sine lege (Article 9 ACHR; Article 7 ECHR), respect of private and family life (Article 11 ACHR; Article 8 ECHR), freedom of thought, conscience and religion (Article 12 ACHR; Article 10 ECHR), freedom of expression (Article 13 ACHR; Article 10 ECHR) freedom of reunion and association (Article 15 and 16 ACHR; Article 11 ECHR), the right to matrimony (Article 17 ACHR; Article 12 ECHR), the right to an effective recourse (Article 25 ACHR; Article 13 ECHR), the prohibition of discrimination and equality before the law (Articles 1(1) and 24 ACHR; Article 14 ECHR and Protocol 12), the right to property, (Article 21 ACHR; Article 1 Protocol 11), and freedom of circulation and residence (Article 22, Protocol IV)… already a long list among others.

Although there may be differences in the rights covered in each Court,[4] the additional protocols continue to fill the gaps in the jurisdiction of the Courts.[5] Nonetheless, subtle differences remain: capital punishment is definitively prohibited in the European system—even during war—through its Protocol 13, whereas, although the right to life, protected in article 4 of the ACHR has been interpreted strictly by the Court,  the Inter-American Protocol to Abolish the Death Penalty does not go as far as an outright prohibition.[6] What does this mean? Does this make an enormous difference? In the larger scheme of things, precedents continue to be made and each Court’s jurisprudence continues to evolve. In the smaller scale, a disparity in the rights recognized could make the difference between a violation interpreted by the Court and no violation.

Other differences between the Courts include the ECtHR’s doctrine of the margin of appreciation which allows the Tribunal to permit a degree of discretion in States’ implementation of the ECHR and its Protocols.[7] The IACtHR does not have such a doctrine. The result of this is that in the Inter-American system, each State is held to the same standard, regardless of their divergent political, cultural and legal traditions. Given the particularities of each society and the specific violations in question, such a strict standard at the IACtHR could be criticized as overly restrictive, while on the other hand, a large degree of derogation could estrange human rights from the principle of equality before the (international) law regardless of their State, national origin, ethnicity, race, gender, religion, etc.

Another difference between the two institutions is the way in which Court sessions are held. At the IACtHR there are public hearings and private hearings, normally held with all seven judges. These hearings are not held on a permanent basis. At the ECtHR, the Court is permanent and does not have the filter of the Commission to limit the entry of complaints. Due to the higher volume of cases heard, the ECtHR has a single-judge formation, committees of three judges, Chambers of seven judges and a Grand Chamber of seventeen judges (Article 26 ECHR). Most notably, unlike at the IACtHR, at the ECtHR the hearings are only for allegations and thus there are no witnesses or experts that appear before the Court.

While both Courts can order reparations, it is pertinent to recall that the ECtHR normally only provides “Just satisfaction”; only in recent cases has it ordered reparation measures other than monetary reparations. Furthermore, while the IACtHR is more widely recognized for its ability to take specific injunctive measures to ensure the temporary protection of petitioners, the ECtHR can also take interim measures in accordance with Rule 39 of the Rules of the Court where there is an “imminent risk of irreparable harm.”[8]

Finally, the IACtHR has issued 22 advisory opinions[9] on a wide variety of issues to date, including rights and guarantees of children in the context of migration (Advisory Opinion No. 21; Advisory Opinion no. 17), due process (Advisory Opinion No. 19) and judicial guarantees in states of emergency (Advisory Opinion No. 9, Advisory Opinion No. 8). Drawing a stark contrast, the ECtHR has not issued a single advisory opinion. The advisory opinions issued by the IACtHR have allowed the Member States of the OAS to consult the Court on the interpretation of the regional Human Rights Treaties (64.1 ACHR), for the Court to express its opinion on domestic legislation (64.2 ACHR) as well as to further develop its stance on a number of important issues.

The internship with the IACtHR has been most valuable because it has allowed me to see an institution that I had previously idealized without its pedestal—to see the inside of the Court, the people that make it function to thus come to a position where I could look at the practical differences between the European Human Rights System and the Inter-American Human Rights System. The implications that the differences between the two institutions have is something that I will continue to ponder over. Nevertheless, despite their differences (and the criticisms one can make of them as institutions) I believe they hold an invaluable worth for the advancement of the relationship between the State and its citizens and offer optimism for the establishment of precedent for the future.


[1] “In First Judgment on the Merits, African Court Finds Tanzania Violated Citizens’ Right to Participate in Democracy by Prohibiting Independent Candidates”, International Justice Resource Center, July 5, 2013.

[2] The two regional organizations are: The Organization of American States and The Council of Europe.

[3] See the American Convention on Human Rights (ACHR) and the Convention for Protection of Human Rights and Fundamental Freedoms, the European Convention on Human Rights (ECHR).

[4] See the perspective expressed on the right to juridical personality (Article 3 ACHR), the right of reply (Article 14 ACHR), the right to a name (Article 18 ACHR), the rights of the child (Article 19 ACHR), the right to nationality (Article 20 ACHR), political rights (Article 23 ACHR), and the right to progressive development of the economic, social and cultural rights (Article 26 ACHR) in the introductory chapters of Jurisprudencia Regional comparada de Derechos Humanos by Fabio Salvioli, Claudio Zanghi and Diana Di Peitro, 2013.

[5] Such as the right to education covered in the European Human Rights System Protocol I and in the Inter-American System in article 13 of the Protocol of San Salvador, although the latter is not yet in force.

[6] See, for example, the Case of Dacosta Cadogan v. Barbados, Judgment of September 24, 2009, paragraph 47: “In interpreting the issue of death penalty in general, the Court has observed that Article 4(2) of the Convention allows for the deprivation of the right to life by the imposition of the death penalty in those countries that have not abolished it. That is, capital punishment is not per se incompatible with or prohibited by the American Convention.  However, the Convention has set a number of strict limitations to the imposition of capital punishment.  First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses.  Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused.  Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance therewith must be strictly observed and reviewed”. See also “The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition”, OEA/Ser.L/V/II Doc. 68, 31 December 2011, < https://www.oas.org/en/iachr/docs/pdf/deathpenalty.pdf>.

[7] See also “An overview of the Strasbourg Court’s margin of appreciation doctrine”, Open Society Foundations, April 2012, <https://www.opensocietyfoundations.org/sites/default/files/echr-reform-margin-of-appreciation.pdf>.

[8] Factsheet – Interim measures, European Court of Human Rights Press Unit, <http://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf>

[9] See Advisory Opinions, <http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en>.

My Ultimate Summer Experience in Budapest

By Jacinthe Dion

In retrospect…

View of Budapest from Gellért Hill

View of Budapest from Gellért Hill

This summer I flew to the unknown. All my family was telling me I would come back a different person. They were right, but I had not realized to what extent travelling and interning abroad would have on me.

I got to discover different ways people live life. I no longer had control over my environment and I was outside my comfort zone 24/7.  It was a challenge at first, but a really nice one. Whether it was struggling at the market to buy some fruits or learning how to use new databases at work, I was constantly learning and growing. During the entire summer, I ended up accidentally acting like a fool multiple times a week. This one time, I was at the grocery store and a lady spoke to me in Hungarian. I replied “nem te,” thinking I was saying “I don’t know.” It was only when I used nem te with a Hungarian friend from work that I realised I was totally off. I should have been saying nem tudom; nem te meant “not you”.

The people

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The last day the four of us were together in the office

I had the opportunity this summer to make friends from all corners of the world. I had the opportunity to work with an incredible and brilliant team at the Mental Disability Advocacy Centre (MDAC). I am also extremely grateful to have developed close relationships with the other interns. From practicing my linguistic skills in Finnish, to comparing weird expressions France has but Quebec doesn’t or vice versa, and climbing Gellért Hill while learning Hungarian History, I cherished every moment I got to share with these extraordinary individuals.

My supervisor, Barbara, and I during my last week

My supervisor, Barbara, and I during my last week

Every day, our lives intersect with people and we do not always know the influence or impact they will have on our life. We will never truly know how these moments will affect us, that is, until they do. Included in these individuals is Zóra, a student completing her Master in Public Administration. Zóra has been in a wheel chair since she was a child and this woman is pretty amazing. My encounter with her changed a lot of preconceived ideas I had without even really knowing I had them. “I don’t like it when people come up to me and tell me that I am an inspiration,” she told me one morning while heading to the office.

 

 

“I don’t go up to them telling them I find it inspiring that they woke up this morning, got dressed, made a coffee and were heading to work. I’m not an inspiration just for doing normal things.”

In some ways I always knew this, but it was after this exchange that it became apparent to me: if people fixate on how inhibited they think people with disabilities are, the emphasis shifts to their obstacles rather than their achievements. Now, I personally know Zóra and as a friend, I do find her inspiring. However, it is not because she does the same things as you and I that I find her inspiring; rather, it is because of who she is.

Zóra and I

Zóra and I

I have the highest esteem and respect for her. She is driven, inspired and passionate. She lives in one of the only accessible apartments in the city and is trying to change how rare they are. She is extremely generous, so patient and remarkably motivated. For two weeks this summer, while interning full time at MDAC during the week, she was also partaking in a training to become an Ambassador for Amnesty International Hungary. After 5 days of working 9:00 to 5:00, she committed to week ends spent in a school from 10:00 to 5:00, studying and receiving training. She is the humblest person I have ever met. She taught me so much without even intending to.

A final reflection

Freedom from torture, right to legal capacity, inclusive education and access to justice are issues I dealt with daily. Litigation meetings, jurisprudence research for ongoing MDAC cases and international standards research are a few ways I contributed to MDAC’s activities this summer.

News review, jurisprudence review, writing summaries and writing newsletters were part of my routine. Last but not least, learning how to express myself in less than 140 characters this summer was a struggle.

Now I am back home and I treasure the familiar so much more than I used to

Now I am back home and I treasure the familiar so much more than I used to

Here’s to not enough sleep and too much walking on the streets.

To late suppers at night and to running on Margaret Island when it’s still bright.

Here’s to the sun, the heat, the fun I had on my summer beat.

An experience I’ll always remember, memories that will stay with me forever.

Wanderlust will always be a part of my life.

Full Circle Moment

By Anna Goldfinch

I started out my internship knowing virtually nothing about maritime piracy, let alone the laws that surround this issue. I had a million questions. After a summer at Oceans Beyond Piracy, I know a lot more, but I have a million and one questions. This is because the issue of maritime piracy is complex, with intersecting issues, lots of gray areas, little precedent, and no concrete answers. As I worked my way through a variety of topics this summer, it all felt a little disjointed.

That was until I started working on the issue of Private Maritime Security Companies (PMSCs). PMSCs provide armed guards to ships to protect them from piracy. Generally speaking, having armed guards on ships has been found to reduce the number of pirate attacks. This issue is good indicator of what is actually happening in the maritime domain to respond to piracy and also brought all the work that I had been doing full circle.

Initially, the response to a surge in violent pirate attacks was governance. This was the first thing I learned about during my internship. International treaties mandate signatories to pass national anti-piracy legislation. Nations create anti-piracy strategies, plans, and legislative frameworks. However, this is foiled by the fact that the reporting of piracy is actually very low. There is no way to enforce anti-piracy laws if piracy is going completely unseen. Reporting is low because there are major financial disincentives for ships to report that they have been attacked. Costly inspections that would follow a report of piracy hurt the shipping companies’ bottom line and the seafarers’ wallets.

With a lack of reporting comes a lack of prosecution. There are very few cases of countries using universal jurisdiction to prosecute for piracy. While there has been some success in Somalia through a United Nations Office on Drugs and Crimes (UNODC) project that involves special courts, prisons and transfer agreements for accused and convicted pirates, this has not been seen elsewhere in the world.

Because of this, the shipping industry has looked for alternative ways to protect their workers and their goods. Their solution is hiring privately contracted, armed security guards (PMSCs), which was previously prohibited. As previously mentioned, this has seemingly led to a reduced amount of violence against seafarers. However, anecdotally these armed guards are often poorly trained in the escalation and use of force and will commonly open fire on boats that may try to approach their ship. After having researched PMSCs further, they aren’t necessarily a solution, but rather a simple reversal of those doing the attacking and those being attacked at sea.

From a human rights perspective, this bothered me. Pirates, while engaging in criminal activity, should still have all of their human rights guaranteed to them, including due process and a fair trial. Currently, it seems that a pirate may walk free if it is deemed they would be too costly to prosecute, or killed if an embarked guard feels threatened. This complete unpredictability of punishment is, in my view, unjust.

And this is where my work was brought full circle. My last task at Oceans Beyond Piracy was to research ways of holding PMSCs more accountable for their actions, providing better standards, training, and recourse for wronged parties. Essentially, I was looking into how to use governance to solve the problem of violence at sea.

In this exercise, I realized that so many of the problems that we try to address through human rights work are so intertwined, so complex, that sometimes we end up governing ourselves full circle. My millionth and one question is how do we make human rights focused interventions that break these full circle moments to provide solutions that are just and lasting?

Without the Rule of Law

Alexander Agnello

Some of my loved ones asked how I “helped” in the Philippines. It is a question that is hard to answer without sounding like BLSAM[1]’s “intrepid global citizen”[2]: the person who came prepared to “make a difference”. The truth is that no amount of education could have prepared me for the regime change in the Philippines. Under the newly elected Duterte administration, there have been over 2000 summary executions in the last two months[3]. In a country where justice is “slow” and the prison system is one of the most overcrowded[4], trial by publicity has become the main method of usurping crime.

I am referring to a president who publishes hit-lists and turns poor citizens into contract killers. In his profanity-filled speech to a crowd in the slums of Tondo, Duterte calmly explains “[i]f you know of any addicts, go ahead and kill them yourself as getting their parents to do it would be too painful”[5]. In fact, the vast majority of summary executions have been performed by vigilantes, and on the streets of Manila lay corpses with placards that read “Do not follow me. I am a drug pusher/dealer” in Tagalog.

With this blatant disregard for the rule of law, stakeholders are focusing on informing the public of the atrocities this government is committing, and making important links to the infamous Marcos martial law era. But you could only do so much condemning. The Philippine National Police are part of the death squad, the country has a dire journalistic impunity record[6], and so field reporting by other groups has been admirable and necessary. A report submitted by Father Amado Picardal shows that none of the 1424 suspects killed from 1998 to 2015 by Duterte’s former government in Davao were charged in court.”[7] Another organization I met with, the Humanitarian Legal Assistance Foundation (HLAF)[8], are working in conjunction with local governments for expedited due process through a jail decongestion project. HLAF Attorney Kim Claudio proposed that we visit some of the city jails to provide legal information to detainees and update some of them on their cases. He explained to me that many of the detainees wait years, sometimes decades, for their cases to be heard. Although detainees are presumed innocent in the eyes of the law, society tends to brand them as criminals because they have spent so much time in the penitentiary system. Shortly after our visit, photos of overcrowding in Quezon City Jail that showed inmates sleeping on top of other inmates made their rounds on international news and social media. I hoped that the public condemnation of abominable prison conditions would signal a turn of the tide, but now I am uncertain. After a promise to kill 100 000 criminals and “fatten the fish in Manila bay”, thousands of Filipinos continue to turn themselves in out of fear of being killed on plain suspicion[9][10].

 

Credit: Noel Celis/AFP/Getty Images

Credit: Noel Celis/AFP/Getty Images

 

The rule of law is often seen as a starting point and a constant in theoretical work in law and political philosophy. However, in a country where the best human rights lawyers and advocates are put under heavy pressure by a state that promotes vigilantism, abuses power, and provides no chance for due process, it is difficult as an intern to know where to begin. I’ve read and watched debates on alternatives to the rule of law and international standards, but I had never worked alongside people struggling to uphold them until I came to the Philippines. I left Montreal on the day of the national election, without a clear idea of how hard it could get. Fortunately, I had the chance to work in solidarity with alternative law groups and an inspiring group of Ateneo Human Rights Interns, who all work relentlessly to hold the Duterte administration accountable, and who serve “the lost, the least, and the last”.

Human Rights Interns Group Arawatan at a retreat in Tagaytay.

Human Rights Interns group Arawatan at a retreat in Batangas. Credit: The Ateneo Human Rights Center, August 4, 2016.


[1] The Black Law Students’ Association of McGill

[3] http://www.businessinsider.com/rodrigo-dutertes-drug-war-in-the-philippines-has-killed-2000-2016-8

[4] http://time.com/4438112/philippines-overcrowded-prison-manila-rodrigo-duterte/

[5] https://www.theguardian.com/world/2016/jul/01/philippines-president-rodrigo-duterte-urges-people-to-kill-drug-addicts

[6] http://www.cnn.com/2015/05/04/asia/philippines-deadly-for-journalists/

[7] http://www.manilatimes.net/duterte-kills-only-bad-men/259609/

[8] http://home.hlaf.org.ph/

[9] http://www.bbc.com/news/world-asia-36251094

[10] http://www.cnn.com/2016/08/08/asia/duterte-war-on-drugs-officials-surrender/

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.