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The Ateneo Human Rights Center (AHRC) and Human Rights Education

Katerina Lagassé By Katerina Lagassé
The Ateneo Human Rights Center (AHRC) of the Ateneo de Manila School of Law facilitates an internship program that provides an opportunity for Ateneo law students to gain experience in human rights advocacy and alternative lawyering. This program provides students with an understanding of the “vulnerable sectors of Philippine society”.[1] Throughout the year, different batches of students participate in the internship program. There are three main activities the Semestral Break Internship program (two weeks), the Summer Internship program (2 months), and the Graduate Internship Program (yearlong).[2] Subsequent to the internship, students continue to support the program and the centre by generating activities and research that supports human rights advocacy.[3] The summer program is unique because it includes a week-long immersion in an Indigenous community that is followed by an internship placement at human rights groups around the country. The mandate of these organizations ranges from addressing issues related to the environment, children, Indigenous peoples, urban poor, women, fisher folk, detention prisoners, and migrants (to name a few).[4] Each placement allows students to gain an invaluable hands-on experience that exemplifies the barriers that exist to access to justice and the importance of alternative lawyering in the Philippines context (and abroad).

In Atty. Marlon J. Manuel’s article “Lawyer with the Poor”, that is reproduced in the Training Manual for Paralegals (and interns), he deconstructs the concept of alternative lawyering. For Atty. Manuel, it is a form of lawyering that uses legal tools and works through the legal system to address social issues but is not limited to solely providing legal aid.[5] Alternative lawyering is distinct from traditional conceptions of human rights lawyering in that it focuses on “economic, social and cultural rights rather than on civil and political rights” while “seek[ing] to effect societal change”.[6] This form of practicing the law requires understanding the precarity of social relationships and circumstances that perpetuate injustices and necessitates working with the marginalized not for them.[7] Atty. Manuel’s legal career reflects this philosophy and practice which the interns were able to witness in the documentary on the struggle of the Sumilao Farmers before commencing their internships.

Prior to departing on the immersion, students undergo the basic orientation seminar and read the Training Manual for Paralegals. During the seminar, presentations by different specialists provide a framework to understanding Human Rights in the national context. This year, the presentations included: Alternative Lawyering (Atty. Anmau Manigbas, AHRC), Legal Aid and Client Interview (Atty. Kenjie Aman, ALSC), Children’s Rights (Atty. Nica Yan, AHRC – AKAP), Refugees, Statelessness and Internally Displaced Persons (Atty. Anmau Manigbas, AHRC), The Environment and Human Rights (Usec. Ipat Luna, Department of Environment), Peasant Farms Section and Agrarian Reform, Human Trafficking – Modern Day Slavery (Atty. Vida Verzosa, International Justice Mission), Women’s Rights and Gender Sensitivity (Atty. Nayie Caga-ana, Urduja-AHRC), Indigenous Peoples’ Rights (Atty. Ma. Vicenta De Guzman, PANLIPI), Criminal Justice System (Atty. Iyok Abitria, HLFA), and Justice Reform in the Philippines  – Hustisya Natin (Atty. Tonet Ramos, Alternative Law Group).

Atty. Ma. Vicenta De Guzman’s introduction to Indigenous Peoples rights in the Philippines and the organization PANLIPI demonstrated the importance of providing paralegal trainings to Indigenous and other rural communities. In particular, PANLIPI supports and empowers indigenous communities to gain control of their Ancestral Domain and maintain their self-determination. These forms of training provide community members with the tools required to advocate for their rights and understand the legal framework which effects their rights. Each presentation contributed to unpacking the concept of alternative lawyering in the Philippines and how this form of legal practice creates valuable social networks and empowers people to advocate for their rights. The immersion experience as well as the internship placement will be carried by the students throughout their professional career regardless of what legal stream they decide to follow – as attested to by past interns and the AHRC team.

[1] Training Manual for Paralegals, A publication of the Ateneo Human Rights Center (2010), p. 101.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid at 6.
[6] Ibid.
[7] Ibid at 8.

Science Fiction and Empiricism: On Imagining and Measuring a Better Future

Greenberg AnastasiaBy Anastasia Greenberg

Hanging unassumingly on a wall in the hallway that divides the Research Department from several other departments at One Earth Future Foundation (OEF) is a framed version of OEF’s Institutional Logic Framework: a manifesto followed by a sort of “ten commandments” listing the organization’s core values. This mundane framed text is sandwiched between walls that are adorned with large colourful emotionally provoking photographs taken across several countries in sub-Saharan Africa – quite the juxtaposition. While OEF staff seem to pay little attention to this moral code passed down to them by the Board of Directors; the upper management, on the other hand, seem to taut these phrases in an almost cult-like fashion at every staff meeting. One of these “commandments” – my personal favourite – is: “we are relentlessly empirical”. OEF clearly has a penchant for hard data and quantitative research methodology, which is why I was surprised to walk into a development talk one day at the office led by a PhD graduate who has decided to venture outside the academic lines by pursuing science fiction.

The project that was being presented, led by Dr. Andrew Merrie, is called Radical Ocean Futures. Using a method called “science fiction prototyping”, Merrie wrote a compilation of four science fiction stories to depict four different future scenarios for the world’s oceans, integrating some predictions loosely based on scientific research on ocean health. Two of the scenarios were dystopian. In one, ocean life has died off and humanity with it, leaving behind a sole surviving fisherman. In the other, a complete industrialization of the oceans has taken place. The last two scenarios are more utopian: humanity survives sea level rise by living in underwater cities, and the most favorable scenario is that in which humanity succeeds at a sustainable ocean future, featuring robots responsible for cleaning and upkeep of ocean health. What’s more, is that Merrie also commissioned a high-profile concept artist, Simon Stålenhag, to create incredible digital artworks to represent each sci-fi scenario.

While I found all of this engaging and entertaining from an artistic point of view, what really struck me was the audience that Merrie was able to target outside of sci-fi nerds. News outlets picked up the story immediately. Most impressively, Merrie was recently invited to present this work at the United Nations Ocean Conference, with Stålenhag’s artwork displayed throughout the event. Academics from the environmental sciences have been warning us about the grave realities of climate change effects on the oceans for decades, but apparently science fiction and art were the channels that could get policymakers to tune in.

This got me thinking about the word “impact”: what does it mean and how do we measure it? In a world that is increasingly data-driven, OEF is feeling that thirst for empiricism. While the Radical Oceans project is only loosely based on actual empirical information, OEF was drawn by the perceived “impact” that it was having on their stakeholders of interest. OEF has been undergoing some major changes to their organizational structure and mandate, and a major part of this change will be to solidify a way to measure the organization’s social impact.

Coming from an academic background, the word “impact” and its measurement has always meant something very specific to me. A scientist’s “impact” is measured by a very precise formula that takes into account the number of publications that one has and the number of citations that each of those publications has accumulated. This essentially measures how influential one’s work has been on the scientific community, but not necessarily beyond those academic boarders.

My connotation of the word “impact” has really started to evolve. OEF is a multifaceted NGO that aims not only to have others cite its research and policy reports but to actively facilitate peaceful conflict resolution in fragile states. Impact in this realm is really hard to measure. However, OEF is also “relentlessly empirical” and it is difficult to pride themselves in this regard without any tangible measure of their impact on peace.

Peace is not only difficult to measure, but even to define. At staff meetings, conversations constantly revolve around concepts of “negative” versus “positive” peace and which of these OEF should concern themselves with. Negative peace is the absence of violence and war. This is relatively simple to measure, the so called “body bag count” will do. The Global Peace Index (GPI) is a sophisticated attempt by the Institute for Economics and Peace to measure such negative peace. The GPI gives a peacefulness score for every country based on several factors including: numbers of internal and international violent conflicts that a country is involved in, levels of violent crime, political instability, as well as military expenditure. The GPI is updated on an annual basis so that progress over time can be assessed. Of course, even measuring such negative peace statistics accurately, as the GPI tries to do, is just the first step in figuring out whether a small organization like OEF has any causal role in the measured progress towards peace.

Positive peace on the other hand, deals with structural violence, issues such as: poverty, discrimination, inequality and other social injustices. Negative peace is reactive, while positive peace is proactive. While even measures of negative peace can be highly contentious, positive peace is substantially more difficult to define and measure. Nevertheless, the Positive Peace Index tries to do just that by considering the effectiveness of government institutions, levels of corruption, freedom of information, and so forth.

Although such complex information is aggregated into numbers, the data tells a rich story much like those sci-fi scenarios. These data come with their own artistic depictions, albeit less awe-inspiring. The picture below shows that the PPI has been improving on average across countries for the past decade, with about three quarters of all countries showing an improvement in positive peace. These data seem to point towards the possibility of a more utopian future scenario. Quantifying peace in such a manner has always been politically controversial, especially when dealing with governments of countries who score low on these “Western” standards of peace. This is a legitimate criticism given how many facets of life an index such as the PPI will inevitably omit.

Given that peace is such an elusive concept, is it futile to attempt to measure it and the social impact of NGOs like OEF? As Steve Killelea, founder of the Institute for Economics and Peace, has said: “If you don’t measure peace, how can you understand it?“. Thinking back to science fiction prototyping in the context of the future of peacebuilding, I can imagine a dystopian scenario in which we have given up hope on measuring peace and the world has spiraled into perpetual violent conflict. On the utopian end of the spectrum, a meaningful way of measuring social impact and peace has become a reality. In this future, we can even diagnose early signs of political conflict and initiate the right preventive measures – a “positive peace” approach. To get to this utopia, we need an empirical and critical approach that challenges the meaning of impact, peace, and a deep understanding of the data that shed light on these issues. And maybe a little art can help too.

 

The Exclusion of Women’s Interests in India’s Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013

Alexa FranczakBy Alexa Franczak

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act (LARR), 2013 came into force on January 2014, replacing the Land Acquisition Act, 1894. Meant as a reforming piece of national legislation to replace other laws on land acquisition within India, the Act standardized compensation in cases of land acquisition and created the legal obligation of rehabilitation and resettlement. The preliminary provision of the Act states that “the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post-acquisition social and economic status and for matters connected therewith or incidental thereto.” However, the actual provisions of the LARR 2013, and the subsequent amendment ordinances and bills modifying the Act, indicate that this is not likely to be the outcome for most women displaced by land acquisition. Naturally, ‘women’ are not a homogenous group and not all of these points reflect the actual realities of all Indian women equally. Nevertheless, the lack of recognition of certain women’s realities creates the potential to further marginalize women in cases of land acquisition, and risks to disproportionately exclude women from the benefits and rights that the LARR is meant to confer.

Control and legal ownership over property remains crucial to women’s empowerment. Evidently, land acquisition undermines the accumulation and retention of assets. However, the consequences of landlessness and lack of ownership over immovable property for women seem to be especially dire. Bina Agarwal’s work on women and property in Asia has well documented the link between land ownership for women and security: land ownership guarantees a source of economic support in cases of desertion, widowhood, or divorce. Property ownership is hypothesized to increase a woman’s sense of self-worth and reduce her tolerance to violence, as it increases a woman’s bargaining power.[1] In contrast, lack of ownership increases women’s vulnerability and dependence on others who are propertied, thus linking women’s property ownership to security and independence. The LARR offers compensation based on a market formula without any guarantee of property to be granted in equivalence, which undermines the interests of women in retaining property. The compensation sums are not sufficient to generate security for displaced women in the same manner as property. Asset ownership and control rights are more beneficial to women’s empowerment than other alternatives.[2] The link between women’s wellbeing and ownership of property should not be ignored in cases of land acquisition, as acquisition evidently removes the security that comes with property ownership.

The LARR is blind to the realities of most women, as the compensation awards and the rehabilitation and resettlement allowances offer the most to individual land owners. This implicitly excludes women from receiving any right or benefit in the process of land acquisition due to women’s historical and ongoing exclusion from land ownership, especially in cases of succession. Even with legislative reforms meant to strengthen women’s claim and retention of property rights, the reality is that very few women hold property rights.[3] These legal guarantees of women’s right to property are often not enforced privately or publically, especially in cases of succession. Personal, religious, and cultural customs and practices continue to deny women ownership rights, inhibiting the accumulation of property. It is often the case that women do not assert their rights, or are made to sign away their legal rights to land to avoid family conflict.[4] Accordingly, women are disproportionately excluded from receiving compensation in cases of land acquisition, since the LARR Act emphasizes compensation solely for the legal owner or tenant of the acquired land.

The Act entitles non-land-owning stakeholders allowances in the rehabilitation and resettlement provisions if they qualify, but these entitlements are defined in a way which creates the potential to disproportionately exclude women. The award provisions do not reflect the economic and employment realities for most women in the labour market due to the prevalent underestimation of women’s contributions to household incomes. Women’s contribution to income generation remains undervalued as it is often seen as an extension of domestic work, limiting the recognition of the “economically gainful nature of women’s work”.[5] Women workers tend to predominate in difficult to measure informal sectors, such as unpaid family work, house work, and subsidence work, thus making it difficult to quantify and incorporate women’s work.[6] This holds especially true for women in the agricultural sector, which accounts for the majority of rural women’s work and continues to increase. Despite this, women’s roles are not fully recognized and women are often considered marginal workers on family farms and enterprises.[7] Figures indicate that above 40% of the rural female workforce in India is unpaid for their work, and is primarily engaged in agriculture.[8] Since women’s work is often not a source of income or is undervalued as one, many women will be excluded from the entitlements since they are not recognized by the LARR as earning a livelihood, which is a necessary requirement for qualifying. Additionally, the nature of women’s labour might result in acquisition officials not qualifying women’s work as that which is affected by acquisition. In order to include women interests, the LARR must expand the definition of affected family to reflect the reality of women’s work, especially the fact that women’s work is often unpaid.

For women who do earn a livelihood, the award provisions do not go far enough to ensure the rehabilitation of women impacted by land acquisition. Land acquisition creates joblessness as it impacts employment provided from land and reduces employment generation, as the jobs provided from the acquired land, like agriculture, are not replaced. The LARR offers those whose livelihoods are affected an annuity or payout per family, or a guarantee of employment to only one person in the family unit. These award entitlements overlook the impact on women’s livelihoods as it does not consider multi-person households that are dependent on the economic contributions of various members, especially if only one member of a multi-person household is guaranteed employment post-acquisition. Studies of post-acquisition communities found a gender bias in situations where employment is only offered to one family member, as the employment opportunity will go to the most eligible male in the family unless the family is female headed.[9] Additionally, the LARR rehabilitation and resettlement schemes to not focus enough on the impacts of acquisition for agricultural workers, especially as the land depended on is no longer available. Women still disproportionately rely on rural agriculture for employment, and women with agricultural skills face difficulty in transferring those skills to new industries, limiting their mobility into non-agricultural work post-acquisition.[10] Women will not only be deprived of the livelihood they depended on, but will also not be able to obtain employment post-acquisition. Land acquisition impacts the livelihood of women, yet the LARR does not seem to recognize the effects of acquisition or the burden of unemployment for women.

[1] Pradeep Panda and Bina Agarwal, “Marital Violence, Human Development and Women’s Property Status in India,” World Development 33, no. 5 (2005): 842.

[2] Govind Kelkar, “Gender and Productive Assets: Implications for Women’s Economic Security and Productivity,” Economic and Political Weekly 46, no. 23 (2011): 63-65.

[3] Rahul Lahoti, Sucharita J Y, and Hema Swaminathan, “Not in Her Name: Women’s Property Ownership in India,” Economic and Political Weekly 51, no. 5 (2016): 17-19.

[4] N.C. Saxena, N.C., “Land, Livestock and the Rights of Women in Rural India,” in Women, Land and Power in Asia, eds. Govind Kelkar and Maithreyi Krishnaraj (New Delhi: Routledge, 2013), 241, 246.

[5] Ibid, 226.

[6] Chaya Degaonkar, and Gills, Dong-Sook, “The Economic Reform and feminisation of Labour in Agriculture” in Women and Work in Globalising Asia, eds. Dong Sook Gills and Piper Nicola (London: Routledge, 2002), 74.

[7] Swarna S.Vepa, “Feminisation of Agriculture and Marginalization of Their Economic Stake,” Economic and Political Weekly 40, no.25: (2005): 2563-2564.

[8] Indrani Mazumdar, and N. Neetha, “Gender Dimensions: Employment Trends in India, 1996-94 to 2009-10,” Economic and Political Weekly 46, no. 43 (2011): 120.

[9] Lancy Lobo and Shashikant Kumar, Land Acquisition, Displacement and Resettlement in Gujarat 1947-2004 (New Delhi: Sage, 2009), 222; S. Parasuraman, “Economic Marginalisation of Peasants and Fishermen Due to Urban Expansion: The JNP Project of New Bombay, India,” The Pakistan Development Review 34, no 2 (1995): 133.

[10] Nisha Srivastava and Ravi Srivastava, “Women, Work, and Employment Outcomes in Rural India,” Economic and Political Weekly 45, no 28 (2010): 52-53.

A truly international evening

By: Nathalie Laflamme

It’s quite hard to describe the IHRTP to someone who hasn’t experienced it themselves. At least, that’s what I told myself as I began writing this blog post.

The three weeks of the IHRTP—short for International Human Rights Training Program, which has been held by Equitas for the last 38 years—was a blur. A blur of hectic logistical arrangements, of endless tasks, of fascinating, eye-opening conversations with human rights defenders from across the globe, and sometimes—like during the International Evening—a literal blur of colourful traditional garb, dancing along to music from the opposite side of the world.

To give you a glimpse into my experience working for Equitas, I thought I would first describe what I felt was the most memorable moment of the IHRTP: the International Evening, which was held on June 15th.. On this night, participants, facilitators, Equitas staff and interns were encouraged to throw on their best traditional clothing and come to the cafeteria at John Abbott College for an evening packed with flavour and entertainment.

The evening was—to say the least—a blast. While the days spent at John Abbott College (where the IHRTP is held) had been extremely busy, and while I had had the chance to share a few sporadic meals and conversations with participants, the full impact of the program only became apparent to me when I stepped through the doors of the cafeteria during the International Evening.

For you to grasp how impressive this event was, I feel that I should first explain what the IHRTP is (note that I will speak more about my tasks and responsibilities as an Education Intern in my second blog post). The IHRTP is a three-week intensive program which is open to human rights educators from civil society organizations, regional and national institutions, and government agencies across the globe. During the program, participants mainly work in small, diverse groups, and work to transform their working methods and develop tools to increase the impact of their work. The program uses a participatory approach, allowing human rights educators to build capacities and skills by learning from one another—participants are both the teachers and the students of the IHRTP.

So, as I stepped into the cafeteria that night, and as the colours of everyone’s clothing and the smell of the dozens of different, scrumptious international foods hit me, I really saw the beauty and power of the program for the first time. I was a little late for the event as I had driven one of the IHRTP’s Resource Persons back to the airport, and of course I had managed to get lost on my way back to the college. The Resource Person and I had shared a fascinating conversation in the car involving a comparison of the legal system in Canada and Egypt, as well as a discussion concerning Canada’s Aboriginal Peoples. It truly was enlightening. But, I digress. Because of my lateness that night, I got to step into the bustling cafeteria on my own, once the event had already begun, and got to take it in in all its glory.

The Intern and Volunteer table on International Evening. Photo by Michael Cooper/Equitas.

I watched as groups of participants from the same regions took the stage after our delicious meal to perform to their favourite local songs and give us a glimpse into their worlds. I remember thinking, as I watched an incredibly pregnant participant from Haiti dance with gusto, her stomach bare, surrounded by other Haitian participants (one of whom was wearing the Haitian flag as a cape) dancing beautifully, that this truly was a unique experience.

After the participants had all performed, we sang “Happy Birthday” to Equitas—in both French and English, of course—as this year marks the organization’s 50th anniversary. After that, everyone got on the dance floor. Never in my life have I been surrounded by so many amazing dancers; it was so beautiful. There was something so unique about seeing so many people from such different places, with such different lives, come together. That night, I also learned that dancing in a circle is apparently an international social norm.

Dancing after dinner. (That’s me, in the light pink dress). Photo by Gabrielle Vendette/Equitas.

I begged AJ, the Logistics Intern who was in charge of the music that night, to add “Cotton Eye Joe” by the Rednex to the song cue. He agreed, and I somehow managed to teach that silly line dance to at least 50 different people from all over the globe. I remember dancing so enthusiastically that my right leg cramped, but I powered through. I was smiling so hard my cheeks almost cramped, too.

I am the only intern participating McGill’s International Human Rights Internships Program (IHRIP) who stayed in Montreal this summer. And yet, during that evening, I wasn’t in Montreal. I was in Morocco, in Colombia, in the Democratic Republic of the Congo, in India, in the Philippines… I was everywhere, caught in an international blur. I hope this memory stays with me forever.

More dancing during Equitas’s International Evening. Photo by Gabrielle Vendette/Equitas.

Defining Equality: Namibia’s Supreme Court and the Rights of Persons with Disabilities

By Kevin Lee Pinkoski

Equality in Namibia and the Rights of Persons with Disabilities:

A young country – with a new constitution – needs an active judiciary that takes every opportunity to develop a more nuanced understanding of its constitutional principles. This is the context of Namibia, a country that, in 1990, won independence from South Africa after years of racial division implemented by apartheid, and, in the same year, adopted a new constitution. But many terms in this new constitution have yet to be comprehensively nuanced and defined through jurisprudence. As the case Alfred Mew Visser v Minister of Finance & 3 Others shows, Namibia’s judiciary continues to miss opportunities to describe both the nuances of equality as the term is present in the constitution and its relationship to the rights of persons with disability.

The nuance that is lacking from Namibian jurisprudence on equality is if the term is only limited to formal equality, where the law treats all individuals equally, or if it includes substantive equality, where the law recognizes individual differences in order to make everyone equal. Namibia’s constitution prioritizes equality, yet Namibia’s Supreme Court has failed to provide an accurate explanation of what is meant by the term in the constitution — if it is limited to just formal equality, or if it can be expanded to substantive equality. The judiciary must play an active role in addressing these ambiguities. Consequently, disabled individuals in Namibia are left without true equality.

Alfred Mew Visser v Minister of Finance & 3 Others:

The Alfred Mew Visser case is about the rights of persons with disabilities. Alfred Visser was in a severe car accident and, as a result of his injuries, he was blinded in both his eyes. Because of Namibia’s no fault insurance scheme, he was awarded damages according to The Motor Vehicles Accident FundThe Fund sets caps for damages, and Alfred Visser challenged these caps under the claim that they do not adequately provide the financial support necessary for him to live with a permanent disability. The Supreme Court did not find the case in his favour because of the financial implications of going beyond the caps established in The Fund.

Alfred Mew Visser characterizes a clear problem in the Namibian judiciary; the term equality in the Namibian constitution has not been accurately defined by Namibian jurisprudence. Yet the Supreme Court’s response inAlfred Mew Visser, ignorant of this problem, focuses only on the financial limitations of The Motor Vehicles Accident Fund. My criticism is that, regardless of the outcome of the case, the Supreme Court needs to actively seek out opportunities to elaborate and clarify Namibia’s constitutional principles. Because of this, the Supreme Court’s judgment in Alfred Mew Visser is a missed opportunity to provide a nuanced understanding of what is meant by equality – this is detrimental to Namibia’s most vulnerable populations.

Equality in the Namibian Constitution:

Strong memories of the heroes of the liberation struggle, such as Toivo ya Toivo, continue to inspire Namibians like Fazilla to fight for equality.

Reflective of years of apartheid – when inequality between race was implemented by law – Namibia’s new constitution prioritizes equality for all its citizens. The preamble to the constitution sets this mandate, affirming that “the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace.” Namibia, as a new country, founded itself on the principle of equality.

Namibia’s standard of equal rights for all is expanded upon in Art. 8: Human Dignity and Art. 10: Equality and Freedom from Discrimination of the Constitution. Art.8(1) states: “The dignity of all persons shall be inviolable”, and Art. 8(2)(a) elaborates: “In any judicial proceedings… before any organ of the State… respect for human dignity shall be guaranteed.” Art.10(1) reads: “All persons shall be equal before the law,” and Art.10(2) continues: “No persons may be discriminated against on grounds of sex, race, colour, ethnic origin, religion, creed or social or social status.”

The constitution and current government policy indicate an ambiguity between formal and substantive equality in Namibia. While Art. 10(1) establishes the terms of formal equality before the law, Art. 10(2) creates the potential to use the law to make all individuals equal through substantive equality.  Art 10(2) indicates the potential for substantive equality as it would be discrimination not to make individuals equal who suffer under the prohibited grounds for discrimination in Art 10(2). The emphasis on equality in both the preamble of the constitution and in Art. 8 show Namibia’s prioritization of equality for anyone within Namibia’s borders. Furthermore, Namibia has embarked on clear projects to create substantive equality for marginalized populations, such as economic empowerment initiatives and gender equality programs. There is a clear ambiguity in what is meant by equality that must be addressed by Namibia’s Supreme Court.

Neither Art. 8 nor Art. 10 provide a nuanced understanding of what is meant by equality. Because of this, Namibia’s lower courts have been limited to an understanding of equality that only evaluates the formal equality of all individuals before the law, not the substantive equality necessary to make all individuals equal. Furthermore, as Alfred Mew Visser shows, the Supreme Court has failed to take any opportunity to define any nuances to what is meant by equality as it is presented in the Namibian constitution. Because of this, Namibia has yet to create an environment of true equality for persons with disabilities.

Disability in Namibia and Alfred Mew Visser:

Although empty on the weekend, the Katatura Disability Plaza houses numerous organizations that promote equality for people with disabilities.

Namibian law defines disability as “a physical, mental or sensory impairment that alone, or in combination with social or environmental barriers, affects the ability of the person concerned to take part in education, vocational, or recreational activities.” This definition is elaborated upon to include the “loss or limitation of opportunities to take part in the normal life of the community on equal level with others due to physical or social barriers.”

The Namibian constitution does not list disability as a prohibited ground for discrimination in Art. 10(2). Thus, for disability to be adequately recognized or discussed in terms of equality, the Namibian judiciary must establish that disability is included under the prohibited grounds for discrimination in Art. 10(2).

Disability has a clear consequence on an individual’s ability to participate in society, it has a detrimental effect on the following grounds prohibited by Art. 10(2) of the constitution: social status, economic opportunity, and personal prosperity. The statistics are clear: 17.7% of urban disable persons do not attend school, 82.3% of rural disabled persons do not attend school, 42.5% of disabled persons work in agriculture and fishers, with 14.6% in elementary occupations. 70% of disabled persons live in homes without a mortgage. The reality is explicit – being disabled in Namibia is a limit on the potential of an individual to achieve success and prosperity.

In the example of Alfred Mew Visser, Alfred Visser has suffered a permanent disability because of the accident: he is blind in both eyes; he has a physical impairment that will impede his potential to participate in everyday activities and in work opportunities; he will need to learn a new system of reading. He is likely to be to be limited, as Art 10(2) of the constitution explains, to a “social status” because of his disability.

Art. 8 and Art. 10 of the Namibian constitution ensure a conducive environment to the full and equal participation for all in society, including those with disabilities. But, as was previously alluded to, because neither Art. 8 nor Art. 10 provide a comprehensive definition of what is implied by equality, the Supreme Court is required to give such an interpretation. The Alfred Mew Visser case is a clear example of a missed opportunity to give a more nuanced explanation of what is meant by equality, a missed opportunity that will be detrimental to disabled people – one of Namibia’s most vulnerable populations.

Formal Equality – Equality as applied by the Supreme Court:

Namibia’s clear wealth disparity, apparent in the village of Hoachana, is continually being addressed in the pursuit of equality.

Namibian jurisprudence has yet to provide a nuanced understanding of what is meant by equality in the Namibian constitution. The problem is that, because of the limited wording of the Namibian constitution, there is no need for courts to expand beyond an understanding of equality that is restricted to formal equality. Formal equality is established only by equality before the law. It applies blind rules to every situation, no matter what social differences may be involved. If the Namibian constitution ensures only formal equality, the Namibian Supreme Court should define that distinction. While it is possible to develop the language of formal equality in Alfred Mew Visser, it is important to recognize that the case turns on the financial limitations of The Motor Vehicle Accidents Fund, and not the issue of equality.

In Alfred Mew Visser, the court employs a view of formal equality before the law, as all claimants are held to the same limits of compensation, regardless of either their individual characteristics or the consequences of an accident. Alfred Visser’s disability can only be taken into account provided it falls under the limits of the caps established in The Motor Vehicle Accidents Fund, and it cannot be adjusted to take into account the particular needs of certain claims. The caps employ the same legal equality to all — the same formal equality before the law — and thus the court can resolve that “No distinction is made between claimants at all” since “all claimants are in the same position when it comes to the capping of their claims and are thus equal before the law.” No differentiation is made between individuals and their needs. If this is what is meant by equality in the Namibian constitution, the Supreme Court should define equality in this way in its decision.

Formal equality could, however, provide the means to address the necessary compensation required to ensure equality for disabled individuals. Since, to establish formal equality, the court adheres to “equality before the law,” it is the actual law itself that would have to change. The Motor Vehicle Accidents Fund would have to be amended to provide for a recalculation of damages for disability, for injuries that cannot be recovered from and that requires an individual to live their life in a different way. In this way, the court could still employ formal equality before the law, but the law itself would have to be expanded to provide for the necessary compensation to an individual who has been affected to a new “social status” (as Art. 10(2) of the constitution establishes) as a result of an accident. The Namibian constitution could imply formal equality in this way, but the distinction would have to be made by the Supreme Court.

The Potential for Substantive Equality in Namibia:

The Katatura Hospital is one of many public hospitals that provides medical services to Namibians.

In Alfred Mew Visser, substantive equality would imply that, because Visser has been placed in a different social status as a result of the disability incurred in the accident, the court could employ a definition of equality that allows for increased compensation. While the court establishes that The Motor Vehicle Fund ensures that “equally positioned persons are treated equally”, it fails to consider that some individuals will require more support in order to be treated equally. The reality is, as substantive equality reminds us, that the results of an accident do not leave all individuals “equal”, and that some, especially those with long term disabilities, will require more compensation. If the court had chosen to establish substantive equality as a part of the Constitution’s definition of equality, the court would allow for the law to be adapted to Alfred Visser’s specific case.

Furthermore, the court would establish the necessary precedent to employ substantive equality when necessary to ensure that the law can be adapted to provide what is needed for any individual to achieve equality. This is the missed opportunity of the Supreme Court, they failed to recognize the reality that equality before the law does not ensure that the law has equal effects on all individuals. Consequently, in order for the law to allow that all individuals can achieve equality as a result of the law, a substantive understanding of equality should be employed. Here, the Supreme Court has failed to provide for a more nuanced, and more just, understanding of equality that takes into account an individual’s unique needs. Alfred Mew Visser is thus a missed opportunity to define equality.

Conclusion:

Namibians, especially Namibia’s most vulnerable population, must again wait for the Supreme Court to develop a nuanced understanding of equality. Namibians are left with ambiguity as to if equality goes beyond formal equality to address substantive equality, thus allowing for the prohibitions on discrimination in Art. 10(2) to be extended to unlisted ground. It is, as Art. 10(1) reminds us, that “all persons shall be equal before the law” – so why stop short of protecting Namibia’s vulnerable populations?

The Supreme Court should be capable of providing the necessary jurisprudence to clarify and develop the constitution. The Supreme Court cannot be limited by state resources or policy in its decisions, it must be capable of balancing these limitations with the necessity of equality. The nuances in the term equality have yet to be defined by Namibia’s Supreme Court, and the Court continues to miss opportunities to add the necessary nuances. Defining these nuances is, after all, the role of the judiciary.

 

Criminal Justice in Cambodia: A Corridor of Illusions

Rintoul AndrewBy: Andrew Rintoul

Time and again, the Cambodian criminal justice system has proven to be an arbitrary construct built and operated at the expense of the many. Against this illusory backdrop of legitimacy resides human beings, individuals with loved ones and lives awaiting them outside prison walls. This notion thundered loudly as Tep Vanny, a mother and a daughter, was asked by the defence lawyer about the status of her family at the Court of Appeal in Phnom Penh today. The ensuing display of emotion was difficult to behold without feeling a tremendous sense of remorse and anger at the system responsible.

Tep Vanny has been detained for nearly a year, since her arrest on 15 August 2016. In February 2017, she was convicted of “intentional violence with aggravating circumstances” at the Phnom Penh Court of First Instance. The charges were based on allegations of violence against para-police during a 2013 protest near the home of the Prime Minister. During that protest, both she and numerous other protestors suffered serious injuries at the hands of the authorities. Her sentence of two-and-a-half-years’ imprisonment and US$3500 compensation to the plaintiffs remains, with the verdict from today’s appeal to be announced on 8 August 2017.

Court of Appeal, Phnom Penh

Tep Vanny is not alone. There are many who share similar experiences within the prevailing criminal justice system in Cambodia. In today’s appeal, as was the case in her first instance trial earlier this year, the burden of proof bar was non-existent. With plaintiffs and prosecution witnesses absent, there was no room for cross-examination. The submitted statements of these individuals, read aloud by the court clerk, were eerily similar and corroborated seamlessly one another. However, none presented any shred of credible evidence to prove the defendant’s guilt beyond reasonable doubt. And yet, in coming to his verdict, the presiding judge will undoubtedly consider such proceedings to have been sufficiently legitimate. In the trials I have witnessed over the past months and in the numerous cases I have examined, painfully few have demonstrated any semblance of due process or a presumption of innocence. Her case is not rare; experiences with violations to enshrined fair trial rights are shared across the board.

There are also many who share Tep Vanny’s story, those who have had their land violently removed from under their feet and those who have joined in the struggle for justice. In 2014, more than half a million people in Cambodia had been affected by land grabs since 2000, with numbers continuing to grow since then. Tep Vanny was once a resident of Boeung Kak Lake, Phnom Penh’s largest lake at the time. In 2007, the municipality of Phnom Penh announced a 99-year lease agreement with Shukaku Inc., a private development firm. The agreement, which appeared to violate multiple Cambodian laws and international obligations, gave the firm jurisdiction to fill in the lake and to develop it as a tourist destination, in exchange for US$79 million. The ensuing increase in flooding and the destruction of homes led to thousands of evictions, with only a small minority of people willingly accepting meagre compensation and many being forcibly removed and given nothing.

This struggle led to the emergence of an incredibly brave group of Boeung Kak Lake land activists who have been taking action against the authorities since. Tep Vanny has become one of the most prominent and outspoken of these activists, along with a number of other women, including 78-year old Nget Khun. I have had the privilege of speaking with Nget Khun on multiple occasions and visited her at Boeung Kak Lake last month to discuss development in the country. Speaking in Khmer, she said, “We do not reject development, but development should provide appropriate compensation and homes and family happiness.” As she was a witness for the defence in today’s appeal, her sentiment rang clearly in my mind. The continued imprisonment of an outspoken mother on spurious charges for defending her illegitimately assaulted community is not development but utter decline and injustice.

A corridor of illusions

To reiterate, Tep Vanny is not alone. She shares with many others her suffered abuses at the hands of the Cambodian criminal justice system and she shares her story with the hundreds of thousands of individuals who have been affected by unjust land grabs and evictions. Today, her usually isolated post-trial march down the courthouse halls was done with arms around her two children, who were finally allowed into the courtroom as the two-and-a-half-hour appeal came to a close. However, to ensure she did not forget where she was going and who she had upset, eight officers surrounded them, escorting her quickly away from her family into the police vehicle to take her far from home.

The Story and Relevance of Christine de Pizan (1364 – 1430)

By Monika Erzsebet Berenyi

The narratives, movements, texts and happening of the past draw us inextricably into the present, and it would be careless and limiting to conceptualize the parameters and content of the women, peace, and security agenda, so expressed by UN Security Council Resolution 1325, without revisiting the lengthy history of its progenitors. The efforts, achievements and struggles of those who fought for and forged the very ideas upon which the contemporary policy stands, continue to provide us with guidance, inspiration, and reference points – which mirror the path of our past whilst reflecting the present.

In this context, I return to the medieval era – France to be precise, and draw from the story of Christine de Pizan – a writer, historiographer, and activist, whose cunning wisdom, words and legacy – cumulatively, a representative of a watershed moment in women’s history. For those unfamiliar with de Pizan, her writings were instrumental for enabling the concept of equality for women in medieval France, and her works are considered to be among the earliest feminist writings, inclusive of novels, biography, autobiography, along with political, literary and social commentary. Here it is also important to highlight that the work of de Pizan should also be appreciated within a spectrum of other great medieval women writers, activists, warriors, and leaders – whose courage and work continues to anchor many a discussion regarding women’s rights and equality. I recount the words and actions of Christine de Pizan, thus, in company with the likes of Marie de France, Eleanor of Aquitaine, Margery Kemp, Trota of Salerno, Hildegarde of Bingen, the women troubadours, and many others. The imperative importance of and appreciation for the stories, actions and creativity of medieval women are a source of truth and inspiration to me, – which have also come to illuminate my “contemporary” workspace at Our Secure Future (One Earth Future Foundation). Encouraged to transcend space and time, from the happenings and context of medieval France to the present foothills of Boulder County, I count myself fortunate to be surrounded by individuals, who bear a consciousness and appreciation for the past. For, as history continues to show, it is our predecessors who set the tone for bringing life, energy and movement into the formation and dissemination of new policies. Thus, at Our Secure Future, we remember the story of Christine de Pizan while we face and grapple with the continued challenges of achieving equality and peacebuilding for a better future.

Christine de Pizan was born in Venice and was raised at court in Paris. In 1380, the young Christine de Pizan married Etienne du Castel – a nobleman from Picardy, who supported her passion for education, writing and advocacy. Widowed during her early 20s, she chose to continue her passion and talent for writing, supporting herself and three children, on the fruits of her labour. In sum, she may be understood, or viewed, as one of the first women in history, to have lived solely from creative endeavour.

I cite here two works, which allow me to transcend the past with the present. In The Book of the City of Ladies (Le Livre de la Cité des Dames), completed in 1405, the social importance and imperative of women’s equality in the context of relationships and partnerships is exemplified both anecdotally and metaphorically. A deeper reading of this work, or perhaps, reading between the lines, brings the notion of human security to mind, such that only through equality, can networks of sustainable and lasting peace, for society, be achieved and fortified. In this respect, I am encouraged to consider the relatively of the roots of de Pizan’s arguments, which highlight women’s independence while advocating for uniform opportunities and equal rights through a subtle and powerful approach. With clarity of vision for a better present and future, de Pizan showed how equal treatment and fairness, in everyday contexts, can improve the ebb and flow of life of equality of all. In this respect, de Pizan used the power of the written word at the intersection of the quotidian and Christian morality, coupled with a stylized ability to deploy rhetorical strategy, to illuminate and challenge societal behaviour and sources of women’s oppression. In sum, her ability to deliver a message based in gender equality, so many centuries ago, was both insightful and intuitive – and is one which echoes her visionary ability to delineate the critical role women play in the greater process of conflict prevention, conflict resolution and peacebuilding.

I also cite the work The Book of Deeds of Arms and of Chivalry (Le Livre des faits d’armes et de chevalerie), completed by 1410. This book may be conceptualized as a strategic resource for its time, as it provided a vernacular study of military strategy and warfare, coupled with a discussion on the meaning of “just” war. The work is particularly important for the perspective it provides, suggesting arguments for why and how women could be equally knowledgeable and capable as men, to the discussion of war and conflict prevention, and to the facilitation of counsel for that matter.

To conclude, Christine de Pizan conveyed her opinions with subtlety, through the medium of the written word, supported by the framework of the illuminated manuscript. In the twenty-first century, deconstructing the lessons de Pizan chose to express, the issues she addressed, and the mechanism within which she deployed her message, affirm the breadth and depth of the peace, which informed her approach to penetrating the constraints and rigidity of patriarchal society. When considering the power of documentary media, her work and integrity of character, were groundbreaking for their time, as they sounded the alarm – by way of text, image, and action with respect to the hazards, which inequality poses to society.

I am humbled by having been able to learn about the story of Christine de Pizan, by reconnecting the meaning, integrity, and relativity of her story to the work, which informs my days at Our Secure Future – affirming that justice remains a continuous work in progress.

Image from Le Livre de la Cité des dames (Christine de Pizan reading in her study). Copyright of the Bibliothèque de Genève

Following the Herd

Matyas DavidBy David Matyas

It’s a bumpy ride from Rankin to Chesterfield Inlet. A short 15 minute hop and the plane flies low. As we take off, the pilot announces that the caribou herd is off the right side. I’m sat on the left and I crane my neck. I reach for my seatbelt but as the plane pitches and I think better of it. They’re down there all right. A herd I’m told is 100,000 strong. But the hoof beats are drowned by the turbo-prop engines and my vision’s blocked by the passengers across the aisle. Over the week this story repeats itself. Rumours and sightings. But as mighty as the migration is alleged to be, I won’t manage to see the caribou.

I’m travelling to Baker Lake in the Kivalliq Region of Nunavut on the circuit court. It’s the only inland community in the Territory and sits close to the mouth of the Thelon River. Baker is about as close as you can get to the geographic centre of Canada.

For those in Montreal and Toronto who might describe “going north” to Sainte-Agathe or Huntsville, Baker Lake, at the longitudinal midpoint of the country, underscores this thinnest veneer of northern space that most Canadians occupy.

Like many communities in Nunavut, Baker Lake does not have a sitting judge or permanent courthouse. While some matters can be dealt with through teleconferences, others are served through a travelling ‘circuit court.’ Periodically, the crown and defence lawyers, court workers, clerks, translators and judge fly into communities to hold first appearances, preliminary hearings, trials or sentencings. Sometimes they even bring along a summer student, as is the case this week. It’s a migratory court that travels across the North from community to community and back again.

The days before the circuit are spent interviewing clients and meeting with the Crown. The judge and court party have not yet arrived and there is much work to prepare beforehand. Some of the individuals will be in jail by the end of the week. Others will have their matters dismissed.

Defence and crown sit to discuss those matters where a joint position may be possible and determine those issues where agreement will not be possible. Nerves and anticipation of what is to come.

In a break between meetings and research I visit the Jessie Oonark centre. The centre holds a printshop, jeweller’s studio, space for seamstresses and equipment for silk-screening.

I watch one seamstress repairing a hole in a high vis jacket. “We have an exclusive contract with the Meadowbank Mine and repair their clothing” says the gallery steward. Elsewhere, an elder is at a work station making earrings. They are shaped as Kamiks (traditional boots) and made from caribou antler. It is fine, detailed work. Her name is Martha Noah, one of Baker Lake’s accomplished artists and a collaborator of the renowned Simon Tookoome.

When the owners learn that we are in town with the circuit court they remember past court sessions, those rulings they’ve felt unfair or viewed as ill-suited for the community. Stories, nostalgia and the reservations for circuits past.

Without permanent structure, some circuit courts are held in school gymnasiums or community halls. The Baker circuit takes place in the conference room of a local lodge. As the court arrives the first day, the owner of the lodge, a man from the Shetland Islands brought to Northern Canada decades ago to work for the Hudson Bay Company, hangs flags behind the judge’s chair. A Canadian flag on one side of the judge. A Nunavut flag on the other. A room that was silent as a tundra field prepares for the rumble of matters to come.

The first morning of court is fast and busy. Lawyers and the court are trying to clear the easier matters from the docket early and push more complicated issues to latter times. Things get adjourned to the next day or the next circuit court dates in October or December. The room is full and the tempo of proceedings is high. The court workers scramble to track down those accused persons or witnesses who should be in court but have not yet appeared. The hall reverberates with the energy of the court, finally arrived.

Over the next afternoon and day, the court takes over that space. Grazing on legal matters as if it had always resided there. At times it feels like it will always be there. But, gradually it thins as cases are concluded and cleared from the docket.

By the morning of the third day only the stragglers remain. A few lingering matters cut off from the herd of issues before the court on previous days. Crippled cases impaired by missing witnesses or accused who did not show up.  Some of these may join the other cases on future circuits, others never make it past this court.

And then, just as suddenly as it arrived, the circuit court concludes. Those finished matters settling like trampled earth.

As the plane takes to the sky I look again for the caribou herd. From Baker to Chesterfield and onwards to Rankin Inlet, I cast my eyes over the landscape for signs of their passing. But the migration has past, gone with only the faintest of traces that it was ever there.

Close to Home


By Sarah Grace Ross

Unlike the majority of my fellow interns, my placement is not only within Canada, but in the very city where I was born: Toronto.

Despite having lived away from Toronto for a few years, it hasn’t taken long for me to become reacquainted with the city. From the neighbourhoods that my friends live in, to the best roti you can find, I know Toronto.

So with the start of my internship at the Canadian HIV/AIDS Legal Network, I was curious to find out what it would mean to work in human rights so close to home. My first realization during the internship was that while I know Toronto, I only know my Toronto, which is one version among millions. My internship was situated in a very different Toronto, one nested in the intersection of health and law, where I would be conducting legal research and policy advocacy for a segment of the population that, I came to realize, I didn’t know at all.

I had never met someone who was openly HIV+. Further, the only two public figures with HIV or AIDS that I could bring to mind were Freddy Mercury and Magic Johnson, a pretty short list. Fortunately, my first week at the Legal Network coincided with their annual symposium, where I met activists, mobilizers, lawyers, volunteers, and many individuals living with HIV. It became clear that while I would be working in a familiar city, everything about this job was going to feel new.

I was prepared to feel appalled at the human rights abuses of people living with HIV abroad, but as I began my first legal research projects, I realized there were many elements of living with HIV in Canada that were worse than I thought. After Russia and the United States, Canada is one of the most aggressive prosecutors of people living with HIV. Worse still, the criminal charge in non-disclosure cases is aggravated sexual assault, one of the most serious offences in the Criminal Code. Past interns have written thorough blogs about disclosure, which is when someone is legally required to disclose their HIV status prior to sexual activity. Advocates such as the Legal Network argue that the criminal justice response is heavy handed and does not reflect scientific advances regarding HIV transmission risks. Studies show that maintaining an undetectable viral load through HIV medication makes the risk of transmitting the virus effectively non-existent.

The publication’s cover photo is from the 1990 Montreal Sex Garage riots.

A few years ago, Canada’s criminal justice approach to disclosure sparked an underground, anonymous, grassroots publication titled How to Have Sex in a Police State. The publication surfaced online in 2015 and provides tips on how a person can access support from the health care system without triggering surveillance from the criminal justice system in the process. The fact that these two systems are interconnected is a huge problem; people should not have to choose between health care and privacy. Since violence, stigma, and discrimination are a reality for many people living with HIV, the publication encourages individuals to protect themselves from potential criminal charges, for example by having proof of their HIV status disclosure (such as screenshots of text messages) or even going so far as having a signed waiver for sexual partners.

There’s an often-used slogan that captures the connection between the health care and criminal justice systems: ‘take the test, risk arrest’. I heard the slogan mentioned a few times during the symposium last month, which made me suspect that the ‘police state’ described in the publication was still a reality for some people living with HIV today, even in large, arguably progressive cities like Toronto. ‘Take the test, risk arrest’ refers to the assumption that whoever is diagnosed with HIV first is presumed to have brought it into the relationship. This misattribution of infection is particularly stigmatizing for vulnerable women whose diagnosis may take place as a result of prenatal care or other routine visits to the doctor. The fear of partner retaliation upon discovering HIV or risking criminal charges related to disclosure can lead vulnerable women to seek prenatal care at very late stages in their pregnancy, to stay in an abusive relationship, or to deter testing.

I haven’t been surprised to see flagrant HIV-related human rights abuses in my international research projects. But the extent to which a segment of the Canadian population has to intentionally protect itself from the criminal justice system on a health matter gives me pause. It troubles me to imagine that in my own city, people living with HIV are, even if unintentionally, treated as a threat from which criminal laws are meant to protect. Are people living with HIV not worthy of protection too? Or an even simpler question: what does criminal law have to do with HIV anyway?  Even when a person’s viral load is undetectable due to medication and therefore untransmittable, their sexual activities are subject to surveillance. Safe sex should be about protecting the health of one’s self and partner, not about protecting one’s self from the long arm of the law.

On Oceans, Borders and Belonging

Kilburn JessyeBy Jessye Kilburn

“How inappropriate to call this planet Earth when it is clearly Ocean.” (Arthur Clarke)

Recent birthday celebrations for Québec, Canada, the US and France have made me reflect on borders and what they mean in both our imaginations and our laws. Whether marked by shoreline, waterway, fence or wall, national boundaries have a profound impact on our freedom of movement and our sense of identity.

These national holidays have induced a slight identity conflict. Though I’m thankful for Canada, how do I celebrate July 1st when the date represents 150 years of the imposition of colonial borders and a colonial state? How do I celebrate 150 years of borders that still turn away too many refugees? How am I so lucky to have a visa to work in the USA this summer, when so many others are turned away? Can I celebrate St Jean Baptiste when I’m not really québecoise, though it’s been my home for almost 7 years? And how on earth did I end up celebrating Bastille Day for the first time ever from a parking lot in downtown Denver?!

Amidst my personal reflections on borders and belonging, thoughts from my internship work on maritime governance began to seep into the mix. In a sense, oceans and waterways are what connect our nations, in contrast to the borders that divide. The root word of ‘territory’ means ‘land’ in Latin (like «terre» en français), and the concept of national territory is rooted to that of land.

Borders, territorial sovereignty, and national jurisdiction do not work as well on sea as they do on land, despite the efforts of the UN Convention on the Law of the Sea to draw various kinds of boundary lines on the world’s waters. Sparse state control and scarce state responsibility can mean both opportunity and danger for those who work and travel on the open seas.

In some ways, the sea means opportunity. The lack of state control on the world’s oceans provides the opportunity for migrants to escape desperate situations in their home countries and have the chance at claiming asylum in a new land. Oceans also provide employment to many, with fisheries and aquaculture assuring the livelihood of about 10-12 percent of the world’s population.

In other ways, the sea means danger. A lack of state control opens the door wide for human rights abuses: from fishermen on boats where labour laws are neither respected nor enforced, to a gruesome murder captured on cellphone video that still remains unprosecuted, to a coast guard shooting with impunity at migrants they were supposed to rescue, the ocean can be a dangerous place.

On the high seas, state accountability often fades into the horizon along with the shore. It is not uncommon to have a ship that is (for example) owned in China, flagged by the Bahamas, licenced to fish by the Seychelles, and crewed by a mixture of Filipinos, Indonesians and Sri Lankans. It becomes easy for states to avoid accountability when they can always point the finger at someone else, and countries less likely to exercise oversight are often the ones chosen as flag states. This makes human security at sea a trans-jurisdictional problem, in a system where responsibility is primarily state-based. Seafarers, fishermen, and migrants—usually from non-western countries—are the ones who slip through the cracks.

My slight feeling of displacement and identity disjunction around mid-summer national holidays pales in comparison to the ways in which some people’s lives move with the open seas. Researching maritime law from landlocked Colorado—just about as far as you could get from the sea in North America—I feel a sensory disconnect from those to whom these laws apply. I know the black texts of law written on the whiteness of a page, but I don’t know the colour of the stories that are woven around them.

The closest I can get is the blue of this Colorado mountain lake, although it is so far removed from the ocean. Eventually, these waters flow down through Mexico and the western US to the Pacific, where they’re joined by waters from my homeland, British Columbia, and perhaps eventually even from my adopted land, Québec. Once the fresh water has intermingled with the salt, who can tell anyway? Unlike us humans, the waters don’t get territorial.

The blue space on the map provides a beautiful metaphor for our interconnectedness, as Lights sings so eloquently:

“No matter how far we get
Oceans we are in still connect
And when the currents circle back again
They’ll carry us with them
To the arms of the same sea”

I cannot fully make sense of the ways in which our world is both globally intertwined and sharply divided, and I cannot single-handedly address all the injustice this creates. But I want to remember that—in some small way—my work here in Colorado is connected to all of it.

(And, hey McGill—when I get back to school in the fall, I swear I’ll never laugh at the word “transsytemic” ever again….except maybe at Skit Nite…)

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