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Statutory Analysis and the Necessity of Data:

By Emma Brown

In my first year Constitutional Law course, my professor went on a small tangent during one class about the importance of data. We were discussing equality rights, and she was explaining “adverse effects discrimination” – imploring us to think divergently by considering that facially neutral policies and laws may have differential impacts on certain groups. Without data, she elaborated, these adverse effects are not always clear.

In May, when I finally had time to read for pleasure, rather than for school, I devoured Caroline Criado Perez’s book, “Invisible Women: Data Bias in a World Designed for Men.” The book outlines countless ways that the gender data gap unintentionally leads to policies and designs that put women disproportionately at risk. As I read this book, my mind was pulled back to that Constitutional Law lecture. Little did I know that my summer placement would build on this pattern, highlighting in my mind the importance of understanding laws within the context of their background and enforcement.

Since June 10th, I have been working at the Centre for Law and Democracy (CLD). The organization, which works to “promote, protect and develop those human rights which serve as the foundation for or underpin democracy,”[1] is best known for its data – in particular, the Global RTI (right to information) Rating. The rating system consists of 61 Indicators, which each evaluate a different component of “RTI” laws. The fact that the organization created this type of quantitative evaluation is not surprising, since the Executive Director studied and taught mathematics before obtaining an L.L.B. and pursuing a career in human rights.

While the organization is best known for this rating system, however, the vast majority of the organization’s time is spent on other projects, which tend to be focused more on qualitative analysis of laws from around the world. In particular, my work has mostly involved statutory analysis of international laws related to civic space. The analysis I conduct is then used for a project CLD is currently working on with a major international NGO. While many of my tasks are meant to be merely focused on the evaluation of laws, and not policy, I’ve quickly learned how difficult it is to conduct this type of analysis sincerely without looking at the reality on the ground.  In many cases, law and practice – those two perennial counterparts – are unfortunately juxtaposed.

The easiest laws to evaluate are the ones that are clearly deficient. For example, the Penal Codes in Rwanda and the Democratic Republic of the Congo (DRC) contain provisions that criminalize those who damage the reputation of heads of state.[2] In Rwanda, this provision exists despite the fact that general defamation has been decriminalized. In the DRC, the Code contains a general defamation offence,[3] but insulting the head of state (prohibited under the press law) carries a heavier penalty.[4]  In both cases, the provisions violate international standards, which establish that public officials must withstand a greater degree of criticism than others.[5] Issues like these – where laws clearly violate international standards, or, as is common in the area of access to information, simply don’t exist[6] – are easy to spot.

It becomes much more difficult when laws appear acceptable on their face, but a quick google search shows that practices in the applicable country do not align with the official laws or policies. Here, data becomes crucial in order to understand why this misalignment occurs. Often times, it’s a mere issue of enforcement – when state actors ignore the laws, they become irrelevant. For example, while Montenegro’s public assemblies law largely reflects international standards – containing a notification (rather than approval) system, creating an appeal process for refusals of assemblies, and recognizing (albeit in a vague way) spontaneous assemblies[7] – police frequently misinform organizers of assemblies on their rights and obligations.[8] As a result, the rights conferred by the law are largely meaningless. However, in many other scenarios, the divergence between law and practice are caused by much deeper issues.

Often times, the failure to operate in accordance with the official laws has to do with the reason for the laws’ existence in the first place. An example of this issue can be seen in Serbia’s Law on Personal Data Protection (adopted in 2018).[9] The motivation for passing this law was (at least in large part) to support Serbia’s goal of EU membership – not, as one might assume, to create the best data protection scheme in the Serbian context. Because of this, the law virtually mirrors the European Union’s General Data Protection Regulation (GDPR) but fails to take into account Serbia’s history in this area.[10] In general, there is a lack of privacy culture in the country, meaning that most individuals and organizations are not aware of privacy rights.[11] In terms of legislative history, the previous 2010 Law on Electronic Communications required telecommunication providers to keep records of the source, destination, and timing of all electronic communications for one year, for potential government use.[12] Until 2013, this data could be collected without a warrant,[13] and even after this provision was found unconstitutional, rates of unauthorized access were unknown, as technical systems created by the previous regulatory framework continued to exist.[14] Because of this, the 2018 law may appear acceptable on its face, but when considered in relation to Serbia’s history, its flaws are more crucial than they may first appear. While it is too soon to fully examine the law’s impact, it has been criticized as being overly complicated – which is problematic in light of the lack of privacy culture – and as failing to address digital privacy issues – which is concerning considering the existence of current avenues for unauthorized surveillance.[15]

The impacts of a country’s background on the effectiveness of a particular law is, of course, very context specific, but has been relevant in each of the nine countries I’ve looked at through my placement. In many cases, the motivations behind legislation are rooted in international political goals, but in others, the motivations are rooted in different, but equally relevant concerns: In Rwanda, media laws have to be considered in light of the media’s role in the genocide.[16] In Bosnia & Herzegovina, policies regarding government consultation with civil society have to be understood in light of the fact that NGOs were largely created after the war to deal with service needs, not civil society ones.[17]

As a law student who previously completed an undergraduate degree in “legal studies,” I’ve long been aware that laws cannot be fully assessed in isolation. However, my time at CLD has greatly deepened this understanding, as I’ve seen how many different ways practices can deviate from laws. Issues can, of course, can be rooted in a law’s structural flaws, but can also arise when the law appears perfectly adequate but fails to take into account the context it is meant to operate within. Data, then, seems crucial for anyone hoping to affect positive change through statutory analysis, as recommendations for future improvement should ideally be sensitive to the causes of the deficiencies, rather than just the technical inadequacies of the applicable law – virtually identical provisions can be appropriate in one country, and entirely lacking in another. Much like in the context of equality issues, where policies that appear neutral can have adverse effects on different populations, and in the context of design, where the gender data gap can put women at disproportionate risk, sincere analysis of human rights law requires data regarding the motivation for the creation of each law and the societal context that it operates within.

In this way, my placement at CLD has not only made me familiar with international human rights standards related to civic space and given me the opportunity to engage with laws from a variety of different legal systems; it has also given me a new skepticism that will undoubtedly impact how I consider the laws I study through the remainder of my degree (and later, engage with through the course of my career).

 

 

[1] Centre for Law and Democracy, “About Us,” https://www.law-democracy.org/live/about-us/what-we-do/.

[2] Art 236 of Law No 68/2018 of 30/08/2018 (Rwanda); Article 77 of Law No 96-001 of 22 June 1996 (DRC); Article 251, 252.

[3] Art 74 of Decree of 30 January 1940 on the Penal Code (DRC).

[4] Article 77 of Law No 96-001 of 22 June 1996.

[5] General Comment No. 34, CCPR/C/GC/34 at para 38.

[6] For example, the Democratic Republic of the Congo, Burundi, and Madagascar recognize the right to information in their constitutions but have no implementing legislation.

[7] Law on Public Assemblies and Public Performances, Official Gazette of Montenegro No. 52/16.

[8] ECNL: Monitoring the Right to Free Assembly (2017): (http://ecnl.org/wp-content/uploads/2017/12/ECNL-FoPA-Montenegro-2017.pdf), pg. 4.

[9] Law on Personal Data Protection (Official Gazette of the Republic of Serbia. No 87/2018).

[10] BD2P, “Serbia: The Law on Personal Data Protection,” December 2018, online: https://www.bd2p.com/upload/files/1545208079-eef11.pdf at pg. 3.

[11] EDRi, “Will Serbia Adjust its Data Protection Framework to GDPR,” 2019, online: https://edri.org/will-serbia-adjust-its-data-protection-framework-to-gdpr/.

[12] Art 128-129 of the Law on Electronic Communications (Official Gazette of the Republic of Serbia, No 44/10).

[13] Global Freedom of Expression (Colombia University), Summary of Constitutional Court decision (Official Gazette RS, no. 60/13), online: https://globalfreedomofexpression.columbia.edu/cases/serb-law-on-electronic-communications-articles-128-1-128-5-129-4-2013/.

[14] Global Information Society Watch, “Serbia,” 2014, online: https://www.giswatch.org/en/country-report/communications-surveillance/serbia.

[15] EDRi, “Will Serbia Adjust its Data Protection Framework to GDPR,” 2019, online: https://edri.org/will-serbia-adjust-its-data-protection-framework-to-gdpr/.

[16] See Allan Thompson, The Media and the Rwanda Genocide (London: Pluto Press, 2007).

[17] See discussion in Arnaud Kurze, “Time for Change: Aid, NGOs, and Transitional Justice in Bosnia-Herzegovina,” (2017) 1:5 Transitional Justice Review.

The Politics and Uncertainties of Gladue

By Christopher Little

In 1998, Parliament added section 718.2(e) to the Criminal Code. This provision stated, quite simply, that at sentencing, judges consider:

all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.[1]

In requiring that judges consider alternatives to incarceration, Parliament was taking aim at the disproportionately high incarceration rate of aboriginal offenders. As then Minister of Justice Allan Rock noted before the Standing Committee on Justice and Legal Affairs:

The reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada… Nationally aboriginal persons represent about 2% of Canada’s population, but they represent 10.6% of persons in prison.  Obviously there’s a problem here… What we’re trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage the courts to look at alternatives where it’s consistent with the protection of the public—alternatives to jail—and not simply resort to the easy answer in every case.[2]

While the legislative objectives seemed simple enough, their implementation would be more complex. Indeed, Parliament did not articulate what alternatives ought to be considered and how this information was to be made available to judges. Instead, interpretation fell partially to the Supreme Court of Canada in R v Gladue (1999), in which the court considered the case of Jamie Gladue, a young aboriginal woman living off reserve who appealed her sentence for manslaughter because the judge did not consider s. 718.2(e). In their decision, the Court held that 718.2(e) was both remedial in nature, designed to rectify the overrepresentation of aboriginals in prison, and that it therefore applied broadly to all aboriginal persons.

Following the case, the information that was to be brought to the Court came to be referred to as “Gladue factors” and the vehicle that presented this information came to be known as a “Gladue report.” Gladue reports are thus a form of pre-sentencing report discussing an offender’s life and community history, as well as alternative sentencing options other than imprisonment that a judge may consider.

Conflicts and Confusion over Gladue

Before and during my placement as a Gladue Writer with the Department of Justice and Correctional Services of the Cree Nation Government, I had the opportunity to complete Gladue training and speak with many people who write Gladue reports. What became clear to me was that there is still little consensus surrounding Gladue reports.

For example, Gladue information may be presented to a court in various forms. In Quebec, Gladue reports are standalone documents that may exceed 10,000 words and are prepared by specialist “Gladue writers” who spent many hours conducting interviews and historical research. In contrast, in the Northwest Territories, as an example, Gladue reports are not even written. Instead, regular pre-sentencing reports that are written by probation officers—whose primary concern is risk assessment—contain a brief “Gladue paragraph” that is supposed to discuss an offender’s life history and community information.

Likewise, while there is a consensus that Gladue factors are to be considered at sentencing, uncertainty surrounds whether these principals apply at other occasions when aboriginal offenders are faced with the deprivation of their liberty. For instance, in Ontario, courts have held that Gladue principals apply at bail hearings, while a more recent decision from Nunavut has held that Gladue does not apply at such hearings.[3]

Finally, there is much divergence between writers themselves. For example, while some Gladue writers see themselves as “neutral” or at least impartial and disinterested parties who merely compile information for the courts, others understand themselves as working on behalf of the offender to “help” them. Likewise, among writers there are many disputes concerning how Gladue reports should be compiled and by whom. Some writers, for instance, insist upon the use of recording devices to better convey the offender’s story to a court, while others believe that the use of recorders creates a barrier that will prevent the offender from speaking openly. Likewise, while some give offenders the chance to review their reports before they are sent off, others insist that this is counter-productive and may not feasible given tight deadlines. Finally, some suggest that the perspective of victims should, when possible, be included in the report while others suggest that sentencing is entirely about the offender and victims can bring their own information to the Court through a victim impact statement.

The confusion surrounding Gladue is also evident in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The report makes many recommendations, some of which pertain to Gladue. For instance, the commissioners appear to recognize the importance of Gladue reports when they call for governments to adequately fund Gladue and to create national standards for what is to be included in the reports. However, commissioners also call for the government to evaluate sentencing equity as it relates to violence against Indigenous women and girls, reflecting the view that, in the words of commissioner Qajaq Robinson, that Gladue reports offer a “get out of jail free card” and release potentially dangerous offenders back into the community.[4]

Toward Standarization?

These differences reflect the fact that despite having been in existence for some 20-years, there are no guidelines for writing Gladue reports. Instead, over the years, various practitioners began writing Gladue reports, learning largely through trial and error, and have now created Gladue courses to train other writers, who take their version of what a Gladue report should be, across the country. Such an approach has, in effect, institutionalized discrepancies in reports across the country. In turn, this has led to disputes about “best practices” and battles over standardization, between practitioners who have honed their practice in different contexts: some in aboriginal communities, others in urban environments, some coming from academic backgrounds, other from practice-oriented fields such as mediation.

The ambiguity surrounding Gladue, however, is likely to be the subject of increasing attention over the next several years. Aboriginal overrepresentation in prisons has continued to increase, the various inconsistencies in Gladue are receiving attention across, and the MMIWG report has brought Gladue into the mainstream.

 

[1] R.S.C. 1985, c. C-46.

[2] House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of

Proceedings and Evidence, no. 62 (November 17, 1994), at page 62.

[3]  R v Robinson, 2009 ONCA 205; R v Jaypoody, 2018 NUCJ 36.

[4] Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls at page 185; Kim Beaudoin. Fair Access to Justice Must be for all Indigenous People. The Globe and Mail, 3 July, 2019.

What Canada can learn from the Inter-American Court of Human Rights

Kelly O’ConnorBy Kelly O’Connor

My internship at the Inter-American Court of Human Rights is now almost over… time flies! In the time since my last post, I have had the chance to get to know even more colleagues from different countries around the Americas and overseas and to think about some of the most pressing human rights issues facing this region, as well as to deepen my reflection of Canada’s relationship with this institution.

One of my favourite parts of this internship has been the opportunity to participate in the rich academic life of the Court and neighbouring institutions. San José has become a hub of human rights law in the Americas, and interns at the Court have been invited to participate in lots of interesting talks inside and outside the Court. I went to a talk about the place of social, economic, and cultural rights in the Inter-American system at the Inter-American Institute for Human Rights. I also went to a talk about Costa Rica’s asylum policy at the University of Costa Rica’s Law Faculty.

Going to a talk at the Inter-American Institute of Human Rights

Despite these enriching experiences, some of the best talks I’ve had have been with other interns as well as the Court’s lawyers over the lunch table. I love that it is part of the organizational culture here for everyone to take a break from their desks in the middle of the day to eat with colleagues. In these lunchtime chats, the interns and visiting professionals really get the chance to get to know each other and to learn about each other’s countries. Our topics cover everything from favourite dishes, to constitutional law, to the most important human rights issues.

On June 3rd the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls was released, and I mentioned it at lunch that day. The reaction was split: some lawyers knew of Canada’s poor track record in treatment of Indigenous peoples, but others could not believe their ears. “Missing and murdered Indigenous women, in Canada?” they asked me. The word “missing” in Spanish – desaparecido or desaparecida – comes with a lot of baggage.

Enjoying an outdoor lunch with my colleagues at the Court

In Latin America, the word “disappeared” is most commonly used to refer to people who have been forcibly disappeared by state actors in the context of authoritarian governments. Forced disappearance can happen in any part of the world, but its widespread use in Latin America has made it a common topic at the Inter-American Court.[i] Indeed, the Court’s development of the legal concept of forced disappearance, from its very first case in 1988,[ii] has been one of its most groundbreaking bodies of jurisprudence. For example, in the case Radilla Pacheco Vs. México, the Court explains that:

In International Law this Tribunals’ jurisprudence has been precursor of the consolidation of a comprehensive perspective of the gravity and continued or permanent and autonomous nature of the figure of forced disappearance of persons. The Court has reiterated that it constitutes a multiple violation of several rights protected by the American Convention and places the victim in a state of complete defenselessness, implying other related violations, especially grave when it forms part of a systematic pattern or practice applied or tolerated by the State.[iii]

In the same case the Court outlines the main components of forced disappearance, which have been developed through jurisprudential developments since 1988:

a) the deprivation of freedom; b) the direct intervention of state agents or their acquiescence, and c) the refusal to acknowledge the arrest and reveal the fate or whereabouts of the interested person.[iv]

Now, no one is suggesting that the crisis of missing and murdered Indigenous women and girls in Canada can be attributed to the “direct intervention of state agents” as outlined in Radilla Pacheco and other cases. However, the Court’s jurisprudence has expanded beyond disappearance by state agents and has examined disappearances committed by non-state actors. I think that these cases could teach some important lessons to Canada and Canadian courts for responding to the Final Report of the National Inquiry.

For example, the Court has said that state parties to the American Convention on Human Rights have the obligation to guarantee respect for the rights contained in that instrument and to prevent such violations. One part of the need to prevent and guarantee is to diligently investigate human rights violations, regardless of whether the suspected perpetrators are state agents or private individuals. The Court has also identified that states have an accentuated obligation of due diligence in the investigation of disappearances of people who have an accentuated risk of being victimized, including women.

One of the first such cases was the Case of González et al. (“Cotton Field”) v. Mexico (“Campo Algodonero” in Spanish), which deals with a situation of missing and murdered women in Ciudad Juárez in Mexico. The decision jointly analyses violations of rights contained in the American Convention and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, known as the Convention of Belém do Pará, of which Canada is also not a signatory. The Court said:

States should adopt comprehensive measures to comply with due diligence in cases of violence against women. In particular, they should have an appropriate legal framework for protection that is enforced effectively, and prevention policies and practices that allow effective measures to be taken in response to the respective complaints. The prevention strategy should also be comprehensive; in other words, it should prevent the risk factors and, at the same time, strengthen the institutions that can provide an effective response in cases of violence against women. Furthermore, the State should adopt preventive measures in specific cases in which it is evident that certain women and girls may be victims of violence. This should take into account that, in cases of violence against women, the States also have the general obligation established in the American Convention, an obligation reinforced since the Convention of Belém do Pará came into force. (emphasis mine)[v]

The Court has also established that States must adopt norms and regulations that allow the authorities to investigate cases of violence against women with the required due diligence. It has suggested that the state can satisfy this requirement through the standardization of protocols, manuals, and expert consulting and judicial services.[vi]

The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls

In comparing IACtHR jurisprudence with Final Report of the National Inquiry, I saw an overlap between types of problems identified in cases like Campo Algodonero and the challenges faced by Indigenous Women, Girls, members of the LGBTQ2S community, and their families. The National Inquiry reports descriptions of “police apathy in cases involving violence against Indigenous women, girls, and 2SLGBTQQIA people”, mentioning that this apathy “often takes the form of stereotyping and victim-blaming, such as when police describe missing loved ones as ‘drunks,’ ‘runaways out partying,’ or ‘prostitutes unworthy of follow-up.’”[vii] However, police services are not the only problem. When the National Inquiry spoke to police services, many cited “insufficient equipment and resources as impeding their efforts to engage in proper investigation, as well as in crime prevention, in First Nations communities.”[viii] It is easy to make the connection between the gaps revealed in the report and the standards called for by the Inter-American Court.

The more I learn about the Inter-American Human Rights System, the more I realize that Canada shares a lot of struggles with Latin American countries. Indeed, a history of colonization and genocide of Indigenous peoples is common to almost every country in the Americas, including Canada and the United States. One could say it’s what brings us together and unites us, our common legacy of colonization.

The Canadian government and Canadian courts should look to the rich jurisprudence of the Inter-American Court for inspiration on how to tackle the problems outlined in the National Inquiry’s Final Report. Although Canada is not a signatory of neither the American Convention nor the Convention of Belém do Pará, human rights are universal and the developments in this regional system could inspire and inform interpretations of Canadian law and the Canadian Charter of Rights and Freedoms. Perhaps one day Canadians will be able to directly benefit from the protections offered in the Inter-American System by bringing complaints directly to the Court.

Not all work: Making new friends of the animal variety on a weekend trip to Manuel Antonio National Park

—-

[i] For more information, the Court publishes Case Law Handbooks on a variety of topics, including forced disappearance http://www.corteidh.or.cr/sitios/libros/todos/docs/cuadernillo6.pdf (available in Spanish only). For the full list of Handbooks, see: http://www.corteidh.or.cr/publicaciones-en.html.

[ii] Caso Velásquez Rodríguez Vs. Honduras. Sentencia de 29 de julio de 1988. (Fondo). Ser. C No. 4 (1988).

[iii] Caso Radilla Pacheco vs. México. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 23 de noviembre de 2009, párr. 139

[iv] Caso Radilla Pacheco vs. México. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 23 de noviembre de 2009, párr. 140

[v] Caso González y otras (“Campo Algodonero”) Vs. México. Excepción Preliminar, Fondo, Reparaciones y Costas. Sentencia de 16 de noviembre de 2009. Serie C No. 205, párr. 258

[vi] Caso López Soto Vs. Venezuela.Fondo, Reparaciones y Costas. Sentencia de 26 de septiembre de 2018, párr 131, Caso González y otras (“Campo Algodonero”) Vs. México, supra, párr. 388, y Caso Velásquez Paiz y otros Vs. Guatemala, supra, párr. 148.

[vii] National Inquiry into Missing and Murdered Indigenous Women and Girls. Executive Summary of the Final Report. June 2019. Available at: https://www.mmiwg-ffada.ca/final-report/, p 38.

[viii] National Inquiry into Missing and Murdered Indigenous Women and Girls. Executive Summary of the Final Report. June 2019. Available at: https://www.mmiwg-ffada.ca/final-report/, p 38.

Progress on the One Earth Future Maritime Security Index

By Derek Pace

Words can’t come close to expressing how much I feel I’ve learned in the past eight weeks. I’m still shocked by the extent to which my work at One Earth Future has allowed me to immerse myself in a topic about which I knew exceedingly little. If you had asked me two months ago what “maritime security” entails, I likely would have said something along the lines of “piracy.” To be fair, that’s an important part of maritime security; I don’t think anyone would deny that. It’s so much more than that, though. Maritime security is a complex web of topics that relate to each other in complicated and often overlapping ways, including gas and oil reserves, coastal tourism industries, vulnerability to the negative effects of climate change, maritime border disputes between neighboring countries, sea migration routes, labor trafficking, the strength of a country’s navy, and the ecological balance of a country’s fish stocks, to name just a few. I never would have thought that so many topics, some of which seem unrelated to maritime security at first glance, would be pertinent in my work this summer. I’ve realized that I love seeing how the disparate pieces connect to form a broader picture of maritime security in the dozens of countries that I’ve studied at OEF.

The connection to human rights continues to become clearer, as well, particularly in topics like human trafficking at sea. One of my projects involved combing through the US State Department’s annual Trafficking in Persons report, which describes in great detail the state of human trafficking in each country. Although I didn’t have to read every page of the 500+ page report, what I did read was sometimes excruciatingly hard to stomach and hard not to mentally take home with me at the end of the day. The work, though, remains important, and the links between human trafficking and maritime insecurity are well documented. Thai fishers, for example, are sometimes tricked into accepting what they often believe to be a lucrative aquaculture job, sometimes in another country. Ultimately, many of these people are forced to fish on fishing vessels for years at a time, rarely, if ever, seeing the shore. They live in abysmal conditions, work against their will, and are constantly vulnerable to physical and mental abuse by the trafficker-captain. Stories like this are overwhelmingly common, and they don’t always resemble this one. Human trafficking can involve a system of debt bondage by which entire families are forced to work in brick kilns to pay off the debts of ancestors, or a domestic worker in Qatar whose family traps her in the house and forces her to work for very little pay. Trafficking takes many forms.

Recently, after spending weeks researching and collecting and coding data, we’ve transitioned into writing. Now that most everything is done on the data side, we’ve begun writing the content for the Maritime Security Index. There will be nine issue reports, one for each of the nine data categories, which include Coastal Welfare, Maritime Mixed Migration, and Piracy & Armed Robbery. The issue reports contain a broad overview of the state of each issue across the countries included in the Index, primarily in Africa and Asia. Each issue report will also dive into the specifics of the issue in each region; I’ve written many of the blurbs for the Middle East and North Africa. I’ve also worked substantially on the country reports, which provide a more focused look on the state of maritime security in each country included in the Index. Specifically, the country reports center on interesting stories from which one can glean broader information about the state of maritime security in each country in 2019. For instance, I’ve written about the effect of the conflict in Yemen on Yemeni fishers in the port city of Hodeida and the potential effects of an increase in coastal tourism in Lebanon this summer.

OEF will disseminate the Maritime Security Index, once completed later this fall, to various stakeholders and government actors around the world, as part of its mission to reduce the factors that lead to various kinds of conflict. I feel proud to contribute to a project in which I truly believe and that I find very exciting. I’m also proud of how much I’ve grown this summer. I’ve discovered a new interest that I didn’t know I had and developed my research and writing skills immensely. I still have about a month left in my internship, but nonetheless, I couldn’t be prouder of the work that I’ve done so far.

Carving a Path Towards Decriminalizing HIV in Canada

By Reeve Kako

Before starting my internship at the Canadian HIV/AIDS Legal Network, I was completely unaware of the dire consequence that accusations of HIV non-disclosure have had upon thousands of people living with HIV across Canada. Canada remains fifth in the world in criminalizing individuals for not disclosing their status and continues to hold the unfortunate and unique title of prosecuting non-disclosure cases under the severe charge of aggravated sexual assault. Those convicted, including many who may be victims of sexual assault, abuse, or extortion by their accuser, face the threat of life sentences and a mandatory registration on the sex offender registry. Regardless of whether the virus was actually transmitted, and even with the use of a condom, the possibility of being charged and convicted for non-disclosure remains a frightening possibility for many throughout Canada.

Coming to understand this shocking reality faced by those living with HIV in a country I have always been proud to call a champion of human rights was deeply saddening and disturbing.  As an openly gay man who understands all too well the impact that government policy has had upon LGBTQ+ persons and their access to dignity, I was, and will continue to be ashamed of my government until HIV decriminalization advocates are listened to and reform efforts are realized.

Thankfully, despite this grim legal landscape for HIV non-disclosure cases in Canada, last month provided ample reason for me to believe that positive reform may be within reach. As part of my internship, I had the privilege of assisting at the second meeting of the Canadian Coalition to Reform HIV Criminalization (CCRHC) on June 12th and 13th. The day following these meetings, the Canadian HIV/AIDS Legal Network also held a larger Symposium focused on HIV criminalization.

As the minute-taker at the CCRHC meetings, I was introduced to the challenging yet rewarding process that is coalition building. It was remarkable to see how a large group of people with a diverse set of viewpoints could share their opinions and work toward a common set of goals for the future. Tough questions were raised, such as the issue of how to reconcile the risks of pursuing legislative reform when it could ultimately lead to a new offence that might come with its own adverse consequences. In the end, however, compromises were struck, and priorities were laid out, while other issues were left to be decided when more information on the future political landscape became available. Being able to witness this valuable work allowed me to realize firsthand how reform efforts are championed and the significance of building consensus to achieve a common advocacy goal.

The Symposium on HIV Decriminalization that followed provided a medium to attract public attention to decriminalization efforts across Canada.  Canada’s Attorney General, David Lemetii opened the Symposium and spoke in support of decriminalization efforts. He committed his government to pushing decriminalization efforts further should his party win re-election in the fall. Survivors of decriminalization shared their sorties in a public forum, bringing an important personalized viewpoint of the issue to the public, and the leading science on the transmission of HIV was presented.  The Symposium was an incredible day that demonstrated to me the importance of public relations and communications strategy in advocacy, as well as the power derived from first-person storytelling.

In the week following these critical meetings, Canada saw yet another watershed moment for HIV criminalization reform. The federal Justice Committee released a report that called for the end of prosecutions of non-disclosure under aggravated sexual assault laws and instead advocated for a new offence that would only criminalize cases where the virus has actually been transmitted. This would significantly limit the current “realistic possibility of transmission” standard. While these findings are positive steps towards achieving the CCRHC’s ultimate goal of complete decriminalization, less favourable aspects of the report included the recommendation that this new offence include other communicable diseases within its scope, as well as the potential for individuals being charged with non-disclosure based on a reckless standard of intent. These recommendations would create a criminalization scheme that would go further than the intentional standard for which the CCRHC has advocated. Yet, despite these drawbacks, a law based on these recommendations would nevertheless be significant progress towards narrowing the ability for the criminal law to punish people living with HIV.

However, despite ample reason to celebrate the report’s favourable recommendations, the CCRHC remains hesitant to do so. The Justice Committee’s report is only a preliminary success in a long legislative process, with several more steps required to pass such recommendations into law. The political uncertainty created by the upcoming October federal election therefore poses a significant potential barrier to this reform being realized. The Justice Committee’s report was not unanimous and was broken into a majority report written by the Liberal majority and two dissenting opinions written by the NDP and the Conservative parties, respectively. The majority findings of the report summarized the findings outlined above, while the dissenting opinion of the NDP proved to be more in line with the CCRHCs goals in rejecting the potential inclusion of a reckless standard. However, the Conservative minority report significantly differed from the CCRHCs proposals, advocating for continued criminalization of a “realistic possibility of transmission,”, as opposed to actual transmission, and a refusal to rule out prosecution for sexual acts where a condom was used, or only oral sex was engaged in. Therefore, the distinct possibility of a federal Conservative majority following October’s election could see the halting of most, if not all, of the positive aspects of the CCRHC’s legislative reform efforts.

The findings of this report act as an illustration to me of the both the rewards and frustrations inherent in human rights advocacy work.  On one hand, in large part due to the lobbying efforts and testimony offered by members of the CCRHC, the government in power has finally acknowledged the harm they are doing to those living with HIV.  However, on the other hand this acknowledgement and its recommendations for change may never be realized due to future political uncertainty. While coming to terms with this reality is difficult, in the end, my internship has taught me that allowing this possibility to deter you or exhaust you from continuing to push for change is about the worst thing an advocate can do. Governments change, however, what remains consistent is the ability for advocacy groups to continue to push for needed reform in spite of resistance. Should the government change in the fall, reform efforts will recalibrate and the fight for justice must and will continue!

Meeting human rights defenders: when one falls, ten will rise

By Natalia Koper

Winter in Lima is a multisensory experience. The streets are dusty and polluted, and the chilly humidity is difficult to get used to. The hustle and bustle of traffic and street vendors continues long after dusk and resumes at full volume from the early morning hours. The sky is murky every day, giving the city a feel of suspense and unease. It’s been over a month since Lima welcomed me and crossing a busy street is still an adventure. Here, the green light is merely a suggestion – never a guarantee. Instead, drivers approach honking, announcing their presence in defiance of traffic norms.

It was a pleasure to hang out with Emilie de Haas, a former IDEHPUCP intern from McGill, while she was visiting her friends in Peru.

Despite its tense and mysterious side, Lima is also lively and passionate. I wake up every day listening to the sweet tweet of the birds. Every household in my neighbourhood has a colourful garden of tropical flowers and plants. And then there’s soccer: I didn’t need to watch Copa América (the South American soccer championship) to know the current score whenever Peru was playing, as the entire city would hold their breaths and then cheer wildly into the streets every time their compatriots scored a goal.

If Lima were a person, she would be a moody rule-breaker, but also creative and spirited.

My amazing colleagues from the Institute. Thank you for being so welcoming!

This is the setting of the Institute for Democracy and Human Rights (IDEHPUCP in Spanish), a leading Latin American research facility, and it is where I’m spending my summer. The Institute, born in 2004 from the work of the Truth and Reconciliation Commission (CVR), continues to examine the causes and implications of the internal armed conflict, which raged in Peru for two decades between 1980 and 2000. The work of the Institute goes beyond this mandate, by striving to build a stronger civil society through research, publications, and education programmes. I’ve been so grateful for the opportunity to participate in the very diverse initiatives that the Institute is undertaking.

Last week, I attended workshops organized by the Inter-American Commission on Human Rights (IACHR). Together with the only other foreign intern Weronika (who is a third-year political science student at Yale and coincidentally Polish, like me), we reported on the events taking place throughout the week. There were 60 human rights defenders from twenty Latin American states, selected from almost 3000 applications. On the first day, everyone introduced themselves and briefly described their line of work. Among different dimensions of human rights work, the defenders discussed women’s rights, LGBTQ rights, Indigenous and Afro-descendant rights, environmental rights, migration rights, rights of prisoners, freedom of expression, and rights of victims of armed conflicts. I felt honoured to be in the presence of this diverse group of extraordinary individuals who put their lives at risk to defend values and causes worth fighting for. Spending an entire week with them was truly a humbling and inspiring experience.

At the beginning of the IACHR course, participants identified key challenges for the human rights field in Latin America.

I had the pleasure of speaking to a few of these activists, one of whom monitors prison conditions in Venezuela. As she described, prisoners in Venezuela are dying from a lack of the most basic medical care – anything from tuberculosis to ear infections. They are also subjected to torture, with cases of deaths registered as suicides. Prisons are so overcrowded that some people stay in tiny custody cells at police stations for months after being convicted. This phenomenon has led prisoners to establish a rotation system for who will get to sleep on a particular day.

I also met an immigration lawyer from Guadalajara, Mexico who recounted challenges faced by stateless immigrants trying to register their children in Mexico. Some people who arrive in Mexico from rural areas of Central America do not have any documents, no birth certificate, nothing. When they turn to the Mexican authorities for registering their children’s birth certificates, the immigration authorities refuse to process the documentation, which means further marginalization and limited access to public services. This is why Luis’s FM4 Paso Libre is committed to providing comprehensive assistance to those in need, including shelter, psychological help, and social reintegration, and legal advice.

The main objective of the course was to train human rights defenders in accessing the inter-American human rights system, composed of the IACHR (same guys who organized the course) – whose doors you can on knock first if you’d like to denounce human rights violations in an OAS country – and the Inter-American Court of Human Rights – the main organ of the inter-American system (where Kelly O’Connor is completing her internship placement right now). The participants engaged in a series of interactive lectures and mock hearings led by the IACHR staff (and recently appointed Commissioner Julissa Mantilla, who is a law professor of some of my colleagues at the Institute). At the end of the course, they were committed to imparting what they learned in their organizations and communities.

The participants tried out different roles during a mock IACHR hearing. The fact pattern concerned the urgency of granting adequate protection measures to the wife of an Indigenous community leader.

A recurring theme of the week was the safety of human rights defenders. Three out of four murders of human rights defenders occur in Latin America, as was emphasized by Commissioner Francisco José Eguiguren during a conference that inaugurated the week. In 2018, Colombia and Mexico alone accounted for 54% of the total killings, according to Front Line Defenders’ report. In addition, the activists face threats, criminalization, harassment, stigmatization, and arbitrary detentions. Some of the participants have already experienced violence or are beneficiaries of precautionary measures, which are granted by IACHR in serious and urgent situations in order to prevent irreparable harm.

Human rights defenders play a critical role in protecting the rights and wellbeing of their communities. Their voice holds governments and businesses accountable to the international community and the public in general. As such, it is disheartening to hear about activists labelled as ‘terrorists’ and peaceful protests equated with ‘inciting rebellion.’ Arguably, it’s in everyone’s interest to keep rights-upholders safe. Am I naïve to think that everyone wins if rights pertaining to each and every one of us are recognized and respected? For some reason, the dynamic of human rights defence has always been binary and adversarial: activists versus the government; the community versus the corporation etc. As a result, the mistaken pursuit of power and wealth has led many private actors to believe that human rights pose a limitation to business. But the way I look at it, businesses thrive where rights are respected because they operate more efficiently in an environment of political and economic stability, transparency, and accountability.

On the last day of the IACHR course, everyone had a chance to reflect on the past few days and to celebrate its diversity of perspectives and cosmovisions. There were many tears and expressions of gratitude for being heard by the IACHR. Within one week, these people exchanged accounts of violence and other challenges they face daily, realizing to their surprise that they shared many of the same experiences. It was very powerful because, simply put, it meant that they were not alone in their fight and that they could look for support among each other. In the end, a participant from Chile shared with the group a Mapudungun message of hope: when one falls, ten will rise.

On the weekends, I try to travel as much as possible. I’ve never been to Peru before and there is so much to see!

A condor at Colca Canyon.

Here, Paracas National Reserve, home to Humboldt penguins, sea lions, and breathtaking landscapes.

The said penguins at Islas Ballestas, in Paracas National Reserve.

Navigating the Small Moments in Kampala

By Kirstie Russell

My commute to and from work is, in many ways, the time when I am most reflective on my new life in Kampala. Part of me wonders if this is because it makes up about 2 to 3 hours of my day, but another part of me thinks it is because it gives me time to slow down and really observe the city, its people and the way of life here. Kampala’s exuberance and vibrancy is difficult to put into words. Whatever I write here in this blog cannot possibly do it justice.

I arrived in Uganda nearly two months ago and still, almost every day, I see a passenger riding a boda (the motorcycles that most locals use to get around) while balancing some kind of large object on the end of the bike. For example, last week we saw a passenger transporting what must have been a 4-foot sheet of glass, which if you are at all familiar with Kampala’s traffic, is extremely risky business. The week before that, we saw a boda driver carrying a passenger who was balancing another broken down boda perpendicularly in his hands, clearly on the way to a mechanic. Just yesterday we saw a boda driver transporting what must have been 8-foot tall stalks of sugar cane horizontally through the narrow streets of Old Kampala, just missing other drivers passing by. Each and everyday we see bodas carrying entire families (sometimes up to 3 or 4 people, including small children) to their workplace and to school. Most of the time these small motorcycles narrowly squeeze in between the traffic, which operates relatively seamlessly but on its own accord given that there are barely any stop signs, traffic lights or street lamps. Meanwhile, pedestrians boldly skirt between the vehicles, which move in sudden spurts taking little mercy on anyone who risks getting in the way. Goats and chickens also occupy the roadway, trying to feed on whatever they can find in the grassy patches next to the uneven tarmac ridden with potholes.

Traffic, which is called “jam” in Uganda, is an inevitable part of life here. This is part of the reason why so many locals rely on using boda-boda’s, which are small motorcycles that weave in and out of the traffic in order to get their passengers to their destination on time.

In a way Kampala traffic is utterly hectic and completely overwhelming but from another perspective, it’s quite beautiful. The streets are chock-full of multicolored cars, mostly models from the 1980s to early 2000s, and motorcycles weaving in and out carrying all kinds of people wearing anything from a suit to flip flops to a beautifully patterned kitenge dress. All of this takes place against a backdrop of lush green hills, dotted with red roofs and rich rust-coloured dirt. A friend of mine local to Kampala describes the city as “beautiful chaos” and I think that puts its perfectly.

Kampala sits on seven hills and numerous valleys. It is extremely lush with all kinds of different trees, ranging from fruit trees to pine trees. Virtually anything can grow here because the climate is so amenable to growth.

The smells of Kampala are almost as diverse as the users of the roadway. On a warm sunny day, the air is usually thick and polluted but as you pick up speed you get enough of a breeze to catch the smell of fresh cassava cooking in oil in silver pots set up all along the road. Towards the middle of the day, the “rolex guys” start setting up their small stands typically protected by nothing other than a meager umbrella that is nowhere near big enough to stop them from getting drenched by one of Kampala’s intense but brief rain storms. Rolex’s are a classic Ugandan food consisting of a thin omelet rolled up in chapati, which is a wheat based fried bread, similar in a way to naan. Even later in the evening you can see women and their children setting up stoves along the roadside where they spend the evening roasting maize, which they then try and sell to tired and impatient drivers stuck in traffic (which the locals call “jam”). I’ve learned that food is extremely important to Ugandans. In fact, I find that it is one of the very first topics strangers ask me about when they find out I am visiting from Canada: “…but have you tried Ugandan food?” I’ve even had Uber drivers invite me over for dinner out of fear that the local food I have tasted is not up to standard. I have been lucky, though, because the organization where I interned at the beginning of the summer kindly provided its staff with lunch. Lunch typically consisted of a number of staple Ugandan foods, including: ground nut “g-nut” paste, which is a purple paste that is made out of nuts that taste similar to peanuts; mataoke (the most cherished Ugandan food), which is boiled and mashed green banana cooked in a banana leaf; Irish potato, which is similar to boiled potatoes at home; pumpkin, which is similar to acorn squash in Canada; beans or cow peas; rice; and some kind of stew, typically made with chicken, beef or fish.

A local man making chapati at a rolex stand near the Refugee Law Project. Chapati is a very cheap but filling option for lunch. I think this is the best Chapati out there, but apparently everybody thinks their “rolex guy” makes the best chapati.

For the first week, I tried every single food available at lunch (with the exception of the meat dishes because I am a vegetarian). I enjoyed most of the dishes but I quickly learned that my body was not used to consuming that much starch all at once in a single meal. Perhaps my challenge with digesting rice, potatoes, chapati, etc. all in one sitting is related to the fact that in North America there is an obsession with body image and because of this, often pressure to eat fewer carbohydrates. It’s possible that given my diet at home, I have difficulty digesting such a large amount of gluten all at one time. In the following weeks, I realized that I had to adjust my lunchtime eating habits to include just beans, cowpeas, rice and avocado in order to avoid getting a stomachache. This disconcerted my colleagues a lot. Every day someone would comment that I wasn’t eating “real” food. Ugandan’s love meat so it was difficult for them to understand why I would choose to eliminate this cherished food group from my diet. Initially, I felt really guilty about not eating all of the different foods offered in the buffet because I could tell that my colleagues were proud of their cuisine and eager to share it with me. I also recognized that choosing not to eat meat is a privilege that is not available to everyone. I didn’t want to come across like a picky eater because let’s be honest, nobody likes a picky eater. I tried to explain to my colleagues that in Canada, unlike Uganda, animals tend not to be raised ethically. Upon hearing this explanation, most of my colleagues understood my reasons for being vegetarian. Many of them seemed aware that food in North America is highly processed and they are very much proud of the fact that Ugandans eat real, natural food. And they should be proud. The tomatoes here are a deep cherry red like I’ve never seen before; the avocados, which are literally the size of my face, are a bright shade of green; and the chickens and goats roam around freely until maturation. The freshness and diversity of the food here is truly amazing, so it is unsurprising that it is such a critical aspect of Ugandan identity.

However, after three weeks of receiving commentary on my food intake, I admittedly became a bit tired out by other people’s focus on my personal dietary choices. Sometimes it felt like it’s all anyone wanted to talk to me about. That and the fact that I had a driver, which I admit, is not something that I felt great about either. While I would have preferred to take public transport to work, I was told by my friend who is from Kampala and who knows the city well that the safest and most reliable way for me to commute to my workplace (which is located about 40-60 minutes outside of the city) was to organize a scheduled driver. Before arriving in Uganda, I had many reservations about this set up. I recognized that this was not a typical form of transport and that it would likely be perceived as “privileged” (as it should be). I wasn’t wrong about this. On my very first day, I was asked the normal question of “where do you live?” and then “how do you reach?” which means “how do you commute?” When I explained that I had a driver due to the challenge of using public means from where I live, the next question was almost always “how much do you pay for that?”

In Canada we tend to avoid asking strangers personal questions, especially questions related to money. However, that doesn’t appear to be the case in Uganda, which is a much more collectivist society than North America, where we are typically more private and individualist. In my experience, Ugandans are much more willing to ask questions about money, family and even in some cases sexuality. Indeed, many people, including work mates, seem to have little reservation asking for intimate details about your personal relationships. A common question people would ask me is why I haven’t had children yet given that I have been with my partner for so many years. At first, my immediate internal reaction to these sorts of questions is shock and then, admittedly, some amount of irritation – why is that anyone’s business other than mine? My external reaction, however, is typically to laugh sheepishly and to try and explain how expectations surrounding family planning are different at home. As a “western intern” in Africa I regularly find myself in this confusing position of feeling like an outsider – distanced and alone – while at the same time feeling like I have no personal space whatsoever because my understanding of what is “personal” is so different from that of most Ugandans, who have a genuine curiosity and well-intentioned concern for one another’s personal wellbeing and family life. I wonder if this is a feeling that international human rights workers feel all of the time or if it something that they get used to as time goes on.

I tried to remind myself of these cultural differences each time I was asked about the cost of my driver. I would try and vaguely explain that while the transportation to and from work is a significant cost, a local friend suggested that having a driver was the safest and most reliable mode of transportation for me, given where I lived. Unfortunately, living close to work was not really an option because the office is so far outside of Kampala and there is limited rental housing in the area. Those who found out how much I paid my driver were shocked by the amount (and to be completely honest when I said the amount out loud, I was too). However, many of them tried to hide their surprise by acknowledging that where I lived was particularly challenging to commute from. Others responded by referring to me sardonically as “their rich friend” or their “rich sister.” These comments were uncomfortable, but I had to learn to brush them off and not take them personally. I anticipated this response and to be quite honest, I understood it. I wished that I felt more confident navigating the matutu routes (local taxi buses) and taking bodas into the rural suburbs outside Kampala, but I knew I had to recognize my own boundaries and I chose to prioritize my safety. I had to accept the consequences of that decision and make the best of it. And funnily enough, it worked out. While at first having a driver seemed like something that was going to make me feel like a total outsider (and a privileged one at that), it had the paradoxical effect of bringing me closer to my colleagues because I could pick several of them up on the way to work and drop them off at the end of the day. In a weird way my commute, which I thought might distance me from my co-workers, actually brought us closer together by allowing us the opportunity to learn about one another’s lives outside of the office.

These very brief interactions in Kampala have taught me the importance of slowing down and noticing the small moments, for example the commute to work and lunchtime conversations, which can be easily taken for granted during an internship abroad. Often times, these seemingly insignificant features of everyday life are the things that we learn from the most. My more challenging moments have also served as an important reminder that when things feel difficult, frustrating or uncomfortable, it is important to remain calm and open-minded because things are not always as they seem and, in some cases, if you just hang in there, they even have a funny way of working out for the best. While it is important to prioritize your wellbeing and know your personal boundaries, I’ve learned that letting your guard down (in some situations) has the potential to change your experience for the better.

A view of the hills in Fort Portal, a city in western Uganda near the crater lakes.

A friend paddling along the Nile River in Jinja, Uganda.

Driving back to Kampala from Nakwero, the town where CEHURD is located.

Time, Suffrage and Disability

By Leila Alfaro

If I had to choose one aspect for which I am most grateful when travelling, it would be the resilience I am forced to develop as I find myself in new, challenging situations. Beyond my love for visiting new sights, tasting different foods and meeting new people, I appreciate being challenged when facing cultural aspects so different from my own to the point I must undertake a process of deep introspection, contemplating the Other as well as my own reflexes and the things and practices I take for granted. Since arriving to Argentina, I have had plenty of time to experience and, most importantly, to reflect on not only the cultural, but also the geographical, infrastructural and economic gaps between this side of the pole and home, up in the North.

Having had the privilege of knowing Mexico and most of Central America, I knew coming here that I should brace myself for an experience in which time could not be measured the same way as back home. It amazes me that, even with everything I know and have lived, I am still surprised seeing how time can move so slowly here. Through meetings postponed, messages unanswered, workshops cancelled, last-minute schedule changes and strikes, my patience has been tested on several occasions. However, as I learn to expect the unexpected, I grow more comfortable with this kind of difference, knowing I am being confronted to my biggest flaw (impatience) and that at the same time I have the opportunity to build on some very valuable skills, namely autonomy, resourcefulness and, of course, resilience.

While I recognize the slow tempo of the city has kept me from achieving the most of this experience work-wise, I also recognize the good it entails – I appreciate this stress-free lifestyle, which is a nice break from the North American way. I also admire the role of family in Argentina, the importance of making time for those around us and for self-care. More time on my hands also means I can enjoy more walks on the beach and more delicious parillas with my family. It also allows me to be more critical about the experience itself; whenever a situation arises, I can truly take a moment and reflect on the why and the implications of whatever is happening for the Argentinian people and for me as a visitor (strikes related to the weakened economy, classes cancelled due to bad weather affecting infrastructure, unavailability of certain goods are some examples of circumstances which I have faced during my time here).

Work may be slow here, but it still happens. I have had the chance to join an interdisciplinary, graduate clinical group working on promoting voting rights for people with disabilities. So far, this has taken the shape of workshops in schools and community centers for individuals with disabilities, lectures aimed at undergraduate students and inter-faculty discussions. I take this work very seriously as it has taught me a great deal about political perspectives and disability rights in the region. In any democracy, we can reasonably expect people with disabilities to have more difficulty enforcing their right to vote without proper accommodations provided by the State – but, what happens when voting is also a duty? In Argentina, an absence to the polls must be justified in order to avoid sanctions; this certainly entails a new set of complex challenges for anyone, and for citizens with disabilities in particular. Because of the unique nature of suffrage in Argentina, addressing it in light of issues of diversity and inclusivity is of utmost importance. I appreciate this opportunity especially given the precarious situation in the country in the context of the upcoming elections this fall.

As the last half of my internship begins, I am starting to feel a bit homesick, but I look forward to new learnings and to continue discovering what this country has to offer (I am excited to visit Mendoza and Buenos Aires this upcoming week!), and in the end I know it will have seemed like it all happened in the blink of an eye.

Abortion in the Americas: Article 4(1) of the American Convention on Human Rights

Kelly O’ConnorBy Kelly O’Connor

I can’t believe it’s been more than a month since I arrived in Costa Rica to start my internship at the Inter-American Court of Human Rights! Of course, when I think back on all of the experiences I’ve had in the past 6 weeks, professionally and personally, I can see that I have been busy during this short time.

My idea for this post came as I was doing research for my last blog post on Canada’s place in the Inter-American Human Rights System. In my reading, I learned that Article 4(1) is frequently cited as a potential obstacle for Canada’s ratification of the American Convention of Human Rights. The article reads:

Not just work: I got to go hiking in Rincón de la Vieja National Park in the province of Guanacaste one weekend.

Article 4: Right to Life

  1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.[i] (emphasis mine)

… What??? I could not believe my eyes. In my opinion, the right to end a pregnancy (whether potentially dangerous, unviable, or simply unwanted) is intrinsically linked to bodily autonomy and gender equality. How could an international human rights instrument include such a clause that undermined gender equality? I was flabbergasted.

Article 4(1) of the American Convention reminded me of the 8th amendment to the Constitution of Ireland, which was repealed in 2018. The amendment read:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.[ii]

Savita Halappanavar, Irish Times

As a feminist, and as an Irish woman, I have had strong feelings about abortion since I was an undergraduate student. I was living in Ireland in the fall of 2012, when Savita Halappanavar died of sepsis in an Irish hospital after doctors refused to terminate her pregnancy. Even though it was a much-wanted pregnancy, she was having a miscarriage that quickly became a danger to her life.[iii] Her doctors refused to accelerate the end of her pregnancy because the fetus still “had a heartbeat,” while hospital staff reportedly told her husband that Ireland was a “Catholic country.”[iv] Protests ensued. Feminists replied that “she had a heartbeat too.”[v]

At the time, Ireland had one of the strictest abortion laws in Europe.[vi] The public outrage at the injustice done to Ms. Halappanavar and the tireless effort of feminist groups eventually led to a successful 2018 referendum to repeal the 8th amendment and legalize the procedure in the Republic, now allowed regardless of reason until 12 weeks gestation. The Irish Times wrote after the vote that “[m]any point to a young woman called Savita Halappanavar as the reason they became revolutionaries.”[vii] I guess I could say the same of myself.

“ABORTO YA” (“ABORTION NOW”) graffiti on my way to work in San José, painted in the same green colour used by the Argentinean movement.

Abortion has long been a controversial issue in Latin America, home to some of the most restrictive abortion laws in the world. The Center for Reproductive Rights, an NGO that uses law to advance reproductive rights as fundamental human rights around the world, writes:

Latin America and the Caribbean are home to some of the most restrictive and punitive abortion laws in the world. In El Salvador, Haiti, Honduras, Nicaragua, Dominican Republic, and Suriname, abortion is completely illegal—with no exception. In El Salvador, the government has taken this even further and interpreted the law such that women are imprisoned for obstetric emergencies out of suspicion of their having had an abortion. In Guatemala, abortion is criminalized in all instances except when a pregnant woman’s life is at risk, which is typically interpreted to mean immediate and imminent death.[viii]

In recent weeks abortion has been a hot topic in Latin America from Guatemala to Argentina. On May 29th, four women from Nicaragua, Ecuador, and Guatemala filed complaints against their respective governments before the UN Human Rights Committee, represented by the Center for Reproductive Rights.[ix] The women were all under 14 years old when they became pregnant as a result of rape perpetrated by older men. They argue that their lives were put at risk when their governments denied them abortions.

Activists hold green handkerchiefs, which symbolizes the abortion rights movement, during a rally to legalize abortion, outside the National Congress in Buenos Aires, Argentina May 28, 2019. REUTERS/Agustin Marcarian

There is more optimism happening in Argentina, where on May 28th, when an attempt to legalize abortion was introduced to Argentina’s congress for the 8th time. Last year, a similar bill passed the House of Deputies but was narrowly defeated in the Senate.[x] One of the loudest opponents of the effort to legalize abortion is the Catholic Church: on May 25th Pope Francis, who is Argentinean, compared abortion to “hiring a hitman.”[xi]

An Argentinean colleague at the Court, named Nina, told me that she wished she could be home to participate in the demonstrations in favour of the bill, which have come to be symbolized by the pañuelo verde (green hankerchief) that pro-choice protesters wear. Currently, abortions are available in Argentina only in cases of rape and when the mother’s health is at risk.[xii] However, in practice, many women are not able to access the care they are allowed by law. In February of 2019, a 12-year-old girl was forced to deliver a baby by cesarean section after hospital and government administrators blocked her request for an abortion. She had become pregnant after being raped by her grandmother’s boyfriend.[xiii] A similar abortion law also failed to save Savita Halappanavar in Ireland.

My work colleague, Nina, with her symbolic pañuelo verde that she wears to pro-abortion demonstrations in her home city of Córdoba, Argentina.

Given this context of strict abortion laws, it is perhaps unsurprising that there would have been pressure to include a provision such as Article 4(1) in the drafting of the American Convention. In the case Baby Boy vs United States of America (1981), the Inter-American Commission on Human Rights talked about the origins of the clause.[xiv] The American Convention was preceded by the American Declaration on the Rights and Duties of Man. Canada accepted the American Declaration when it became a full member of the OAS in 1990, although it didn’t participate in the drafting of either document. Article 1 of the Declaration made no mention of conception. According to the Commission, the preliminary draft of this article protected life from the moment of conception, but was dropped in the final version due to the objection of states that permitted abortion in some circumstances (Argentina, Brazil, Costa Rica, Cuba, Ecuador, Mexico, Nicaragua, Paraguay, Peru, the United States, Uruguay, and Venezuela at the time).[xv]

According to the Commission in Baby Boy, the first draft of the American Convention sought to protect life from the moment of conception. However, the words “and, in general” were added by majority vote of the Council of the OAS to accommodate states that permitted abortion in cases such as “to save the mother’s life, and in the case of rape.”[xvi] Some states, such as Ecuador, objected to this change.[xvii] Given this history, the Commission firmly established that the right to life from the moment of conception is not absolute.[xviii]

After Baby Boy, there was no jurisprudence on the subject of the rights of embryos under Article 4(1) until the 2012 case Artavia Murillo and others vs. Costa Rica, which related to the legality of in vitro fertilization.[xix] In Artavia Murillo, the Inter-American Court said that the addition of the words “and, in general” means that the right to life from conception is not absolute, but rather is gradual and evolves along with the development of the fetus.[xx] The Court also concluded that it was impossible to consider an embryo to have full legal personhood, and noted that no other international human rights instruments grant personhood to the unborn.[xxi]

Nevertheless, Article 4(1) has been pointed out as a potential obstacle to Canada’s adherence to the convention. In 2003, there was a Senate Commission on Canada’s involvement in the Inter-American system. The Commission said:

Even though article 4(1) does not impose an obligation to prohibit abortions, it may impose an obligation to regulate them. However, at the moment, there is no Canadian legislation or regulation with respect to abortions. The Supreme Court of Canada found in R v Morgentaler that the procedure created under section 251 of the Criminal Code for obtaining an abortion was incompatible with a woman’s right to the security of her person. No new provision has been adopted to replace s. 251.[xxii]

Despite this concern (and others), the Senate ultimately recommended that Canada join the system.[xxiii] Sixteen years later, Canada’s law on abortion has not changed, and therefore, in my opinion, the concerns of the Senate Committee remain valid.

This photo with the flag of the Organization of American States was taken in the room where the judges of the Court deliberate important cases such as Artavia Murillo and others vs. Costa Rica.

Even with the limits on Article 4(1) circumscribed by the Court, I do not think that the right to life as set out in the American Convention is compatible with Canadian law on the subject of abortion. Bernard Duhaime writes in “Ten Reasons Why Canada Should Join the ACHR” that the interpretations of the Article in Baby Boy and Artavia Murillo bring the Article in line with obligations of other human rights treaties ratified by Canada, and would not pose an obstacle for Canada’s acceptance of the Convention.[xxiv] I respectfully disagree. It is clear from the jurisprudence that Article 4(1) allows abortion in some circumstances, such as in the case of rape and to save the life of the mother. However, the jurisprudence is silent on whether the Article permits the termination of a pregnancy that is simply unwanted, as is currently allowed in Canada. Duhaime does acknowledge that “any remaining concern could also be addressed by entering a reservation or an interpretative declaration as to specific aspects of the American Convention, when adhering to it.”[xxv] On this point I agree: any adherence by Canada would require such a reservation, which would relieve Canada of the obligation of Article 4(1).

In conclusion, the lack of protection of a women’s right to end a pregnancy is a pressing issue in Latin America, from Argentina to Mexico, and, increasingly the United States as well (but that’s another issue[xxvi]). The American Convention, unfortunately, does little to protect women’s reproductive rights due to the protection of a fetus’s right to life in Article 4(1). Clearly, the Inter-American Human Rights System allows abortion in at least some circumstances, but it is not clear whether a legal framework such as Canada’s would be allowed. Consequently, if Canada were to ratify the American Convention, it would be essential to include a reservation with regards to Article 4(1). The complex topic of abortion in the Americas, therefore, should not necessarily prevent Canada from playing a bigger role in the Inter-American Human Rights System.

—————

[i] American Convention on Human Rights, available at: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm

[ii] Constitution of Ireland, available at: https://www.gov.ie/en/publication/d5bd8c-constitution-of-ireland/?referrer=/DOT/eng/Historical_Information/The_Constitution/Constitution_of_Ireland_-_Bunreacht_na_h%C3%83%E2%80%B0ireann.html

[iii] BBC, Woman dies after abortion request “refused” at Galway Hospital, 14 November 2012, https://www.bbc.com/news/uk-northern-ireland-20321741

[iv] Ibid.

[v] See, for example, Ann Rossiter, “‘She Had A Heartbeat Too’: The Tragic Death of Savita Halappanavar in an Irish Hospital,” 21 Jan 2013, Feministing, http://feministing.com/2013/01/21/she-had-a-heartbeat-too-the-tragic-death-of-savita-halappanavar-in-an-irish-hospital/

[vi] For a comprehensive look at the state of abortion rights in the world, see: Center for Reproductive Rights, “The World’s Abortion Laws 2019,” updated in real time, http://worldabortionlaws.com/

[vii] Kitty Holland, “How the death of Savita Halappanavar revolutionised Ireland,” The Irish Times, 28 May 2018, online: <https://www.irishtimes.com/news/social-affairs/how-the-death-of-savita-halappanavar-revolutionised-ireland-1.3510387>.

[viii] Center for Reproductive Rights, “They Are Girls: Reproductive Rights Violations in Latin America and the Caribbean,” 2019, online: <https://www.reproductiverights.org/document/just-girls-reproductive-rights-violations-in-latin-america-and-the-caribbean>.

[ix] The Guardian, Latin America rape survivors who were denied abortions turn to UN, May 29, 2019, online: <https://www.theguardian.com/global-development/2019/may/29/latin-american-survivors-who-were-denied-abortions-turn-to-un>.

[x] BBC, “Argentina abortion: Senate defeats bill after polarising debate,” 9 August 2018, online: <https://www.bbc.com/news/world-latin-america-45125687>.

[xi] Semana, “‘Abortar equivale a contratar un sicario’: Papa Francisco,” 25 May 2019, online: <https://www.semana.com/mundo/articulo/papa-reitera-que-abortar-es-igual-a-contratar-un-sicario/617162>.

[xii] Walter Bianchi, “Argentine activists try again with new bill to legalize abortion,” Reuters, 28 May 2019, online: <https://www.reuters.com/article/us-argentina-abortion/argentine-activists-try-again-with-new-bill-to-legalize-abortion-idUSKCN1SY2NO?>.

[xiii] El País, “Obligada a dar a luz por cesárea otra niña argentina que había sido violada y pidió un aborto,” 28 February 2019, online: <https://elpais.com/sociedad/2019/02/27/actualidad/1551292176_461936.html>.

[xiv] Baby Boy vs United States of America [1981], Inter-American Commission on Human Rights, Res 23/81, Case 2141, online: <http://www.cidh.org/annualrep/80.81eng/USA2141.htm>.

[xv] Ibid., at paras 18-19.

[xvi] Ibid., at para 25.

[xvii] Ibid., at para 29.

[xviii] Ibid., at para 30.

[xix] Artavia Murillo and others vs. Costa Rica, Decision 28 November 2012 (Preliminary exceptions, merits, reparations and costs), online: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_257_ing.pdf>.

[xx] Ibid., at paras 188 and 264.

[xxi] Ibid., at para 223.

[xxii] Senate, Report of the Standing Senate Committee on Human Rights, “Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003), online: <https://sencanada.ca/content/sen/Committee/372/huma/rep/rep04may03-e.pdf >, at p. 43.

[xxiii] Ibid.

[xxiv] Bernard Duhaime, “Ten Reasons Why Canada Should Join the ACHR,” Revue générale de droit, Vol. 49 (2019), at p. 196.

[xxv] Ibid, at p. 197.

[xxvi] The Guardian, “US abortion policy is ‘extremist hate’ and ‘torture’, says UN commissioner,” 4 June 2019, online: <https://www.theguardian.com/global-development/2019/jun/04/us-abortion-policy-extremist-hate-torture-un-commissioner-kate-gilmore>.

Canada and the Inter-American Court of Human Rights

Kelly O’ConnorBy Kelly O’Connor

On May 8th I flew to San José, Costa Rica to start my internship at the Inter-American Court of Human Rights. Despite arriving at the beginning of Costa Rica’s rainy season – which Costa Ricans call invierno (winter) – the warmth and humidity was a welcome change from Montreal’s still-lingering winter. I spent my first days here settling in: finding the nearest supermarket, exploring the San Pedro neighbourhood where I live, and making new contacts with friends-of-friends who live in the city.

The Inter-American Court of Human Rights has a permanent internship program, which runs in three sessions: September-December, January-April, and May-August. The Court allows the interns to choose their start and end dates, so the interns all have slightly different start dates. The coordinator of the internship program put all the interns for the May-August period in touch via email, and we have since been corresponding through a WhatsApp group chat (if you’ve spent any time in Latin America, you know that WhatsApp groups are the preferred method of communication… even in a professional context, to my great surprise!). Most of the approximately 25 interns had already started their internships, 5 of us starting on Monday, May 13th.

My first day at the Inter-American Court of Human Rights

On the Friday before starting my internship, my future colleagues who had already begun wrote in the WhatsApp group that they were planning to meet up for a sort of 5 à 7 at a Venezuelan restaurant in the trendy Escalante neighbourhood. Having already arrived in San José, I decided to join them. I was nervous to meet all my future colleagues for the first time (not to mention to chat with them in my third language!) but I felt immediately welcomed into the group. I haven’t met all the other interns yet, but those who I met hailed from Argentina, Colombia, Costa Rica, Mexico, and Peru.

At the event, my new colleague, Manuel from Argentina, asked me if Canada recognized the competence of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. To my great embarrassment, I realized I didn’t definitively know the answer, despite spending the last two years learning about the Court and immersing myself in its jurisprudence. I knew that Canada was not a member of the Court, but I was not sure of its relationship to the Commission. So, I decided to inform myself, and hopefully any future intern who might read this post!

With Manuel and some other colleagues, taking a break to taste Argentinean mate (a kind of tea)

To this end, I consulted an article called “Canada and the inter-American human rights system: Time to become a full player” by Bernard Duhaime, one of the most well-known Canadian legal scholars who focuses on human rights in the Americas. [1] It’s a great starting point for anyone who wants to know more about Canada’s place in the Inter-American Human Rights System.

I already knew, of course, that Canada has been a full member of the Organization of American States (OAS) since 1990. As a member of the OAS, Canada has an obligation to respect human rights contained in the OAS Charter and the American Declaration of the Rights and Duties of Man. I also knew that Canada has not signed or ratified the American Convention on Human Rights, which is the main international human rights instrument for the Americas and also establishes the Inter-American Court of Human Rights.

What I did not know was that when Canada became a member of the OAS, it also accepted the competence of the Inter-American Commission to “formulate recommendations to member states and to receive and process individual petitions” against states. [2] However, since Canada has not ratified the American Convention, the Commission can only consider petitions that claim violations of provisions of the American Declaration. Many provisions in these two instruments are similar.

Actions against Canada make up only 0.4% of the petitions presented before the Commission. In another, more recent article, Duhaime presents a brief overview of reports by the Commission that concern Canada:

Very few individual actions have been brought against Canada before the Commission, which has only adopted three Canadian decisions on the merits, six on admissibility, and three on inadmissibility. The IACHR has also published two thematic reports on Canada, the first concerning the Canadian Refugee Determination System (2000) and the second on Missing and Murdered Indigenous Women in British Columbia (2014). [3]

Of these, the Commission has only decided one case against Canada: Manickavasagam Suresh v Canada (2016), which concerned judicial review of immigration detention for a refugee found inadmissible to Canada on the grounds of national security, but who would risk torture upon return to his country of origin.

I brought this information back to Manuel, but he immediately asked me: Why? Why did Canada decide to join the OAS and ratify the American Declaration, but did not adhere to the American Convention? I had a feeling that the reason was political: as a student of human rights I am aware of some of the hot-button human rights issues in Canada, such as the state’s relationship to Indigenous peoples and our immigration and refugee system. I thought that maybe Canada wanted to avoid having its dirty laundry displayed on the world stage, with possible repercussions for its image as a human rights defender. I found that the answer is much more complicated than I thought.

In researching this topic I happened upon a special issue of the Revue générale de droit entitled “Canada’s Role in Protecting Human Rights in the Americas.” In this issue, the Honourable Marie Deschamps, former justice of the Supreme Court of Canada, warns of problems that Canada could face if it were to join the system in “L’approche canadienne : assurer la protection des droits de la personne de façon distinctive.” [4]

Deschamps points out that Canada has long hesitated to get involved in the Inter-American system. While the OAS Charter was adopted by in Bogotá in 1948, Canada didn’t join the OAS as an observer until 1972, and not a as a full member until 1990. The American Convention has been in effect since 1978, but Canada has still not signed, let alone ratified it. [5]

Deschamps argues that there are good reasons for Canada’s reticence, pointing out problems with the Inter-American Human Rights System and identifying potential problems of incompatibility with Canadian law. [6] Her main issues are:

  1. The IACtHR’s use of “creative” remedies to human rights violations and its procedures for monitoring compliance with its decisions
  2. Long delays between first complaint and final decision from the IACtHR

First, Deschamps points out that the IACtHR has a history of identifying “creative” remedies for human rights violations beyond pecuniary damages. For example, in the case Favela Nova Brasilia v Brazil, the Court required Brazil to undertake some unconventional remedies such as publishing a summary of the decision on the government’s Twitter and Facebook pages and creating and implementing a training program on sexual violence for police officers and health care workers. Deschamps suggests that these types of “creative” remedies are not compatible with Canada’s separation of powers, citing Canada c Khadr (2010) [7]. On a similar note, Deschamps observes that, while supervision of compliance with Court decisions is de rigueur in the Inter-American System, such actions are only undertaken by Canadian courts in very exceptional circumstances, per Doucet-Boudreau v Nova Scotia (Minister of Education) (2003), also due to the separation of powers [8].

Second, Deschamps cites long delays between the first complaint and the Court’s decision, which can stretch more than 20 years in the Inter-American System. These fall well outside the “reasonable” 18-month deadline set by the Supreme Court of Canada in R v Jordan (2016) [9]. I also found out that in 2003 there was a Senate Commission on Canada’s involvement in the Inter-American system, which cited these long delays as a worry but ultimately recommended that Canada join the system. [9]

In addition to the above, the Senate report expresses concern about Article 4(1) of the American Convention, which protects the right to life, “in general, from the moment of conception” and which appears prima facie to contradict Canadian jurisprudence on the subject of abortion as provided in R v Morgentaler (1988). [10]

Visiting San José’s Parque Metropolitano La Sabana on the weekend

Through my research for this blog post, I discovered that the question of whether Canada should adhere to the American Convention and recognize the competence of the Inter-American Court of Human Rights was much more complicated than I had thought. I was persuaded by some of the arguments presented by Justice Deschamps, and I find myself particularly concerned about Article 4(1) of the Convention. I guess my next step would be to research the arguments in favour of Canada’s adherence to the Convention and the potential impact of Article 4(1). I think I would like to dive more deeply into my internship, the jurisprudence, and arguments for and against before I make a decision on this topic.

In the meantime, I will keep learning and exploring. Until next time!

 

—————-

[1] Bernard Duhaime, “Canada and the inter-American human rights system: Time to become a full player,” International Journal, Summer 2012.

[2] Ibid, at p 641.

[3] Bernard Duhaime, “Ten Reasons Why Canada Should Join the ACHR,” Revue générale de droit, Vol. 49 (2019), at p 189.

[4] Marie Deschamps, “L’approche canadienne : assurer la protection des droits de la personne de façon distinctive,” Revue générale de droit, Vol. 49 (2019).

[5] Ibid, at p 37.

[6] Ibid, at p 38.

[7] Ibid, at p 39.

[8] Ibid, at p 39.

[9] Senate, Report of the Standing Senate Committee on Human Rights, “Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003), online: <https://sencanada.ca/content/sen/Committee/372/huma/rep/rep04may03-e.pdf >.

[10] Ibid.

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