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What We Take for Granted…

By Leila Alfaro

The beautiful Andes, somewhere south of Mendoza

July 22nd, 2019

This is my last week in Mar del Plata. The last month has been tough for my family and me, as we have struggled with maintaining our Argentinian routine, so different from our regular one, and have been feeling homesick, missing our family and friends. I am very excited to head back home, but I am also very thankful for my time here, for the encounters I have had, the things I have learned, the places I have visited and the memories I have made. As the weeks progressed, I often had to fight the disconcerting thought that my presence here would ultimately prove to be useless and that in the end, I would realize just how little I had accomplished this summer.  I partly blame this on the slow pace of life here but these fears, certainly, were also anchored on the notion of just how complex issues pertaining to disability rights are, and that there is no single way of tackling them without eventually uncovering further underlying issues of a more complex nature. Exploring the field of disability rights, namely in a country with a fragile economy, proved to be beyond frustrating at times. A cloud of helplessness and desolation was hanging constantly over my head, as I had to come to terms with the extent to which ableism is embedded in the structures of society and just how limited the impact of rights and laws on paper can be, when there is simply so much that has to change in order to guarantee a dignified life for members of such marginalized group.

While I had no experience whatsoever in the field, especially in the Argentinian context, I found myself learning so much, so quickly. By learning from the situation in this foreign country, I inevitably felt the urge to find out more about the reality back in Canada. One of the most interesting moments in the context of the workshops with people with disabilities was when I was able to present a brief overview of how Canada approaches voting rights for people with disabilities. By communicating the reality of my country, I was able to share interesting links, like how the issue of an aging population has an incidence on the existing efforts of accommodation.

Curiously, when I elaborated on how there is still much to accomplish in Canada as well, I was met with what felt like skepticism. Argentinians certainly hold Canada in high regard, since they see our institutions as well-funded, efficient and “serious”. The irony is not lost in me, that as much as they admire said efficiency, they do not seem interested in a more rapidly-paced lifestyle. Indeed, such tradeoffs are inevitable, and we are not always in a position to be adequately critical of them given our own biases and perspectives which are ultimately limited by our personal realities.

Being abroad, I have mostly been able to reflect on the things I take for granted (like the people who are part of my daily life, the comfort of my home or some of my favourite foods!), but I have also learned about what people here take for granted. As I have become interested in the topic of voting rights for people with disabilities, I have begun working on a research project of my own. As I debated on which topic to present to the Centre for approval, I ultimately felt the strong urge to address the mandatory aspect of Argentinian suffrage. I found it fascinating how the people with whom I interacted could be so comfortable communicating their own frustrations regarding their system yet seemed very willing to justify it when I would question factors such as mandatory voting. I was surprised to find that virtually no literature exists on the subject in relation to disability (I was told there had been some kind of project done in another university that tackled this issue, but I have yet to learn more about it). I quickly became under the impression that, while Argentinians do recognize the particularity of their voting system in this regard (mandatory voting), they are quite satisfied with it. When it comes to discussing and promoting the ability to vote, basically no attention was brought to how the principle of mandatory voting might also impact persons with disabilities. This notion exemplifies the degree of ableism in society in terms of what the State expects from its citizens, seemingly ignoring the existing gap between those who have impairments and those who do not have any.

While I was pleased to hear that my research project relied on a novel outlook of the situation, I expect to gain more insight on the underlying ambiguities of mandatory voting, especially given the historical context of the Argentinian political scene. In elaborating on this topic, I hope to encourage other researchers and clinical workers to become more sensible to how the obstacles people with disabilities face are linked to more complex structural factors of society that we tend to take for granted.

My going-away dinner with members of the Extension Group on Voting Rights for PWD, comprised of graduate students and faculty from multiple fields

 

The last workshop in which I participated, especially tailored for people with visual impairments

Robes and Backpacks: When an International Human Rights Tribunal Goes in the Field

Kelly O’ConnorBy Kelly O’Connor

My internship took an unexpected turn when, halfway through the summer, the Inter-American Court of Human Rights (IACtHR) announced that its next session of hearings, from August 26th to September 6th, would not take place in San José as planned. Instead, they would be a “special session” or “extraordinary session” in Barranquilla and Bogotá, Colombia.

Day 1 of the IACtHR’s Special Session in Barranquilla, Colombia

Interns are allowed to attend the extraordinary sessions of the Court, they often don’t because they must undertake all the travel planning and expenses themselves. Coincidentally, I had happened to book a holiday to Colombia to visit family after my internship before the extraordinary session in Colombia was even announced. The dates coincided perfectly, so I decided to take advantage of the chance to see what happens when an international human rights tribunal goes in the field.

The Court holds hearings four times per year on-site in San José (called “ordinary sessions”) but since 2005 it sometimes adds sessions on-location in countries that have ratified the American Convention on Human Rights (these are called “extraordinary” or “special” sessions). You can see the list of past sessions here. Unusually, there weren’t any ordinary sessions scheduled during my internship at the Court. This was why I made the effort to go to Colombia: I wanted to see the Court in action!

 

The Role of the IACtHR in Guaranteeing Human Rights in the Hemisphere

Colombia’s President, Iván Duque, makes a speech at the inauguration of the Special Session.

The hearings in Barranquilla were open to the public and held in a university, the Universidad del Norte. The first day, August 26th, consisted of the inauguration ceremony for the special session and a one-day seminar on the role of the Court in guaranteeing human rights in this hemisphere. When I arrived, I noticed that security was tight. There were a lot of police officers and each guest had to present identification. When I got into the auditorium where the sessions would be held, I was very impressed: the room was huge! There must have been 1000 seats and they were all full. I soon found out the reason for the extra-tight security as well. Colombian president Iván Duque had made the trip to Barranquilla to deliver a speech and open the session. Before President Duque, Adolfo Meisel, the Rector of the Universidad del Norte and Eduardo Ferrer Mac-Gregor, the President (Chief Justice) of the Court gave their remarks.

I was really inspired by Justice Ferrer’s remarks, in which he named what he sees as today’s most significant challenges to human rights:

  1. Persistent poverty, especially considering that Latin America is the most unequal region of the world;
  2. Discrimination and violence against women, as well as the exclusion of women from decision-making;
  3. Migration crises (specifically in Venezuela and Central America), where we face a crisis of migration as well as solidarity;
  4. Climate change and its specific impact on the most vulnerable populations;
  5. Organized crime and violence which are an increasingly large threat to the region; and
  6. Authoritarianism, and discourse that aims to restrict rights and freedoms, recognizing that democracy requires a diverse range of views, but cannot exist when certain groups are labelled enemies of the state or when we allow hate speech.

Justice Ferrer also explained the purpose of the Court’s special sessions, of which 30 have taken place in 19 different countries. Colombia is the country who has hosted the largest number of special sessions: 5 in total (two in Bogotá, one in Medellín, one in Cartagena, and now in Barranquilla and Bogotá again). He said the special sessions are important because it facilitates the work of the Court, both by bringing the system closer to the victims of human rights violations (such as when the court holds hearings to monitor a state’s compliance with its previous decisions), but also brings people closer to the system, facilitating a useful dialogue between the Court, governments, and civil society.

Here you can see the size of the audience at the Court’s inauguration.

In the first panel discussion, a reflection on 40 years of interpretation and application of the American Convention on Human Rights by the Court, Professor Mariela Morales from the Max Planck Institute gave a very interesting overview of the history of the Court and its unique contributions to the development of international human rights law. She mentioned that the Court is unique because it is a “Corte de toga y mochila” (a Court with robes and backpacks), as it travels to member states to hold hearings, echoing the comments of Justice Ferrer. She explained how the Court was born from the aftermath of the wave of military dictatorships in Latin America around the 1970s and 1980s, and how due to this history, one of its first contributions to international human rights law was developing a legal framework on how states must respond to forced disappearances.

Indeed, I noticed a strong thread of public legal education throughout the sessions. A printed program on each seat in the auditorium included the “ABC’s of the Inter-American Court of Human Rights”, a short guide to the structure and purpose of the Court. The whole first day was geared towards people who maybe didn’t have a 100% familiarity with the system, complete with explanations of the purpose and history of the Inter-American Human Rights System. You can see video recordings of all the seminars and public hearings here. As the sessions took place on a university campus, I noticed groups of students wandering in and out of the auditorium to listen to the seminars and hearings between their classes.

Justice Odio Benito speaking about the 25th anniversary of the Belem do Pará Convention.

My favourite panel was reflecting on 25 years since the ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (also known as the Belem do Pará Convention). It was moderated by Justice Elizabeth Odio Benito, the only woman judge currently sitting on the IACtHR. Justice Odio’s opening remarks touched on how much progress has been made in terms of women’s rights in the past 25 years, but also that we have a long way to go.

The first speaker was Julissa Mantilla, a commissioner-elect of the Inter-American Commission on Human Rights (IACHR). She spoke about the need to develop a further framework to look at the presence and impact of sexual violence specifically as a part of forced disappearance and in truth commissions. She raised 5 important points when it comes to women’s rights in the Americas: 1) we must always use a differentiated analysis consider the specific impact on women in human rights issues; 2) it is important to note the impacts of intergenerational trauma; 3) violence against women is seriously under-reported; 4) the IACHR now has more women than men serving as commissioners, but we still need to make progress in the representation of women as decision-makers; 5) femicide (intentional murder of women) is still a huge problem in society, and in order to tackle it we need to remember that it is not a women’s issue, but rather a human rights issue that is a problem for everyone.

I was also really interested in the talk by María Paulina Riveros Dueñas, who was until recently the Deputy Attorney General of Colombia. She talked about how gender issues were incorporated into the negotiations of Colombia’s historic peace agreement with the Revolutionary Armed Forces of Colombia (FARC), which ended more than 50 years of war in the country (the peace agreement has hit a big bump in the road this week, after Ms. Riveros’s talk). Ms. Riveros that the peace agreement was revolutionary for the way it gave women’s groups and victims’ representatives a seat at the table. She pointed out three significant developments related to gender that came out of the agreement: 1) it underlined the importance of helping victims heal and move beyond the state of being a victim in transitions from war to peace; 2) the Truth Commission created by the agreement has a specific working group charged with completing a gender-differentiated analysis of the conflict; and 3) the agreement created a gender research group as part of Colombia’s Special Jurisdiction for Peace (JEP), which is a special tribunal created to implement transitional justice in Colombia.

 

Azul Rojas Marín vs. Perú

I sat with the Court’s Registrar (Secretario), Pablo Saavedra, and my supervisor to assist with the hearing of Rojas Marín vs. Perú.

On August 27th I had the chance to help out with the morning and afternoon hearings of the Inter-American Court of Human Rights in the Case Azul Rojas Marín vs. Perú. I was a little more involved in helping out with this particular case as my supervising lawyer was the Court’s point-person on this file. The case is about violence motivated by discrimination against a member of the LGBT community, and also questions how we define torture in international law. The Inter-American Commission on Human Rights (IACHR) considered that Peru had violated its obligation to protect victims of sexual violence, with the aggravating factor of prejudice against members of the LGBT community.

I had learned a lot about the Court and how it functions over the course of my internship, but it was definitely a different experience to see a hearing in person. One thing that really stood out to me was how the Court hearings involve three parties: the State, the victims and their legal representatives, and the Inter-American Commission. It makes a big difference to be in a courtroom with three parties instead of just two, as I am used to seeing in Canada.

If you’re familiar with the procedure of the IACtHR, you know that victims cannot present complaints directly to the Court. Rather, they must first approach the Commission. The Commission will make a determination of whether the State was in violation of its regional obligations and make recommendations. Then, if necessary, it will refer the matter to the Court for a binding ruling.

As such, in hearings of the Court, the Commission is the first of the parties to speak, presenting a summary of the case. Then the victims’ representatives and the State make their oral arguments. Finally, all three parties have the chance to make final statements and respond to the arguments of the other parties. The judges have a chance to ask questions to the lawyers after each party’s allotted time. I didn’t observe judges interrupting lawyers with questions as often happens in Canadian courts: rather, they hold their questions until the end.

 

A successful innovation

The Special Session was highly publicized on social media, with this logo.

In 2009, Pablo Saavedra, the Court’s registrar, and Gabriela Pacheco, a former lawyer for the Court, wrote that Special Sessions “have been the most innovative and successful initiatives created by the Court” (my translation). The primary benefit they site of these sessions is that they facilitate the work of the Court. On the one hand, they permit the Court to hold more hearings per year and process more cases. On the other hand, they permit the Court to interact with internal state organs of the countries concerned, which fits with the Court’s belief that respect for human rights is primarily an obligation internal to States. Finally, they are accompanies by training and education in human rights for state agents and civil society, as I experienced in Barranquilla, which empower individuals to use the Inter-American Human Rights System.

Overall, I count myself extremely lucky to have had the chance to travel to Colombia to observe what happens when an international human rights tribunal packs up its robes and heads into the field. Having seen the Court in action, I am convinced that its special sessions are an important part of its work, as they bring the Court closer to the communities it serves and give the legal community and the general public the opportunity to learn about the Inter-American Human Rights System. Because of the Special Sessions, it is truly a corte de ciudadanas y ciudadanos (a court of the people).

Living my best student life while grabbing lunch on campus at the Universidad del Norte, where the Special Session took place.

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.

The EU, Trade and Human Rights in Cambodia: An Uncertain Future

By Adelise Lalande

Food stalls in the Russian Market.

I have never been much of a fan of dentists, and yet I now find myself living in an apartment building owned by a (seemingly) charming Cambodian professional who runs his practice out of the first floor. My new home is mere steps from Phnom Penh’s famous Toul Tom Poung market, nicknamed the “Russian Market” because of its popularity among Russian expats living in the city during the 1980s, a period when the Soviet Union supported Vietnamese occupiers in their rebuilding efforts after the horrors of the Khmer Rouge regime. Today, set up next to the market’s dozens of street vendors (who sell everything from snails to knock-off designer running shoes) are hipster-certified coffeeshops and a Domino’s Pizza. Indeed, Phnom Penh as a whole is a mix of the old and new. But what has struck me, and others, is that the new is quickly encroaching on the old.

Cambodia has one of the world’s fastest-growing economies, largely due to international trade. In 2017 alone, trade in goods between Cambodia and the European Union (the country’s second largest trading partner) equaled a whopping €6.2 billion. Approximately 99% of Cambodian exports to the EU, including textiles, footwear and agricultural products, are presently eligible for preferential duties. But this could soon change.

In early June, the city’s tight-knit NGO community was buzzing as EU representatives arrived in Phnom Penh to meet with government officials, business people, civil society organizations, activists, and community representatives. These meetings centered on whether the EU would allow Cambodia to remain part of its EBA scheme. Admittedly, I was unfamiliar with what “EBA” even stands for.  Here are a few key points:

  • The EBA: As a least developed country, Cambodia benefits from the Everything But Arms (EBA) trading scheme. Essentially, the EBA gives Cambodia duty-free and quota-free access to the EU Single Market for all goods, except arms.
  • Respect for human rights: In order to benefit from the EBA, a country must (theoretically) comply with international conventions on core human and labour rights—I write this hesitantly knowing that Myanmar, for example, still benefits from the EBA despite ongoing attacks on the Rohingya peoples.
  • Suspension talks: In February 2019, the EU launched an intense 18-month process of monitoring and engagement with Cambodian government officials which could lead to the temporary withdrawal of the country’s EBA status. Why? According to the EU, because of the continued deterioration of democracy and respect for human rights in the country. Specifically, the EU pointed to increasing government crackdowns on political opposition, independent media, human rights defenders and NGOs.
  • Is this an international first? No. Countries that have had their trade preferences temporarily withdrawn for rights violations in the past include Myanmar, Belarus, and Sri Lanka.

My first week of work at LICADHO, I was tasked with legal research related to land tenure insecurity issues in Cambodia. I thus became particularly interested in the EU’s specific concern about land rights violations, many of which are connected to Economic Land Concessions (ELCs). These long-term government leases give private (and generally foreign) corporations the green light to clear land and engage in agro-industrial development. ELCs certainly contribute to economic and job growth, but they also illustrate how the burdens and benefits of development are rarely equitably allocated. Granting ELCs is a profitable practice: the government has made $6.6 million in leasing over 2.1 million hectares of Cambodian land to companies. While a moratorium was announced in 2012, land conflicts linked to ELCs continue to arise and remain unresolved in the country.

Driving past a construction site in Sihanoukville. 

Cambodians affected by land grabbing and forced evictions rarely receive fair compensation for the loss of their homes and livelihoods. They become more vulnerable to malnutrition and forced migration, and are more likely to take their children out of school to have them enter the workforce. Further, land conflicts are linked with the curtailing of freedom of assembly in Cambodia. In March 2018, armed forces opened fire on villagers and farmers protesting their forced evictions and inadequate compensation by a rubber company in Kratie Province. Women and urban poor communities are particularly vulnerable to land tenure insecurity, as are indigenous peoples: I learned that Cambodia has an estimated 455 indigenous communities, and those affected by ELCs have lost subsistence farmlands, spiritual forests and sacred burial sites. Hence, Europe’s concerns about rights violations connected to land in Cambodia are well justified.

An EBA withdrawal would effectively declare to the world that Europe is willing to place democracy and the respect of human rights ahead of trade—a significant declaration albeit one likely to be labelled sanctimonious. A withdrawal would almost certainly create economic turmoil in Cambodia, which could result in even greater hardship for the country’s most vulnerable. Thousands of Cambodians currently work in factories producing goods for export to the EU; should the withdrawal happen, businesses’ efforts to remain competitive (e.g. by decreasing wages) would likely hit workers the hardest. It is also worth noting that greater distance between the EU and Cambodia could increase China’s influence in Cambodian affairs. China is already Cambodia’s biggest trade partner and has heavily invested in large-scale development projects across the country. Given its human rights track record, China is unlikely to act as a government watchdog and apply the same pressures as Europe.

Talks of an EBA withdrawal raise the question of whether a country’s respect for human rights ought to be a prerequisite for trade or, alternatively, whether trade and human rights can be mutually reinforcing. On the one hand, countries that engage in trade with authoritarian, rights-violating regimes help finance (and profit from) these regimes’ actions. On the other hand, the Association of Southeast Asian Nations (ASEAN) has long touted “constructive engagement” with human rights violators as being beneficial for achieving greater individual freedoms in a country.  Jean Chrétien repeated this message while on a trade mission in Indonesia: “Isolation is the worst recipe, in my judgement, for curing human-rights problems.”

Visiting rural Kampot.

While I am certainly no political economist, in my opinion neither position on trade fully withstands scrutiny. I find Chrétien’s opinion to be unconvincing given that Cambodia has benefitted from the EBA (and international trade more broadly) for years and yet its human rights situation continues to deteriorate. Furthermore, based on the work I have witnessed so far, community-led activism and organizing, and the work of CSOs like LICADHO, are largely to thank for the human rights progress that has been achieved in the country; while international support (via diplomacy and trade) is certainly beneficial to grassroots actors, it is insufficient for achieving sustainable change. But, conversely, I also believe that decreased European influence would give the Cambodian government more freedom to shrink the country’s civic space even further.

Ultimately, it remains to be seen what an EBA withdrawal—or, alternatively, a continuation of the status quo—will mean for Cambodians and the protection of their rights moving forward.  My time in the country has been a reminder that, while economic growth is important, it is not in and of itself a development goal.

Aerial shot of the Russian Market.

 

A French-owned pepper plantation in Kampot.

 

Early mornings at the LICADHO office.

 

Weekend trip to Koh Rong Samloem island.

 

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>.

On being “American”

By Sara Gold

My last day in San José, Costa Rica – September 8, 2018

“Along the way we have even lost the right to call ourselves Americans […]. For the world today, America is just the United States; the region we inhabit is a sub-America, a second-class America of nebulous identity” (Eduardo Galeano, Open Veins of Latin America, 1971, p.2)

What does it mean to be “American”? In the English language, this word often refers to the United States rather than to the continent, whose name it derives from. Frustration with this idea has been publicly expressed as early as 1971 by Galeano in Open Veins of Latin America. The concept remains part of present day discourse in the English-speaking world.

No individual better exemplifies this line of thinking than President Donald Trump. Throughout his campaign and in his published foreign policy, he explicitly stated that his “foreign policy is putting the interests and security of the American people first”. [1] Informally, this notion bleeds in our day-to-day speech; I myself have often carelessly referred to the people of the United States as “Americans” or to my travels to the United States as a trip to “America”.

“Being an American, for me, is being born or living in the United States. I’m not sure if it’s because of geography or intention, but firstly, the word South America represents me the best and secondly, Latin America, but not America”.Colleague from Argentina (translated from Spanish)

But what does it mean to be “American”? [2] Interning at the Inter-American Court of Human Rights this summer, working with colleagues from all over the Americas, and then subsequently travelling by land and sea through Costa Rica, Panama, and Colombia allowed me to reflect on this question.

“Being American is a commitment. A commitment of having to bear the burden of unfairness, from the past and the present, but always worrying how to help. Being American is being proud of the mixture of races, ways of thinking and belief systems that constitute the American continent. Being an American is to live life’s hardship and trying your best in dealing with it”.Colleague from Colombia (translated from Spanish)

First, my experience at the Inter-American Court of Human Rights in Costa Rica showed me the implications of a regional human rights protection system. In my opinion, this institution interprets “being American” as being a member States of the Organization of American States (OAS) and as being located on the continent. After all, it is the Inter-American system; all countries are considered as part of the Americas. The decisions issued by this Court have often been tailored accordingly to regional considerations.[3] Unfortunately, they have also reflected the consequences of the tragic side of this continent’s history, which has been marked by conflict, exploitation, and inequality.

Being American is not limited to being born in this great continent, it implies belonging to a great multicultural heritage, full of traditions, and thousands of different ways of seeing the world and living life. Americans enjoys a rich history that continues to be written every day, in which we are all its characters. – Colleague from Mexico (translated from Spanish)

Second, my experience working with colleagues from all over the Americas allowed me to realize that “being American” cannot be defined in one singular way. I worked with individuals from the United States, Mexico, Costa Rica, Venezuela, Panama, Colombia, Chile, Argentina and Brazil. I learnt about their legal systems, their customs, their slang, their prejudices, their food, their realities. I learnt that everyone’s preoccupations are different, but that many are concerned about things that I take for granted, like their country’s democratic process, like their right to safe and free abortion, like their job security, like their future as a young lawyer in their countries, just to name a few. These concerns reminded me of how privileged I am, which is easy to forget in the daily grind of McGill Law and Montreal.

For me, “being American” has a double meaning which, despite the political rhetoric coming out of my country lately, is not mutually exclusive. In one respect, I am American because I am from the United States. I probably think of this aspect of my identity fist when I hear the word “American”, not because I believe that only people from the US are Americans, but because we do not have another word to describe our nationality, and this is the aspect of my identity with which I come into contact most regularly. However, and equally important, I am American because I am also from one of the many rich cultures of the Americas. This aspect of my identity locates me on a global scale and ties me in a much larger community. Colleague from the United States of America

Third, following my internship, I furthered reflected on what it means to be American throughout my travels by land and sea in Costa Rica, Panama and Colombia. In these countries, I witnessed the inequalities that are very much part of the Americas. I listened to individuals tell their stories, list their concerns, reflect on their history, and debate their place in the world today.

These stories led to two current issues that have strongly impacted me. Both are related to migration. The first is the influx of migration of Nicaraguans into Costa Rica, and the extreme racism they face on a daily basis. Second, is the mass exodus of Venezuelans into neighbouring countries. While in Colombia, I encountered many Venezuelans who had left the country, in search of safety and stability. I learnt about what actions countries like Colombia, Ecuador, and Peru are taking in order to try and alleviate the crisis. I wondered what the role of other Americans was in order to help our fellow citizens.

Finally, I realized that being American means sharing your culture with others. On several occasions, I was welcomed into people’s homes (such as my former colleague), shared life stories, and was invited to discover what made their country unique. This generosity allowed me to realize that “being American” does not only mean living in and being from the Americas, but also means being part of a larger community, that shares, that supports, and that helps. Ultimately, as my colleague from Costa Rica put it, maybe the term that should prevail is “human”.

“For me being “American” is a label that is useful for expressing a distinct cultural process that took place in the past. However, it is often used merely for reasons of discrimination, criminalization, stigma, etc. Nowadays it seems to me that the label “American”, “European”, “African”, etc. loses legitimacy as we mix more and more, it is social myopia to deny multiculturalism. In my opinion, the label that must ultimately prevail is “human”. Colleague from Costa Rica (translated from Spanish)

 

My colleagues from all over the Americas 🙂

 

[1] See: https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-foreign-policy-puts-america-first/

[2] Note: I asked five colleagues from the Inter-American Court, all from different countries, to reflect on what it means to be American. Their reflections can be found in the Italic portions of this text.

[3] The Inter-American Court (alongside the Inter-American Commission) were created to “safeguard the essential rights of man in the American continent”. See: http://www.corteidh.or.cr/index.php/en/about-us/historia-de-la-corteidh

 

“Para los pobres, no hay justicia”

By Sara Gold

“There is no justice for the poor”.[1]

All throughout my legal education, I have encountered this statement. In my Law & Poverty class, we examined the many ways laws have contributed to poverty. We discussed how often those in the most precarious of situations find themselves without legal representation due to the expensive fees of lawyers and the various limitations on legal aid in Quebec. When volunteering at McGill’s Legal Information Clinic, I spoke to clients facing hardship who were limited by a confusing and inaccessible justice system. And – at a public hearing during my internship this summer at the Inter-American Court of Human Rights [2], I encountered this statement again – this time directly expressed by a grieving mother who had lost her son.[3]

The Court in session on May 25, 2018.

On March 20, 1999, Walter Munárriz Escobar disappeared after being supposedly detained by police in Lircay, Peru. Although Peru posited that he was released, the Inter-American Commission argued that there was no documentary evidence of that release, that the testimonies brought forward by the State alleging to the release of Munárriz Escobar did not meet the Court’s minimum standards of credibility, and that there was evidence that Munárriz Escobar was subject to physical and verbal abuse while in the custody of the State.[4] Almost twenty years had passed since he disappeared, with the inadequate investigations of the State yielding few results.

During the hearing, I observed the many ways justice is limited for the poor.

First, I watched Munárriz Escobar´s mother, Gladys Justina Escobar Candiotti, testify to how the disappearance of her son changed her and her family´s lives. She declared the above statement in response to an interrogation by one of the judges – this was her first time speaking in a Court – she was never given the opportunity to testify to her son´s disappearance in Peru. She claimed that her family was economically worse-off since he had helped provide for them since her husband had passed. She described her limited access to justice given the many institutional, procedural and legal barriers she encountered throughout the entire process.

Second, as the hearing progressed, I watched the representatives of Peru question Escobar Candiotti. They spoke quickly, in legalese, and showed little empathy. They formulated their questions using complicated words and by making reference to procedural irregularities she knew nothing about. It was clear that Escobar Candiotti did not understand all of their questions.[5] Their inaccessible use of language is another way justice limits the poor – this mirrored the incomprehension I often witnessed parties experience during court visits in Montreal. I thought about whether any guidance was provided to the State representatives on the manner of questioning victims in the courtroom. I wondered if the Court could intervene.  Article 52(4) of The Rules of Procedure of the Inter-American Court of Human Rights indicates than they can.[6]  However, it still remains unclear as to whether this can apply to the victim´s comprehension of a question and to what extent the Court can intervene. Witnessing this part of the hearing reaffirmed my belief that justice is limited for the poor if legal proceedings are tainted with jargon and if legal actors fail to ensure that non-legal actors are fully aware of the nature of proceedings directly affecting them.

Third, I listened to Escobar Candiotti make her closing statements, and emotionally appeal for her son´s remains, declaring that all she wanted was “justice”, “justice to feel closure, justice so that her other children could also feel closure”.[7] The President of the Court directly responded to her plea in pronouncing that “this court administers justice, Inter-American justice”.[8] Witnessing this made me think about how the Court has successfully helped provide a space for so many to achieve justice. The point of public hearings is to allow victims to speak out publicly and to allow for the acts of States and their agents to no longer be shrouded in secrecy. Yet, so many individuals remain left behind. This is exemplified in the statistical data on the activities of the Inter-American Commission on Human Rights (IACHR).[9] In 2017, the IACHR received 2494 petitions. 473 were opened for processing and out of those, 17 were submitted to the Court for adjudication.[10] While cases must first be processed by the Commission, and while they may be resolved before making it to the Court, and while the Court definitely does not have enough resources to hear every case, these circumstances do not preclude the reality that many victims of human rights violations in the Americas are left without the opportunity to even make it to the preliminary stages of the Inter-American system. Only State parties and the Commission can refer contentious cases to the Court. Many are left without the opportunity to seek justice.

My experience so far in Costa Rica has been wonderful. I have been privileged to meet extremely kind, intelligent and inspiring individuals. I feel extremely lucky to be here. However, I won´t forget that day. I keep thinking back to Gladys Justina Escobar Candiotti, and to the Court´s role, and my role within and beyond this internship, in working towards a world where justice is an opportunity for all.

My colleagues and I during the session on May 25, 2018.

[1]See 49:48 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[2] The Inter-American Court of Human Rights is the judicial organ of the Inter-American human rights system. With the Inter-American Commission on Human Rights (IACHR) and under the umbrella of the Organization of American States (OAS), it contributes to the protection of human rights in the Americas.  It is located in San José, Costa Rica. It holds hearings on a part-time basis. For a quick explanation of the Court, please see: http://www.corteidh.or.cr/tablas/abccorte/abc/6/index.html

[3] Public hearing of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018), held at the Inter-American Court of Human Rights on May 25, 2018.

[4] Please see: http://www.corteidh.or.cr/docs/tramite/munarriz_escobar_y_otros.pdf

[5] See 36:50 and 38:14 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[6] Article 52(4): “The Presidency shall have the faculty of deciding the pertinence of questions posed and of excusing the party being questioned from answering, unless the Court deems otherwise. Leading questions shall not be admitted”. Please see:http://www.corteidh.or.cr/sitios/reglamento/nov_2009_ing.pdf

[7] See 57:46 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[8] See 58:20 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[9] Under the American Convention on Human Rights, cases can be referred to the Court by the IACHR or a Member State. The Court is a measure of last resort; cases can only referred to the Court by the Commission once the State has failed to comply with the recommendations made by the Commission in their process.

[10] For 2017 statistics, see:  http://www.oas.org/en/iachr/multimedia/statistics/statistics.html

Reflections on Human Rights Education

By Sara E.B. Pierre

One of the things I loved the most about working at the Institute for Human Rights and Development in Africa (IHRDA) was observing and participating in their capacity-building workshops. I am a big believer in education, and I think it is crucial when it comes to human rights work. IHRDA gives presentations and workshops as part of its education mandate. They also have a mandate to defend, which they do by advocating on behalf of victims of human rights abuses, and to inform, which they do by building a comprehensive database of African human rights legislation.

There is one phrase in particular that one of my supervisors said at a capacity-building workshop back in The Gambia which has stuck with me. In our Critical Engagements with Human Rights class, we have had many discussions about the tension and overlap between international, national and regional human rights norms. Are human rights a Western concept? The answer is no.

The phrase I remember my supervisor saying was at a capacity-building workshop for police officers/prosecutors and social workers on harmful practices against girls and women. He said that harmful practices against women and girls are not part of African culture; “maybe it was a part of our culture 200 years ago, but if you practice FGM (female genital mutilation) or child marriage in Africa now, you are violating our culture.” I think he was trying to show how culture is fluid, and no one state has a monopoly on the concept of human rights. Yes, we may all have slight differences when it comes to writing laws, and this is a good thing. However, the bottom line is that human rights are universal rights, and nothing, not even claims of practicing one’s actual or alleged culture, should get in the way of that.

The capacity-building workshop was prepared by an NGO called Safe Hands for Girls, in collaboration with IHRDA. The theme of the two-day training was harmful practices against women and girls, and we focused on forced marriage, and especially female genital mutilation, or FGM. This last topic was especially difficult to hear about, as the first speaker went into the painful specifics of the operation, complete with real life images. There were no trigger warnings, but there was a moment of individual prayer before the workshop began. Besides talking about how painful the procedure is for infants, children and women, the speaker also explained that how it is done can lead to complications which affect the health and sometimes the life of the person being operated, especially when/if she becomes pregnant.

 

One of my supervisors at IHRDA spoke about women’s rights in The Gambia. He brought up an interesting point: how even though FGM has been outlawed in the country, and there is extensive knowledge that the practice is still widespread (76% of women in The Gambia have suffered through FGM), there have been no cases brought forward. When he brought up the question of how this can be, something interesting happened. A police officer said there have been no cases brought forward because they do not receive reports or complaints. However, a social worker replied that just the other day someone came to her with a report of FGM, and when they tried involving the local police, the police officer did not want to make an arrest for fear of being targeted by the community. I think this situation is all too prevalent and is very useful for showing the disconnect between the law and practice. To me, it shows that human rights work must be rooted in education, and must be contextual. A top-down approach does not work. If we truly want sustainable change, we must first change the attitudes of the perpetrators of the human rights abuses. In order to change peoples’ minds, we have to get to know them.

 

 

Zikomo, Malawi

  By: Julia Bellehumeur

 

Working in Malawi as an intern for the Equality Effect was an amazing experience.  It felt like three months flew by so quickly, yet I was there long enough to develop a strong connection to the country and the people.

Small town at the bottom of our Mt Mulanje hike

 

Poster created for the conference

As noted in my previous blog, one of the main projects I worked on in Malawi was organizing a conference, or as we called it: A capacity building workshop on challenging the corroboration rule for rape.  Quick recap: this “Corroboration Rule” is a discriminatory, colonial rule requiring women and girls to provide additional evidence specifically in cases of rape or defilement. Myself and my co-intern developed the framework for the workshop based on interviews we held with community members involved in sexual offence cases and their perspectives regarding access to justice for survivors of sexual violence, and how the Corroboration Rule factors in.

Following the creation of that framework, I started coordinating every aspect of the conference, including speakers, guests, funding, and logistics.  I learned a lot of unexpected ways to adapt my work habits to be more compatible in Malawi.  For example, Wi-Fi access in Malawi is extremely limited, and scheduling meetings that actually happen even close to on time is very unlikely. It became essential to find new methods of communication so that our work did not remain stagnant.  Instead of sending emails to judges or police officers, I would contact them via WhatsApp, or just simply show up at their offices where we were always warmly greeted.  Once I figured that out, each week I started to plan which days I would devote to taking mini-buses across the city and tracking down everyone with whom I needed to meet.

A few mini-buses driving through Blantyre

Post-yoga morning coffee

In addition to not having Wi-Fi, my office frequently experienced power outages, which meant that I would have to work from home in the evenings to have access to the free (but shoddy) Wi-Fi after 6pm.  Although this seemed like a burden at first, I eventually adapted my schedule to start some work days later after enjoying a morning coffee and a self-directed yoga session in the sun.  I would instead work later into the evening long past the 5pm sunset (until mid-July when evening-long power outages became the norm between 4pm and 9pm).  In Malawi, it became quickly apparent how important (and even sometimes enjoyable!) it is to step outside of my comfort zone and try different strategies when working on any given task.

Working from our Malawian home

The day to day of the “event planning” was so distant from my expectations of what “human rights work” would look like that after getting the hang of things in preparation for the conference, I began to question many aspects of my role.  I never expected to be running around the city between various stationary shops hunting for basic products like nametags, or finding myself negotiating printing prices in the small dingy office of a back-alley building.  I also never expected to be the person meeting one-on-one with young male lawyers who may want to fund our project, or may really just want to chat for a few hours to learn about Canada. And I definitely never expected to be taking the lead on a project as big as organizing this conference for so many people in positions of authority and power in Malawi.  When I was told I’d be heading to Malawi instead of Kenya, I thought I’d be sitting inside at a desk all day researching cases on my laptop with an embarrassing amount of google chrome tabs open. . .   The work I did instead was exciting, but confusing for reasons that I could not understand throughout the rush of it all.

High Court judges among other guests at the conference

On the day of the conference, high court judges, magistrates, lawyers, doctors, social workers, survivors, community members, legal experts, police officers, a psychologist, and a poet all gathered at the Malawi High Court to discuss the Corroboration Rule.  After each local expert’s presentation, I observed engaging group discussions that highlighted the complexities of the topic.  What struck me most was how these conversations evolved from initial discomfort and frustration between sectors, to each sector coming up with creative ways to improve access to justice for survivors of sexual violence in their own respective fields.  This interdisciplinary conversation allowed me to experience how a holistic approach can generate new strategies and perspectives to tackle complex issues.

(See the following link for a local newspaper’s perspective on the conference: http://mwnation.com/challenging-corroboration-rule/ )

Upon further reflection, I began to understand the bigger picture of what I had learned through my internship and my role in planning and attending this conference.  The people of Malawi helped me understand the importance of all the practical aspects, big and small, that go into making legal change relevant in the real world.  Finding ways to engage the community in supporting and understanding any given issue is a huge component of legal change.  Sometimes, that means printing flyers, ordering donuts, and setting up tables.  Other times, it means social workers giving presentations at a school, or to government officials.  But even once the law is changed, there is still a tremendous amount of work that goes into changing community practices and enforcing those laws.  I saw this to be particularly true in the recent banning of child marriages. The constitutional claim my organization is working on needs things like conferences and workshops, education programs, funding, and so much more for the written laws and legal arguments to have any real impact.  We need doctors, police officers, and judges alike to be on board with seeing the law evolve.  By observing the discussions at this conference, I finally understood my role in the project, the skills I developed, and the outcome of my work.

Me and my best Malawian pal, Chimz

While the culture in Malawi is so different from Canada, I realized that the principles of change in this area of law are still very applicable.  Rape myths, social stigmas, and systemic legal barriers are not all that different, although they may be on a different scale. Being open to trying new things and taking a holistic approach to human rights issues through interdisciplinary strategies is also equally important at home.

My experience on this internship was so multifaceted that I’ve been finding it hard to articulate exactly what it is that made it so special.  It’s almost overwhelming to try to dissect and identify the various elements to what I learned and what I am taking away.  I can say, however, that I have never questioned so many things in my life as when I was in Malawi; yet, I have never been so sure that this was exactly where I wanted to be in that moment.  Things came together in a chaotic but ultimately beautiful and satisfying way and I genuinely wouldn’t trade it for anything.

Zikomo & tionana, Malawi <3

 

 

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.

 

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