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Navigating the Ins and Outs of the Yukon Human Rights Act

Garima KariaBy Garima Karia

During my time at the Yukon Human Rights Commission (the “Commission”), I drafted legal memos for the Legal Counsel and Director. The subject matters of these legal memos often arose out of ongoing Commission investigations, or live matters before the Director, which made them both timely and interesting. The memos also often dealt with interpreting and potentially expanding the scope of the Yukon Human Rights Act. In this blog, I will highlight my findings from my largest undertaking during the internship: a memo I drafted on section 12 of the Yukon Human Rights Act. Currently, section 12 of the Act reads as follows:

Systemic discrimination: “Any conduct that results in discrimination is discrimination.”

My colleagues at the Commission and I thought that this definition of systemic discrimination could use some work as it lacks clarity and specificity. Therefore, my task was to do a deep dive into how the term should be defined, and to propose a series of reforms to this section of to the Act that could clarify the definition of systemic racism/discrimination.  To ensure that I proposed a comprehensive set of recommendations, I surveyed all Canadian human rights legislation (provincial, territorial, federal) and jurisprudence to assess if and how other jurisdictions drafted provisions relating to systemic discrimination, and how these provisions were interpreted by tribunals and courts. I also looked broadly at academic commentary on the matter.

I found that, currently, no exemplary definition of systemic discrimination exists in Canadian legislation. However, upon surveying different definitions and interpretations of the term, I identified six key characteristics that, if combined, could make up a comprehensive definition of systemic discrimination. These key elements are the following:

  1. The effect or impact of a policy or act, rather than its intention, is at the crux of systemic discrimination. In other words, if a well-intentioned policy or act has the effect or impact of disadvantageous treatment of a particular protected group, it may be considered to perpetuate systemic discrimination despite its intent.
  2. Facially neutral policies or acts may cause systemic discrimination.
  3. Systemic discrimination is often subtle or “hidden.”
  4. Systemic discrimination is rooted in long-standing social and cultural attitudes and norms.
  5. Systemic discrimination may be embedded or detected in patterns/series/continuing phenomena that have significant cumulative effects. In other words, “the whole is greater than the sum of its parts” when it comes to the collective effect of various instances of discrimination or differential treatment that result in systemic discrimination.
  6. Systemic discrimination often contains an element of intersectionality.

In addition to the Yukon, Manitoba and Saskatchewan are the only other jurisdictions that define or include systemic discrimination in a meaningful way in their human rights legislation. While Saskatchewan’s Code does not include a definition, it empowers its Commission to prevent and address systemic patterns of discrimination. Manitoba’s definition is more specific than Yukon’s in that it includes elements of “effect/impact over intent” and “pattern/series/continuing phenomena resulting in significant cumulative effects,” but is still missing other key elements from the list above. As such, I proposed that a re-formulation of section 12 include all six key elements, as well as a provision that empowers the Commission to tackle the issue of systemic discrimination specifically.

Amending the systemic discrimination provision of the Act is important because manifestations of systemic discrimination undoubtedly make their way into human rights complaints. Even in cases of more “overt” systemic discrimination (e.g. if a pattern of behaviour is apparent or a complainant has been able to track acts of discrimination and their cumulative effect over time), a clear definition of the term and all that it may entail will empower complainants as well as Commissions and Tribunals to better interpret and deal with the impacts of systemic discrimination. Moreover, giving Commissions the agency to address and combat systemic discrimination as part of their mandates may produce creative and productive results.

Through my in-depth research and broad survey of how systemic discrimination has been conceptualized by courts, legislatures, human rights commissions, and academics across Canada, I have identified a list of key features that I argue should be integrated into any legislation or body’s definition of the term. In so doing, these bodies will give courts, complainants, and the public a clearer idea of what systemic discrimination entails, and how we can go about dismantling it.

Human Rights and the Importance of Resources Beyond the Law

By Hannah MacLean Reaburn

The views expressed in this blog are my own.

This summer, I worked remotely with Avocats Sans Frontières Canada (ASFC) and with the Ministry of Justice in Namibia. The experience of working with two organizations was incredibly fulfilling, as I was able to practice my legal skills in a technical sense – through completing research projects, writing reports, and running legal analysis – but also because I was able to experience how the law operates in different contexts.

In a number of ways, the internships were very different, with ASFC being a non-governmental international cooperation organization and the Ministry of Justice being a government office; however, there were similarities in how both organizations approached the law as a tool to facilitate and access human rights. At both organizations, there was a recognition that the law was not the sole answer to the issues at stake and that, while the law is crucial as a resource and shapes the lived realities of many people, human rights work requires engaging with fields beyond the law.

At ASFC, I researched sexual and reproductive health rights for women in Mali, Burkina Faso, and Bénin. As a legal intern, my research focused on legal resources; however, the project itself is collaborative between ASFC, le Centre de Coopération Internationale en Santé et Développement, and SOCODEVI. Legal work alone is not enough to bring sexual and reproductive rights into reality: it also takes health, education, and transportation resources – among many others – for international human rights to become tangible. Though the law is a powerful instrument, it does not operate in a vacuum, and it takes multi-sector commitments to move human rights law from the abstract into reality.

At the Ministry of Justice, I reported directly to the Honourable Minister Yvonne Dausab. This internship experience emphasized for me the importance of journalism and publicly available information as means of facilitating human rights. Between working on projects pertaining to genocide reparations, vaccine access, and immigration, Minister Dausab took time to respond thoughtfully to questions posed by the public through newspaper opinion pieces and articles. To ensure meaningful and clear responses, I was assigned to research topics ranging from judicial independence to presidential discretion in appointing members of the National Assembly. Responding to these questions with such deep consideration demonstrated both the Minister’s respect for the thoughts of the public and recognition that people should be able to ask questions of their governments and have their concerns be taken seriously and responded to in an accessible and public manner.

I completed these internships after my first year of law school and after spending eight months focused on case law and legal reasoning, it was refreshing to see how much the law operates outside of itself. It has been with gratitude and humility that I’ve watched resources and ideas be exchanged between organizations with a variety of expertise in the shared pursuit of human rights.

Digital Transnational Repression: When states use the Internet to stifle dissent across borders

Niamh LeonardBy Niamh Leonard

Beyond studying surveillance technology exports, which I spoke about in my last blog post, the second area of focus for my summer internship has been contributing to the data collection process for an ongoing research project on digital transnational repression.

Digital transnational repression refers to when states seek to exert pressure – using digital tools – on citizens living abroad in order to constrain, limit, or eliminate political or social action that threatens regime stability or social and cultural norms within a country. While transnational repression itself is not a new phenomenon, the development of spyware has made repression much easier than it once was. Instead of having to send agents into foreign countries, governments can now threaten political dissidents across borders using cyberspace.

The Lab’s team has identified that one of the most pressing questions to tackle is how digital transnational repression can be addressed. Targets of digital transnational repression often turn to law enforcement for protection, attempt to use the legal system to seek justice and relief, or ask technology companies for support. However, a lack of coordinated response often makes it difficult for targets to get the support they need. The Lab has been studying possible legal and policy responses to this issue.

As a first step, in November 2020, the team published an annotated bibliography that includes media reports and analysis, technical reports, and academic literature about this emerging phenomenon. The annotated bibliography demonstrates that digital transnational repression is a pervasive problem, affecting individuals from many countries including Bahrain, China, Ethiopia and Iran.

The Guardian’s recent investigation into a leaked list of 50,000 phone numbers believed to be targets of interest of clients of the Israeli spyware company NSO Group only confirms the scale of the problem. The investigation confirms what has been known for years: human rights activists, journalists and lawyers across the world have been targeted by authoritarian governments using NSO Group’s Pegasus hacking software. NSO Group is but one example of the many companies profiting from the sale of spyware to questionable actors.

To further study the impacts of digital transnational repression, the Lab has been conducting interviews with targets and other actors (e.g., journalists, policymakers and technologists) who have knowledge of instances of this phenomenon in Canada.

Throughout the summer, I participated in conducting and transcribing interviews with targets and other actors. I very much enjoyed this part of my work, as each interview was a deep dive into the political situation of various countries around the world. I learned a lot about how governments use digital tools to stifle political dissent and about the reality of many human rights defenders, journalists and refugees who live here in Canada.

Human rights defenders are often faced with impossible choices: in many cases having to choose between their own safety and that of their family on the one hand, and their ability to speak out about injustice on the other.

Hearing from individuals who have such moral courage only strengthened my own resolve to use the law as a tool to address injustice, promote human rights, and strengthen democracy. In the short-term, I will continue doing so at the Citizen Lab, where I will be staying on as a Legal Extern throughout the fall. I am grateful for this opportunity to continue learning from my amazing colleagues while contributing to the impactful research underway.

Access to Justice in Action at the Yukon Human Rights Commission

By Garima Karia

This summer, I have had the immense fortune of moving to Whitehorse, Yukon to work alongside the fantastic humans at the Yukon Human Rights Commission (“the Commission”). As I read my peers’ reflections on their own human rights internship experiences, many of which include musings and lessons surrounding remote work, I feel both incredibly lucky and guilty – lucky that I was able to spend nine out of twelve weeks in the Yukon, and guilty that I happened upon this rare privilege in the midst of a pandemic. All that I can say is that I’m deeply grateful, and that I hope to do right by the opportunity.

At the Commission, my main duties are three-fold: I take “duty” shifts, during which I am the point-person in the office for inquiries from members of the public; I draft legal memos on questions of law and procedure that come up in human rights complaint investigations; and I support the human rights investigators by transcribing interviews, editing investigation reports, and talking through various aspects of human rights and administrative law as they apply to investigations. I have also been lucky enough to witness our Director facilitate settlement discussions and shadow him in his role as the “gatekeeper” at the threshold stage of the human rights complaint process.

Thus far, my favourite part of the job has been taking human rights inquiries from the public. This arm of the Commission operates similarly to a legal clinic (like the Legal Information Clinic at McGill, where I have been a caseworker in the past). We listen to an inquirer’s story or question (sometimes multiple questions!), and then provide relevant information about the Yukon Human Rights Act and the Commission’s human rights complaint process. Two key elements of an inquiry are explaining, in simple terms, the prima facie test for discrimination and the duty to accommodate. Both are core elements of the Act that work to guard against human rights violations and discrimination. The “ground-harm-nexus” model underlying the prima facie test can sometimes be justifiably difficult for inquirers to grasp. Many will state that they are a member of a vulnerable group that is protected under the Act, and that they experienced a harm in one of the protected areas (e.g. employment or accessing goods and services), but the nexus – the idea that the harm was driven by and sufficiently connected to discrimination based on a protected characteristic (such as gender expression, race, religion, or family status) – is the hardest to grasp.

Inquiries are challenging because they can often be very personal and emotional for the individual seeking assistance from the Commission. During my time here, I have dealt with inquiries pertaining to wrongful dismissal for disability or family status reasons to visitation rights of inmates and discrimination perpetuated by medical professionals. I have also encountered numerous COVID-related inquiries about vaccine status “discrimination” and mask mandates. Even though I am unable to provide legal advice as a Commission employee, I can comfort those who sought assistance from the Commission and assure them that I would do my best to guide them through the process. Engaging with Yukoners in this way – hearing and responding to their inquiries – feels like the most “human” part of my job. Although I love legal research and diving deeply into a niche question of law, I sometimes find that theoretical exercises leave me feeling distant from the actual practice of law and access to justice. Inquiries, on the other hand, illustrate how legal information can empower people to autonomously make informed decisions and choices that are attuned to their particular situation(s) or lived experience(s), which is what I think access to justice is all about. It’s rewarding to equip someone who felt powerless in their situation with resources and information that empower them to seek recourse and feel supported in doing so.

I am also learning a lot from the exercise of explaining human rights law without legal jargon. I am able to see, first-hand, how easily digestible the law can be without the opacity I often come across in law school settings. Many inquirers who come to the Commission cannot afford direct legal action and have exhausted many other avenues for resolution. They are often frustrated and losing hope – many have told me that they aren’t ready to give up on their cases but are tired of losing time and facing dead ends. Something as simple as understanding a legal test and filling out a complaint form, thereby commencing a dispute resolution process, gives some degree of reprieve to many people.

Human rights commissions and tribunals across the country provide free access to discrimination-related dispute resolution. In doing so, individuals who have experienced discrimination can seek justice in a very tangible and inexpensive way, unlike through the courts. However, like other useful bodies in the legal sphere, many human rights commissions are understaffed and underfunded, which can lead to significant delays. I plan to learn more about access to justice efforts in the administrative legal space in order to (hopefully) raise more awareness about and increase support for this avenue for dispute resolution in Canada.

The Procedure Underpinning Human Rights at the Commission

Jeremy Wiener By Jeremy Wiener

This summer, I am working at the Commission des droits de la personne et des droits de la jeunesse (CDPDJ). Every Canadian province has a human rights commission or tribunal, and the CDPDJ is Quebec’s. The CDPDJ’s principal task is promoting the principles enshrined in Quebec’s Charter of Human Rights and Freedoms (which has quasi-constitutional status). To promote the Charter, the CDPDJ makes recommendations to the Quebec government regarding statutory law’s conformity  with the Charter, promotes scholarly research and publications on issues related to the Charter, carries out investigations of discrimination, and even represents complainants before the Tribunal des droits de la personne by drafting factums and pleading before judges.

My work has entailed researching questions of law to help the CDPDJ represent those who allege that they have been discriminated against. I do so, however, not only by researching anti-discrimination law. I have also analyzed procedural law, and the law relating to business association and civil evidence – law taught in McGill law courses that I have not taken yet! This has reminded me that protecting people’s constitutional rights requires much more legal knowledge than what only relates to constitutional law.

Like many of my friends and colleagues, I am working remotely this summer due to Covid-19. This has, naturally, and not surprisingly, proved challenging. But it has also presented unique opportunities. For example, if I was working at the Commission’s office, I would not be able to take a two-minute break from working to play with my dog as I do now!

All jokes aside, my colleagues at the Commission have gone to great lengths to make working remotely feel like we are working inter-connectedly, and I very much appreciate it! My internship thus far has proved incredibly insightful and formative, and I thank all those at McGill, IHRIP, and at the Commission who have made this opportunity possible.

On living through an infodemic

Hanna RiosecoBy Hanna Rioseco

This summer, the World Health Organization (WHO) hosted the first Infodemiology Conference, focused on understanding, measuring, and controlling infodemics.

The term “infodemic” was coined by the WHO to describe the rapid spread and overabundance of information – some accurate, and some not. In a situation report published in early February, the WHO warned that infodemics make it difficult to find trustworthy sources and reliable guidance. During COVID-19, the consequences of misinformation can be a matter of life and death: a study published in the American Journal of Tropical Medicine and Hygiene estimates that between January and March 800 people around the globe may have died because of coronavirus-related misinformation.

Mitigating the risk of COVID-19 includes tackling the spread of misinformation that often accompanies outbreaks. Like a virus, misinformation spreads from person to person, but through information and communications technology systems.

I don’t have to consult the WHO, however, to recognize the information crisis for what it is: I’m living, scrolling, and sorting through it myself. Since February, my newsfeeds have been crowded with COVID-19 related news, stories, and memes. But the content that comes across my screen is not all accurate, or even useful. I’ve seen acquaintances criticize government directives about social distancing and question the effectiveness of mask-wearing; conspiracy theories regarding the origins and nature of the virus, some fueled with harmful sentiments; and medical misinformation such as untested at-home remedies. In Canada, a Carleton University study found that 46 percent of Canadian respondents believed at least one of four unfounded COVID-19 theories. 

To curb the spread of misinformation, the WHO has been active in the digital space by partnering with influencers to spread factual information. They have also been working closely with search engines and social media platforms to ensure that science-based health messages from official sources appear first in search results or newsfeeds. These efforts are being made to combat dangerous rumors, for example, that COVID-19 cannot survive in hot weather, or that chloroquine medication can prevent the virus. Additionally, the WHO is using artificial intelligence to engage in social listening and gain insights about the types of concerns people have about the virus. In theory, this will help officials to better tailor health messaging to meet the needs of the public. As I researched and reported on pandemic-related changes to access to information laws for the Centre for Law and Democracy’s COVID-19 Tracker, I also learned about how some States have used the infodemic surrounding COVID-19 as justification for harsh disinformation laws. Though aimed at protecting public health by curbing the spread of misinformation surrounding COVID-19, these laws have in many cases resulted in the detention of journalists and the criminalization of free speech. These responses raise a multitude of concerns, not only regarding human rights but also concerning how communications and information policy and legal frameworks can support access to reliable information moving forward.

During my internship at the Centre for Law and Democracy, I learned about how governments can mitigate the harmful effects of misinformation surrounding COVID-19 by fulfilling their right to information obligations. In a time where things feel more uncertain than ever, States can rebuild public trust and confidence by providing access to timely, reliable information. As I think about what I’ve learned about freedom of information and expression, and reflect on how our information systems and policies have failed to keep people informed and protected during this crisis, I am left with more questions than answers. What can this moment teach us about regulating the information environment? The problems posed by misinformation will, in all likelihood, outlast the virus, and require a multi-stakeholder solution. How can our digital communications infrastructure better safeguard against the harms of misinformation? What role should the private digital companies play? Should platforms censor or label content they identify as being false or misleading, or would that set a dangerous precedent for the moderation of free speech? And of course, where do human rights fit in?

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.

 

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