IntLawGrrls

Introducing Hallie Ludsin

noreply@blogger.com (Diane Marie Amann) — Sat, 17 Mar 2012 10:10:00 +0000

It's our great pleasure to welcome Hallie Ludsin (right) as an IntLawGrrls contributor.
Research Director at the South Asia Human Rights Documentation Centre in New Delhi, India, Hallie is writing a book using India’s experience with preventive detention to illustrate the very real slippery slope that can occur when democracies resort to this “extraordinary” measure to deal with ordinary criminal matters.
She previously worked as a consultant with with the Women’s Centre for Legal Aid and Counselling in the West Bank. In her introductory post below, Hallie outlines a recent Women's Centre report that she wrote, entitled Women and the Draft Constitution of Palestine.
Other organizations for which Hallie's consulted are the Centre for Policy Alternatives in Colombo, Sri Lanka, and the Centre for the Study of Violence and Reconciliation in Johannesburg, South Africa. Hallie also served as a senior researcher with the Gender Research Project of the Centre for Applied Legal Studies in Johannesburg, South Africa, and practiced as a litigation associate at Jones Day in New York.
Hallie earned a B.A. from Johns Hopkins University, Baltimore, Maryland, and a J.D. magna cum laude from Case Western Reserve University, Cleveland, Ohio, where she was inducted into the Order of the Coif and was a member of the Law Review. She's also earned an LL.M. from the University of the Witwatersrand in South Africa.
Hallie has taught law school courses on comparative law, on South African customary law, and on the application of international law to the Israeli-Palestinian conflict. Her article “Relational Rights Masquerading as Individual Rights,” published by the Duke Journal of Gender Law & Policy, was named as one of the top ten Global Justice Law Reviews of 2008 by the University of Utah’s Global Justice Think Tank.
Heartfelt welcome!

Women & Draft Constitution of Palestine

noreply@blogger.com (Hallie Ludsin) — Sat, 17 Mar 2012 09:00:00 +0000

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

A report titled Women and the Draft Constitution of Palestine, recently was released by the Women’s Centre for Legal Aid and Counselling, a nongovernmental organization with offices in Hebron, Ramallah, Jerusalem, and Bethlehem. (logo below right)
The report, for which I served as author, examines the Revised Third Draft of the Constitution of Palestine (text available here) from a feminist perspective. It focuses on the provisions most relevant to women. The goal of the report is to ensure that Palestinian women are not overlooked when setting the social, political, legal and governmental framework contained in a constitution for a state of Palestine.
► Part I of the report provides the necessary context for understanding the meaning and implications of the provisions of the Draft Constitution.
►► Chapters I through III provide the general background of the “Palestinian Context.”
Starting with the legal context, the last 100 years of occupation have created separate laws applicable to the West Bank, East Jerusalem, and the Gaza Strip, most of which are outdated. While law reform in other Arab and Muslim countries has begun to advance women’s rights, these reforms were largely ignored in the Occupied Palestinian Territories. Colonialism and the Israeli occupation also have undermined the formal legal system, which created a societal preference for resort to the customary legal system and religious courts for conflict resolution. These informal systems severely discriminate against women.
As to the social context, Palestinian society as a whole faces enormous difficulties, including violations of human rights by Israel, the indignities of occupation and poverty, and uncertainty under the Palestinian leadership. Women experience these difficulties differently from men and often differently from each other.
The Palestinian women’s movement reflects the diversity of Palestinian women and their experiences. Politically, this diversity has made it difficult for women to unite behind a common development and equality agenda. This lack of unity provides politicians with an excuse to ignore women’s demands for greater rights. Added to this, the Palestinian leadership regularly resorts to patriarchal nationalist rhetoric to maintain the status quo that limits women’s rights in the home and in wider society.

► Part II of the report analyzes the Draft Constitution.
►► Chapter IV describes the drafting process that included no women drafters and received little input from women’s rights activists.
In fact, few Palestinians have had the opportunity to participate in the drafting, which means the document does not reflect a societal consensus. Rather, the Draft Constitution appears to be a political compromise between the secular nationalist movement in control of the government at the time of the drafting, in 2004, and the fundamentalist religious movement that was gaining power. Instead of expressing a strategic vision for the future of Palestine, the constitution reflects the current social and political climate of insecurity, instability and danger created by the Israeli occupation. The provisions reflect a society taking comfort in tradition, culture and religion and one willing to sacrifice its rights for a sense of security.
►► Chapters V and VI provide the conceptual background for understanding recurring themes in the analysis of the Draft Constitution such as equal citizenship, the public-private divide, equality, socio-economic, cultural, civil and political rights, group rights, individual rights, negative and positive rights and the horizontal and vertical application of rights.
►► Chapter VI develops one of the most important concepts necessary for understanding the impact of the Draft Constitution on women’s rights – relational rights.
As a result of the codification of Shari’a personal status law, Palestinian women have few individual rights. Rather, they have relational rights as they receive (or are deprived of) their rights not as individuals or as members of groups, but through their personal relationships. For example, married women owe their husband a duty of obedience under Shari’a law, which means that they are not permitted to leave their homes without the permission of their husbands. Women’s access to the right to freedom of movement and the right to work then depend wholly on whether their husbands permit them to exercise the rights. (For those interested in reading more about relational rights, see my article "Relational Rights Masquerading as Individual Rights," published in the Duke Journal of Gender Law & Policy in 2008.)
►► Chapters VII-IX provide a detailed analysis of the provisions most likely to affect women keeping in mind the context of their lives.
On its face, the Third Revised Draft of the Constitution of Palestine appears to create a strong framework for women’s rights through four provisions protecting women’s equality. When read with the provisions protecting religious law, the framework crumbles.
Article 7 places personal status law under the authority of religion, which governs marriage, divorce, custody and maintenance and Article 23 expressly protects Shari’a rights. As explained in Part I, religious law severely discriminates against women. Whether the four equality provisions can be used to tackle this discrimination will depend on whether their interpreters treat religious law as ‘private’ and outside the control of government as the current government does now. Two family-related provisions of the Draft Constitution suggest that this public-private divide will remain regardless of the equality provisions, particularly as Article 35 expressly prohibits government interference in family matters with a few limitations and Article 48 protects maternal and family rights.
The Draft Constitution does not appear to transform women’s relational rights into individual rights enforceable by the state. It neither provides explicitly for the enforcement of human rights guarantees against non-governmental bodies and actors nor restricts religious law when it violates women’s rights. Read against Article 7’s protection for religious family law, women are not guaranteed, for example, access to Article 51’s right to work or Article 42’s right to education as Shari’a law grants families the right to determine for women whether they can work or study beyond a primary school education.
Overall, the report concludes that the Draft Constitution fails to address the inequalities, disadvantages and discrimination women face in accessing their rights, particularly within the family, and fails to guarantee equal citizenship including through equal access to economic and political power.

'Nuff said

noreply@blogger.com (Diane Marie Amann) — Sat, 17 Mar 2012 07:30:00 +0000

(Taking context-optional note of thought-provoking quotes)

'We do not yet know what consequences may flow from the kind of social media vigilante campaign Kony 2012 represents. We do know, however, that the ICC, while slow and difficult at times, offers a fair, impartial approach to justice. Its trials represent a commitment to the highest standards of procedural fairness and the steady advancement of the rule of law.'

-- Professor Louise Chappell and Ph.D. student Rose Grey, both of the School of Sciences at Australia's University of New South Wales, in a Sydney Morning Herald op-ed considering 2 events this past week: the 1st International Criminal Court verdict, on which Jennifer Easterday posted, and the viral "Kony 2012" video.

On March 17

noreply@blogger.com (Diane Marie Amann) — Sat, 17 Mar 2012 06:04:00 +0000

On this day in ...
... 1965, a human 1st walked, or rather floated, in space. He was 30-year-old Aleksei A. Leonov, a lieutenant colonel in the Soviet Air Force. He left the orbiting space capsule he was sharing with another cosmonaut and remained outside for 10 minutes. (credit for image of postage stamp depicting Leonov's feat) No doubt piquing American listeners in that era of the space race, a Soviet official declared that

'the target before us now is the moon, and we hope to reach it in no distant future.'

(Prior March 17 posts are here, here, here, here, and here.)

. . . at least not on the high seas

noreply@blogger.com (Jaya Ramji-Nogales) — Fri, 16 Mar 2012 10:16:00 +0000

(This post is part two of a two-part series on the European Court of Human Rights' decision in the Hirsi v. Italy case; part one is here.)
In yesterday's post, I discussed the first two grounds (Article 1 and Article 3 of the European Convention on Human Rights) of the European Court of Human Rights' (ECtHR) decision in Hirsi v. Italy, which applied the principle of non-refoulement to Italy's actions on the high seas. Today I discuss the second two grounds: whether Protocol 4, Article 4 applies extraterritorially and what process is due asylum seekers on the high seas under Article 13 of the European Convention on Human Rights. (photo credit for map indicating the high seas in dark blue)

Protocol 4, Article 4: Prohibiting collective expulsion of aliens
Perhaps the most interesting portion of the decision was a question of first impression: whether Protocol 4 Article 4's prohibition on the collective expulsion of aliens applies to "push-back" (removal of aliens to a third state) carried out outside the national territory.
The court began its analysis with traditional interpretation techniques, which did not reveal much. The text of the provision contains no reference to territory. The travaux preparatoires do not speak to this specific question, but they do not preclude extra-territorial application of the provision.
Faced with this indeterminacy, the ECtHR asserted that the Convention is a "living instrument" (a good sign for those aiming to extend its protections). If interpreted narrowly, the court reasoned, Protocol 4 Article 4 would not apply to a significant component of contemporary migratory patterns.
The court also looked to other relevant case law. Noting specifically that it contradicted the U.S. Supreme Court, the ECtHR cited a decision of the Inter-American Commission on Human Rights finding that U.S. interdiction and return of Haitians violated the UN Refugee Convention and the American Declaration of the Rights and Duties of Man.
The court's analysis can be summarized in two choice quotes from paragraph 178. First, it speaks to extraterritorial jurisdiction:

[W]hile the notion of “jurisdiction” is principally territorial and is presumed to be exercised on the national territory of States. . . , the notion of expulsion is also principally territorial, in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion.

Second, it dismisses the possibility of a legal "black hole":

[T]he special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction.

In other words, while states have a right to establish their own immigration policies, they must manage migratory flows with due respect to their obligations under the European Convention. In the case at hand, because Italy did not examine the applicants' individual situations, the court found that its treatment of these migrants constituted collective expulsion.

Article 13: Right of access to effective asylum procedures
The ECtHR wraps up its analysis by specifying the procedural requirements necessary where Article 3 is potentially in play. The court determines that in such cases, a member state must provide (1) independent and rigorous scrutiny of the claim to protection and (2) the possibility of suspending implementation of the removal order.
In this case, the Italian government did not provide the applicants with any access to a procedure to identify and assess their claims to protection. While Italy argued that the migrants could have applied to Italian criminal courts upon arrival in Libya, the ECtHR found this approach insufficient because it did not offer suspension of implementation of the removal order. It awarded the applicants damages of 15,000 Euros each.

Though its tone is measured, the ECtHR's approach represents a bold and important development in international human rights law. For states parties to the European Convention, the principle of non-refoulement has been extended (at least in this case) to the high seas, putting a stop to claims that ships outside member states' territorial waters are in a rights-free zone. The practical results are significant for member states, who may now be required to offer individual assessments of claims to protection before returning migrants who board national ships on the high seas. This is a powerful intrusion into states' right to protect their borders, with numerous implications for the concept of sovereignty. The ECtHR has proven itself capable of shifting strong norms in the past; here's hoping that this decision does the same.
If the court is powerful enough to strengthen the principle of non-refoulement on the high seas, states face the challenging question of how to respond to situations of mass influx by boat. While some of the resistance to processing individual applications may be attributed to xenophobia and/or other unsavory rationales, there are legitimate state concerns around the expense and difficulty of providing individualized processing to large numbers of migrants. The long-term solution, of course, is to improve conditions in migrant-sending countries. In the medium and short-term, states that are destinations for sea arrivals can and should create safe migration routes and realistic migration policies that enable migrants to escape persecution or seek employment without having to risk their lives en masse on the journey.

Write On! Private international law

noreply@blogger.com (Diane Marie Amann) — Fri, 16 Mar 2012 08:00:00 +0000

(Write On! is an occasional item about notable calls for papers)

The Private International Law Interest Group of the American Society of International Law is seeking papers to be presented at a conference October 5 and 6, 2012, at Duke Law School (below right) in Durham, North Carolina. (photo credit)
The overall theme is "What is Private International Law?" Organizers explain:

'Globalization increases the importance of private actors and private arrangements. And yet, while other disciplines are responding to these challenges, private international law seems mired in its past, unable to reform sufficiently. This suggests that it is time to ask foundational questions about our field. What is private international law today? Does it promote any polices or values, and if so, which are those? Is it just rules designating the applicable law? Does it include conflicts rules for public law? Should it include substantive private law? Privately made law beyond the state? What is its place in international law more generally, especially vis-à-vis public international law? What is its role in global governance? And is private international law relevant today, or can its former functions be fulfilled by other areas of the law?'

Proposals for papers "that answer some or all of these foundational questions," in the form of abstracts of 500 or fewer words (also welcome are drafts and finished papers) must be submitted by May 15, 2012. Publication in "a special edition of an international law journal or a volume of collected papers" is contemplated, and a prize will be awarded to the best finished paper by an author under age 35.
Details here.

On the Job! Santa Clara Law Human Rights Clinical Fellowship

noreply@blogger.com (Beth Van Schaack) — Fri, 16 Mar 2012 07:30:00 +0000

I am pleased to announce that Santa Clara University School of Law is now seeking applications for a Clinical Fellowship with our new International Human Rights Clinic (IHRC).

The IHRC provides a unique educational opportunity for students to gain first-hand, practical experience working on international human rights litigation and advocacy projects. It combines classroom education with supervised case and project management, providing students practical training in advocacy and lawyering skills. The fellow will work with the new Clinical Director, Francisco Rivera, formerly of the Inter-American Court of Human Rights (below right, with his wife, Claudia Josi, who is also a human rights lawyer).

Position Description: The clinical fellowship position is a nine-month academic appointment commencing on Aug. 1,2012, with a possibility for supplemental summer employment. The position maybe renewed for one additional term commencing on Aug. 1, 2013. The fellow will report to the Director of the International Human Rights Clinic and will supervise student work on clinic projects, participate in the planning and conduct of the clinic, assist with teaching a substantive law and legal skills seminar, and assess the development of new clinic projects. The clinical fellow will also be responsible for counseling and mentoring students, including advancing student job opportunities by arranging for students to work with partner organizations on clinic cases.

Essential qualifications:

JD degree or comparable degree from a law school outside the United States.
At least two years of experience as a practicing lawyer, including experience with international human rights litigation and/or advocacy.
Excellent organizational, communication, and writing skills. Enthusiasm and demonstrated interest in student development.
English fluency is required. Fluency in a second language, particularly Spanish, is desired.
Prior experience teaching in an international human rights clinic is desired.

Application Procedure:

Applicantsshould send a cover letter and a resume or CV to:

IHRC Clinical Fellowship Search Committee

c/o Ms. Elyse Amberg

Santa Clara University Law School

500 El Camino Real

Santa Clara, CA 95053

Applicationsalso may be sent via e-mail to Ms. Amberg at eamberg@scu.edu.Applications must be received by Friday, March 30, 2012.

Inquiries: Inquiries may be addressedto Professor David Sloss, Director of the Center for Global Law and Policy, at dlsloss@scu.edu.

Santa Clara University is an Equal Opportunity/Affirmative Action employer, committed to excellence through diversity and inclusion, and, in this spirit, particularly welcomes applications from women, persons of color, and members of historically underrepresented groups. The University will provide reasonable accommodations to individuals with a disability.

On March 16

noreply@blogger.com (Diane Marie Amann) — Fri, 16 Mar 2012 07:04:00 +0000

On this day in ...
... 1995, Mississippi became the last state to ratify the 13th Amendment to the U.S. Constitution. (image credit) This Reconstruction Amendment, which had taken effect throughout the country more than a century earlier, in 1865, provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

(Prior March 16 posts are here, here, here, here, and here.)

No more refoul-ing around. . .

noreply@blogger.com (Jaya Ramji-Nogales) — Thu, 15 Mar 2012 10:16:00 +0000

(This is part one of a two-part series on the European Court of Human Rights' decision in the Hirsi v. Italy case. Part two is here.)
Three weeks ago today, the European Court of Human Rights (ECtHR) issued its much-anticipated decision in the Hirsi v. Italy case. The question at issue -- whether human rights law requires states to uphold their non-refoulement obligations on the high seas -- has been hotly contested for years. The opinion also has implications for the extraterritorial applicability of human rights law beyond the principle of non-refoulement.
In 1993, in the Sale v. Haitian Centers Council case, the U.S. Supreme Court decided that the UN Refugee Convention did not oblige U.S. officials to process asylum claims from Haitians intercepted in international waters before returning them to Haiti. In Hirsi, the ECtHR came to the opposite conclusion about the applicability of the non-refoulement principle found in Article 3 of the European Convention on Human Rights to Italy's interception of migrants coming from Libya. Though the acts that gave rise to the claim occurred two years before the Arab Spring, the ECtHR's decision will impact legal responses to North Africans subject to subsequent "push-back" operations in the Mediterranean.
The case was filed by eleven Somalis and thirteen Eritreans who fled Libya by boat, and were intercepted at sea (in Maltese waters) by the Italian authorities in May of 2009. The Italian ships returned the applicants and the other occupants of the boats to Tripoli without an opportunity to present any claims for protection (though they objected to being returned to Libya). This "push-back" operation occurred pursuant to bilateral treaties between Libya and Italy aimed at reducing irregular migration and discouraging people smuggling and trafficking.
The claim focused on four provisions of the European Convention on Human Rights: Article 1, relating to the extraterritorial application of the convention; Article 3, extending the principle of non-refoulement to those at risk of torture; and Article 13, setting forth procedural requirements for accessing an effective remedy. Perhaps most importantly, the ECtHR decided a question of first impression -- the applicability of Protocol 4, Article 4, prohibiting the collective expulsion of aliens, to removals occurring outside the territory of the state party.
Today's post discusses the first two grounds; tomorrow's post will discuss the second two.

Article 1: Extraterritorial application of the Convention
The Italian government's argument in their defense was that their ships were rescuing persons in distress on the high seas in accordance with their obligations under the UN Convention on the Law of the Sea. As a result, Italy claimed that jurisdiction was not established and the European Convention on Human Rights did not apply to their actions.
The ECtHR cautiously rejected this argument. It noted that jurisdiction under Article 1 is territorially-based, and that extraterritorial acts constitute an exercise of jurisdiction only exceptionally. The court framed the question as one of control and authority that must be determined on a case-by-case basis, with respect to particular facts.
Turning to the case at hand, the ECtHR determined that the facts create jurisdiction because both the law of the sea and Italian national law consider a vessel on the high seas to be subject to the exclusive jurisdiction of the State whose flag it flies. The Italian ships that intercepted the migrants were military ships that had de jure and de facto control over the migrants. As a result, the European Convention's jurisdiction was triggered in this case.

Article 3: Non-refoulement to torture
With respect to the Article 3 claim, namely that the migrants risked torture in Libya as well as being refouled to torture in their home countries, Italy argued that Libya was a safe host country because it had ratified several human rights conventions (the International Covenant on Civil and Political Rights, the UN Convention Against Torture, the African Union's Refugee Convention) and because it was a member of the International Organization for Migration. Though the UN High Commissioner for Refugees had an office in Tripoli, Libya was not a party to the UN Refugee Convention.
The ECtHR made quick work of this "rights on paper" argument. Though the court recognized member states' right to control entry, residence, and expulsion of aliens, as well as the specific pressures on the external borders of the European Union, especially during episodes of mass migration, it found that these interests do not absolve the state of its obligations under Article 3. In other words, the European Convention prevents even states faced with mass influx from removing a migrant who would run a real risk of being subject to torture.
Turning to the specifics of the case at hand, the ECtHR relied on numerous human rights reports to find that the treatment of migrants in Libya at the time exposed migrants to the risk of torture. Moreover, the Italian government's obligations under the European Convention required them to be aware of the conditions in Libya and the risk of arbitrary return to Eritrea and Somalia; it couldn't avoid its duties by relying on its bilateral agreements with Libya or claiming it was unaware of the risk of torture.

(photo credit)

Go On! Violence, women, disabilities @ ASIL meeting

noreply@blogger.com (Hope Lewis) — Thu, 15 Mar 2012 09:00:00 +0000

(Go On! is an occasional item on symposia and other events of interest)

Readers planning to attend the 106th American Society of International Law Annu al Meeting, please take note of an important session being organized by Stephanie Ortoleva and myself, who serve as founding Co-Chairs of ASIL's International Disability Rights Interest Group.
It's the ASIL Roundtable on Violence Against Women with Disabilities, entitled "Forgotten Sisters: Violence Against Women with Disabilities – Human Rights Law and Complex Identity Status." The session will be held in the Potomac Room of the Fairmont Hotel, Washington, D.C., from 3:15-4:45 p.m. on Thursday, March 29, 2012 – just after another event well worth attending, the luncheon of WILIG, the Women in Law Interest Group, at which IntLawGrrls contributor Mireille Delmas-Marty will speak and receive the Prominent Women in International Law award.
At the "Violence Against Women with Disabilities" session, experts on women's rights, disability rights, and discrimination will spark a lively and practical discussion on states' due diligence obligations to prevent and remedy violence against women with disabilities. Roundtable participants will discuss ways multiple identity status exacerbates violence and influences effective implementation of international and comparative legal norms.
Speaking will be Akiko Ito (top left), Chief of the Secretariat for the Convention on the Rights of Persons with Disabilities, U.N. Department of Economic and Social Affairs; Miami Law Professor Caroline Bettinger-López (middle left), an IntLawGrrls contributor; and Charlotte M cClain-Nhlapo (bottom left), U.S. Agency for International Development. My Interest Group Co-Chair, Stephanie Ortoleva, Visitor Scholar at the University of Hawai'i, will moderate.
Hope to see you there!

On March 15

noreply@blogger.com (Diane Marie Amann) — Thu, 15 Mar 2012 07:04:00 +0000

On this day in ...
... 1921, Eileen Nearne (right) was born in London to a family with English, French, and Spanish ancestry. (photo credit) They lived in France, where she grew up, until shortly before the Germany occupied that country during World War II. The family fled, arrived in England, and she, a sister, and a brother eventually joined Britain's spy network, the Special Operations Executive. (On other women who served in the S.O.E., see here and here.) Nearne parachuted into France and worked for the Allies in the occupied land, sending messages back via secret radio. Eluding capture until mid-1944, she was then arrested, endured torture, and detained at Ravensbrück and other concentation camps. She escaped, only to have American troops suspect she was a Nazi spy, until Britain informed them otherwise. Nearne died at age 89 on September 2, 2010.

(Prior March 15 posts are here, here, here, here, and here.)

Lubanga Found Guilty by ICC Trial Chamber

noreply@blogger.com (Jennifer Easterday) — Wed, 14 Mar 2012 13:29:00 +0000

Today, Trial Chamber I of the International Criminal Court found Thomas Lubanga Dyilo guilty of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities during the conflict in Ituri, Democratic Republic of the Congo.Mr. Lubanga was the President of the Union of Congolese Patriots (UPC) and the commander-in-chief of its military wing, the Forces Patriotiques pour la Libération du Congo (FPLC, Patriotic Liberation Forces of the Congo). He was found guilty as a co-perpetrator for conscripting, enlisting and using the child soldiers in furtherance of a common plan to gain and maintain political and military power in Ituri. A separate sentencing hearing will follow.Although Judges Bonito and Fulford have written separate and dissenting opinions on discrete issues, the decision on Mr. Lubanga’s guilt was unanimous. An appeal is likely.This is the first-ever judgment of the ICC and marks a historical moment. However, the trial, which has dragged on for six years since the time of Mr. Lubanga’s arrest and transfer to the court in 2006, has been marred in controversy that demonstrates the ICC’s growing pains. The proceedings raised many critical issues the ICC will be forced to deal with as it continues to mature, including disclosure obligations, the use of intermediaries by the Prosecution, and the participation of victims in the proceedings.

Condemning Prosecution’s Use of Intermediaries
During today’s reading of the judgment, the Trial Chamber made special note of the Prosecution’s use of intermediaries—third parties non-Court staff—to gather evidence for the trial (prior IntLawGrrls posts here and here). The Court considered that the OTP should not have delegated its investigative duties to the intermediaries, even considering the security concerns the OTP faced. The Court chastised the OTP for its “negligence” in failing to scrutinize and analyze the evidence gathered by the intermediaries. The court noted that because of the OTP’s lack of oversight, the intermediaries were able to take advantage of and manipulate witnesses who were former child soldiers, given their vulnerability due to their young age and traumatic experiences. The evidence of those witnesses could not safely be relied on, the Chamber concluded. The Chamber went so far as to suggest that the Prosecution charge three intermediaries for crimes against the administration of justice (Art. 70 of the Rome Statute) for persuading, encouraging and assisting witnesses to give false evidence. The Court told the OTP to ensure that there are no conflicts of interest in pursing such charges against the Prosecution’s own intermediaries.Although at some point the conflict in Ituri was international in character, the Court found that during the period of the conflict relevant to the charges (September 2002 – August 2003) the UPC FPLC was involved in an internal armed conflict. Therefore, the Chamber changed the legal characterization of the facts pursuant to Regulation 55.

Conscripting and Enlisting Child Soldiers
The Chamber concluded that enlisting and conscripting children under the age of 15 becomes a crime as of moment the child is enrolled into or joins armed groups—with or without compulsion. The crime is continuous in nature and ends when the child turns 15 or leaves the group, the Court found. Between September 2002 and August 13, 2003, the Chamber found that the armed wing of the UPC was responsible for the widespread recruitment of young people, including children under 15.
These children were voluntarily or forcibly recruited and sent to either UPC headquarters military training camps, the Court found. According to the Chamber, evidence demonstrated the children endured “harsh training regimes,” were subjected to a variety of harsh punishments, and were used to carry out domestic work. The Court also noted that while witnesses testified that UPC commanders subjected girls to sexual violence and rape, these crimes were not part of the charges against the accused, and the Chamber did not made any factual findings on the issue.

Using Children to Actively Participate in Hostilities
Using children to actively participate in hostilities is a charge that includes a wide-range of activities not limited to fighting on the front lines, the Court found. The Court considered that using children in indirect roles that support the combatants, such as domestic servants or bodyguards, was also active participation in hostilities if that role exposed the child to “real danger as a potential target.” The Court found that the UPC FPLC deployed children as soldiers that took part in fighting in Ituri. The UPC FPLC also used children as military guards and bodyguards, the Court found. In particular, the Court found that Mr. Lubanga’s presidential guard included children.

Mr. Lubanga Participated in a Common Plan
The Chamber found that Mr. Lubanga and his co-perpetrators agreed to, and participated in, a common plan to create an army to establish and maintain political and military control over Ituri. This resulted in the conscription and enlistment of children into the military and their use in hostilities. Mr. Lubanga himself actively participated in recruitment activities and provided logistical and material support to the UPC FPLC. Mr. Lubanga’s contribution to the common plan was significant, the Court found, and he acted with the requisite mens rea. Mr. Lubanga, as president of UPC FPLC, was simultaneously its political and military leader. He had an overall coordinating role of activities, was informed of its operations, involved in planning of military operations, and played critical role in providing logistical support including arms, food and other supplies. Moreover, the Court found that he was closely involved in making decisions on recruitment and actively participated in recruitment exercises by giving speeches encouraging youth to join the army. He personally used children below the age of 15 as bodyguards and regularly saw guards of other UPC staff members do the same. These contributions, taken together, were essential to a common plan that led to the commission of the crimes charged, the Court found.

Introducing Clare McGlynn

noreply@blogger.com (Diane Marie Amann) — Wed, 14 Mar 2012 10:16:00 +0000

It's our great pleasure to introduce Clare McGlynn (right) as an IntLawGrrls contributor.
Clare's a Professor at Durham Law School in England, whose faculty she joined in 1999. She co-founded the research group GLAD – Gender & Law at Durham – in 2007. From 2007 to 2009, she was Deputy Head of the law school. At Durham, she serves as an advisory board member for the Centre for Criminal Law and Criminal Justice, as a member of the Durham European Law Institute, and as a member of the Human Rights Centre.
Before entering legal academia, she'd practiced law as a solicitor.
A feminist legal scholar, Clare has particular expertise in the fields of rape law and policy, the legal regulation of pornography, and the representation of women in the legal profession. Her research currently is supported by a Leverhulme Research Fellowship. In 2007, she co-organised a seminar on extreme pornography that drew media attention. Her work has been discussed in the Scottish Parliament, the Guardian and 2010 Home Office review of the Sexualisation of Young People.
Along with her Durham Law colleague Erika Rackley and Rosemary Hunter of England's Kent Law School, Clare co-leads the Feminist Judgments Project, "which put 'theory into practice' by writing the 'missing' feminist judgments in key cases," then published them in Feminist Judgments: From Theory to Practice (2010).
The project that forms the basis of Clare's introductory post below evolved out of a 2008 conference funded by the British Academy. Entitled "Rethinking Rape Law," it included presentations by Catharine MacKinnon, Michigan Law Professor and Gender Advisor at the International Criminal Court, and Navanethem Pillay, U.N. High Commissioner for Human Rights. Clare's post describes the product of this conference, an essay collection entitled Rethinking R ape Law: International and Comparative Perspectives (2010), which she co-edited with Nottingham Law Professor Vanessa Munro.
Clare dedicates her post to dedicates to Emmeline Pankhurst (1858-1928), a militant British suffragist and rights activist about whom we've frequently posted. (credit for photo of Pankhurst in 1909 "portrait badge") Clare joins contributor Sue Westwood in honoring Pankhurst as an IntLawGrrls foremother.
Heartfelt welcome!

Read On! Rethinking Rape Law & feminism's place in law

noreply@blogger.com (Clare McGlynn) — Wed, 14 Mar 2012 09:10:00 +0000

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, another in the Read On! series)

Rape, and rape law, have been key sites of feminist struggle for decades. There is, therefore, no shortage of good books on rape and many excellent feminist analyses of rape law.
The springboard for our book on rape was a conference held at Durham University in 2008 which assessed the ten-year legacy of the Akayesu judgment issued on September 2, 1998, by Trial Chamber I of the International Criminal Tribunal for Rwanda. This judgment heralded the first conviction for genocide and war crimes based on rape, as well as an extended definition of what constitutes rape based on coercive circumstances.
Reflecting on the significance of Akayesu is the consequent essay collection Rethinking Rape Law: International and Comparative Perspectives (2010) edited by Nottingham Law Professor Vanessa Munro and myself. It provides an occasion for engaging with broader debates about the role and relevance of law as a mechanism for securing change in the context of rape. The judgment also affords an opportunity to reappraise foundational assumptions about the nature of the wrong of rape and appropriate legal responses. The opportunity of this anniversary, therefore, was taken both in the conference and in our book, to assess legal definitions and strategies for counteracting rape across an extensive range of jurisdictions, including:
► International law,
► Regional human rights instruments, and
► The diversity of national legislation.
Rethinking Rape Law aims to provide a critical appraisal of recent developments in rape laws and to explore the parallels and dissonances between rape in times of war and in times of peace. It reflects on the differences between common law and continental jurisdictions, as well as between societies in transition and those which have been long inured to feminist activism.
Yet, not surprisingly, our book identifies many consistent challenges that plague rape laws, regardless of state borders or other boundaries.
It is hoped, therefore, that our book is challenging and innovative, not least in bringing together perspectives on international criminal law, human rights law and domestic criminal justice law and policy, alongside a theoretical interrogation of some of the foundational concepts in rape law.
The book also provides ‘stocktakes’ of the current responses and challenges to rape law in a number of national jurisdictions – from the more familiar, United States, Canada, Australia, and the United Kingdom, to Italy, Croatia, Sweden and South Africa.
Reviews of the book have thus far been positive.
Interestingly, though, one reviewer thinks the title of our book is not sufficiently clear to convey the ‘feminist goals and overall feminist approach’ of the book, which ‘might come as a surprise’ unless you are familiar with the work of the editors.
How depressing that it is a ‘surprise’ that a book on rape law contains feminist analysis; or indeed that any book on this subject should not engage with feminist thinking. Despite the wealth of writing on rape law and policy referred to above, it seems that, for some, feminism remains marginal.
The same reviewer also comments, in relation to discussions regarding expanding legal definitions of rape – rethinking rape law indeed – that feminism should ‘take the limits and principles of criminal law more seriously’.
It seems that it needs to be re-stated again (and again): if we are to see reform which secures both justice for rape victim-survivors and the autonomy of women, it is the criminal law which needs to take feminism more seriously.

Write On! ICC @ 10 @ Leiden

noreply@blogger.com (Diane Marie Amann) — Wed, 14 Mar 2012 08:07:00 +0000

(Write On! is an occasional item about notable calls for papers)

The Grotius Centre for International Legal Studies at Leiden University's campus in The Hague, Netherlands, is seeking papers to be presented at a conference that's part of its The ICC at 10 Years Project.
The conference, organized with the support of the Open Society Justice Initiative and entitled The Law and Policy of the International Criminal Court: Achievements, Impact and Challenges, will be held September 27 and 28, 2012, at the Peace Palace in The Hague.
Here's an excerpt from the call for papers:

In 2012, the International Criminal Court (ICC) will celebrate the ten-year anniversary of its entry into force. This anniversary presents an occasion to reflect on the world’s first permanent institution designed to hold individuals accountable for violations of serious international crimes. It is an opportunity to examine the law and practice of the Court, its contribution to international criminal law and policy, and its potential role in countries where such crimes have been committed. The conference will bring together scholars from a variety of disciplines and practitioners from within the broader international law community to reflect on the ICC as an institution, its jurisprudence, the impact of its activities and to critically assess future possibilities for the Court.

Interested participants should send a draft title and 500-word abstract of their proposal, written in English, together with a CV to pcj@cdh.leidenuniv.nl, no later than Monday, April 16, 2012. Submissions should be related to one of the themes such as the following:
► Law and Practice of the ICC
► Roles and Responsibilities of ICC Actors
► Complementarity and Domestic Jurisdictions
► The ICC in Context: Impact and ‘Legacy’
Details on these themes and on the project as a whole are set forth in the full call for papers, available here.

On March 14

noreply@blogger.com (Diane Marie Amann) — Wed, 14 Mar 2012 07:04:00 +0000

On this day in ...
... 1647 (365 years ago today), in what is now Germany, a truce known as the Treaty of Ulm was signed in that city by representatives of France, Sweden, and Bavaria, after the former 2 powers invaded the last during the Thirty Years War. The Elector of Bavaria, Maximilian I (coat of arms at left), would break the truce by autumn. (image credit)

(Prior March 14 posts are here, here, here, here, and here.)

Genocide as the narrative of violations of socio-economic rights

noreply@blogger.com (Larissa van den Herik) — Tue, 13 Mar 2012 10:00:00 +0000

The definition of genocide is utterly intricate. It is inherently arbitrary, protecting certain groups from destruction while leaving out others without providing a clear justification for this discrimination.
At the same time, and however unfortunate this arbitrariness may be, the conventional definition of genocide is probably more carved in stone that any other legal definition. It was not not even revisited in Rome in 1998 during the negotiations that led to adoption of the treaty establishing the International Criminal Court.
Most likely, back in 1948 the drafters of the Genocide Convention did not envisage that the Convention would be applied to a range of new situations.
As remarked by Professor William A. Schabas (left) some ten years ago, at the Convention’s fiftieth anniversary, the drafters of the Convention probably had in mind to erect a monument looking back at the Holocaust, rather than that they could conceive that the Convention would apply to genocides yet to occur. (credit for 2005 photo) As a result, the legal definition of genocide was tailored on past events rather than forward looking.
The definition in a way is the legal narrative of the Holocaust, rather than that it was specifically created for future application to yet unknown situations that were in essence comparable to the Holocaust. Even though the Holocaust has not been repeated in scale, form, and character, the qualification of genocide has been invoked in quite a number of situations, ranging from the massacres in Rwanda, Srebrenica, and Darfur, to the annihilations of Indians in the Americas and the transfer of Aboriginal children in Australia.
The question is:
► Are all these situations truly in essence comparable and is the qualification of genocide the most adequate one?
Or phrased in more abstract terms:
► To what extent is the definition of genocide as included in the Genocide Convention applicable to new situations, and what can recent jurisprudence teach us about the future application of the Convention?
In The Meaning of the Word 'Destroy' and the Implications for the Wider Understanding of the Concept of Genocide, an essay recently posted on SSRN, I have argued that the essence of the legal definition of genocide is captured in the word ‘destroy’, which is part of the mental element, namely that an act be committed with the specific intent to destroy the group.
The understanding of the word ‘destroy’ has been subject to different interpretations in the jurisprudence of the ad hoc Tribunals. The predominant and traditional view – as adhered to by the International Law Commission (here), by the International Criminal Tribunal for Rwanda, and mostly by the International Criminal Tribunal for the former Yugoslavia – is that the word destroy implies

'the material destruction of a group either by physical and biological means and not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.'

In a Partial Dissenting Opinion to the Krstić Appeal Judgement (ICTY 2004), Judge Mohamed Shahabuddeen (right) advocated a different understanding of the word “destroy”. (photo credit) He proposed to distinguish more clearly between the acts of genocide and the mental element. Whereas the acts obviously had to be of a physical or biological nature, according to Judge Shahabuddeen,

'it is not apparent why an intent to destroy a group in a non-physical or non-biological way should be outside the ordinary reach of the Convention.'

The Judge argued that whereas certain genocidal acts require or imply an intent to destroy physically or biologically, other acts do not specify this.
In other words, the definition of genocide does not articulate that the physical act of killing members of the group should occur with the intent to physically destroy that group. Shahabuddeen noted in this context that a group

'is constituted by characteristics – often intangible – binding together a collection of people as a social unit.'

In the Krajišnik judgement, the ICTY Trial Chamber continued Shahabuddeen’s line of reasoning, and held that the word “destroy” as used in the mental element was not limited to physical or biological destruction of the group’s members, as a group could also be destroyed in other ways, such as transferring children or severing the bonds among its members.
The discussion above was echoed in the ICC case against Sudanese President Omar Al-Bashir.
In the first Bashir Arrest Warrant decision, issued in 2009, the majority of theICC Pre-Trial Chamber endorsed the more traditional view that clearly distinguishes between ethnic cleansing, deportation, and transfer, on the one hand, and a genocidal policy, on the other hand. Pursuant to this view, only in extreme cases can the practice of ethnic cleansing result in genocide.
In a Separate and Partly Dissenting Opinion, Judge Anita Ušacka (left) paid tribute to the more expansive approach suggested by Shahabuddeen, in an attempt to keep the discussion on this point open. (credit for photo ©ICC-CPI/Hans Hordijk)
After the ICC Appeals Chamber had reversed the first Arrest Warrant decision, the genocide counts were re-established in the second Arrest Warrant decision.
Most notably, in this latter decision, issued in 2010, the Pre-Trial Chamber opened the door for using genocide as a narrative for violations of socio-economic rights.
The Pre-Trial Chamber held that there were reasonable grounds at that stage of the procedure to believe certain acts of this nature could be qualified as genocidal acts; specifically:
► Contamination of water wells and other forms of destruction of means of survival in homelands;
► Systematic transfer to inhospitable terrains without proper access to water and food; and
► Denial and hindrance of medical assistance.
However, these acts could only be captured under the heading ‘deliberate infliction of conditions calculated to bring about the physical destruction of the group’ if committed against the backdrop of other more direct mass murder campaigns.
It remains to be seen how this matter is ultimately addressed if ever the case against Al-Bashir proceeds to the trial phase.
The recent jurisprudence does display an awareness that modern genocides will likely be committed through different strategies and policies than originally envisaged. The key to successful future application of the genocide definition requires a combination of a certain sensitivity and openness towards appreciating new modes of committing genocide – while also maintaining a strict interpretation of the word ‘destroy’ that does not undermine the essence of genocide.

'Nuff said

noreply@blogger.com (Diane Marie Amann) — Tue, 13 Mar 2012 09:15:00 +0000

(Taking context-optional note of thought-provoking quotes)

'Whereas the text of the Guidelines employs the verb should, the Commentary of the Guidelines suggests that enterprises have an obligation to respect human rights because "respect for human rights is the global standard of expected conduct for enterprises."'

-- Dr. Jernej Letnar Černič, Lecturer in Human Rights Law at the Graduate School of Government and European Studies, and at the European Faculty of Law, both in Slovenia. The quote appears in his ASIL Insight commenting on the 2011 Update of the OECD Guidelines for Multinational Enterprises, adopted by the Organisation for Economic Co-Operation and Development in May of last year. (logo credit) Černič's comment underscores the problem of the nature of obligation with regard to corporate responsibility, as does this one, also from his Insight:

'The major weakness of the OECD Guidelines is their unenforceability.'

On March 13

noreply@blogger.com (Diane Marie Amann) — Tue, 13 Mar 2012 07:04:00 +0000

On this day in ...
... 1892 (120 years ago today), Janet Flanner was born into a mortician's family in Indianapolis, Indiana. She studied 2 years at the University of Chicago, then worked as a film critic at her hometown paper. Divorced from William Rehm after a few years of marriage, she had a reportedly lifelong, though not exclusive, relationship with another writer, Solita Solano. Flanner is best-known as The New Yorker's Paris correspondent, writing under the pseudonym "Genêt" from 1925 to 1975. As posted in our Women at Nuremberg series, Flanner covered the post-World War II trials at Nuremberg. (credit for 1944 photo of Flanner in war correspondent's uniform) A member of the American expat artistic community that included Gertrude Stein, Ernest Hemingway, and others, she died in New York in 1978. Some of her writings are available here.

(Prior March 13 posts are here, here, here, here, and here.)

Read On! Sexual Violence in Conflict Zones

noreply@blogger.com (Naomi Cahn + Dina Haynes + Fionnuala Ni Aolain) — Mon, 12 Mar 2012 10:30:00 +0000

(Read On! ... occasional posts on writing worth reading)

In recent years, the differing and overlapping experiences of men and women in situations of armed conflict have garnered significant international attention. Such attention results from the confluence of multiple factors including greater visibility of the violations experienced by women in times of war; the increasing reliance by UN member states on gendered violations as a basis for justifying multi-national humanitarian interventions; and greater exposure of the broader social, economic and cultural effects on women of inter-state and intra-state armed conflict.
A new book, Sexual Violence in Conflict Zones: From the Ancient World to the Era of Human Rights, provides an impressive historical perspective on these issues. Written almost exclusively by historians, the 14 essays survey an outstanding array of sites, ranging from ancient Greece to medieval England, from the American Revolution and pre-colonial warfare in Tanzania to the Bangladeshi war, from ancient warfare to World War II. A final essay, by the late Rhonda Copelon, addresses how far legal approaches to sexual violence have come—and how much farther they need to go (a wonderful memorial of her and her work). The book grew out of a conference in April 2006 held at the University of Iowa Center for Human Rights titled “The History of Sexual Violence in Conflict Zones” and co-organized by Elizabeth Heineman (pictured below), the editor of this collection of essays. It is organized topically, rather than chronologically or regionally.

The essays are all rooted in a minute accounting of the site-specific historical record, frequently presenting rarely accessed sources and demonstrating methodological sensitivity to uncovering the presence and absence of women from the records and narratives of conflict. In a number of essays (e.g. Barber & Ritter, Gaca & Curry) the authors analyze the contextual, political and social factors making the type of sexual violence experienced in conflict zones more or less likely. Almost without exception, the essays illuminate the persistence of trauma for women and the devastation wrought on their social and familial status. The book’s primary contribution is to reveal in a comparative and detailed manner the specificity and historical pedigree of violence against women in war. As a number of authors rightly note, while there has been increased contemporary attention to the violence experienced by women in wartime, attention to the historical record of gender-based violence has generally been limited. In connecting to the historical experiences of women in war, primarily as victims, we gain a deeper understanding of the patterns and variances in sexual violence, understanding its deep hold on the presumptions of normality for combatants, and grapple with the difficulties of undoing the masculinities that give rise to the behavioral norms in the first place. By exploring the historical and jurisdiction- specific nuance, contemporary writers, including ourselves, gain a better understanding of the commonality of victims’ experiences, perpetrator motivations, the relationship between wartime and peacetime sexual violence. Taken together, the chapters support and explain the contemporary feminist human rights moment.
To read more, please see our related review forthcoming in Human Rights Quarterly, May 2012.

Go On! Leiden Journal side event at ASIL Annual Meeting this month

noreply@blogger.com (Larissa van den Herik) — Mon, 12 Mar 2012 09:00:00 +0000

(Go On! is an occasional item on symposia and other events of interest)

On 30 March 2012, the Leiden Journal of International Law (LJIL), for which I serve as a an editor-in-chief, will celebrate its 25th anniversary during the American Society of International Law Annual Meeting. The journal will host a casual roundtable discussion featuring two articles in its latest issue, followed by Q&A and a cocktail reception.
You are warmly invited to join LJIL’s birthday party, which will take place at the Park Hyatt Washington, 1201 24th Street – across from the ASIL venue – from 6:15 p.m. till 8 p.m.
Here's the programme:
► Introduction by yours truly, Leiden Law Professor Larissa van den Herik, and my co-editor-in-chief, Amsterdam Law Professor Jean d’Aspremont
► Presentation of The End of ‘Modes of Liability’ for International Crimes by University of British Columbia Law Professor James G. Stewart
Discussant: IntLawGrrl and University of Georgia Law Professor Diane Marie Amann
► Presentation of Shades of Grey - Soft Law and the Validity of Public International Law, forthcoming in the next issue of LJIL, by McGill Law Professor Jaye Ellis
Discussant: University of Tartu, Estonia, Law Professor Lauri Mälksoo
► Q&A and discussion
► Cocktail reception
For more on LJIL, please visit our website.

On March 12

noreply@blogger.com (Diane Marie Amann) — Mon, 12 Mar 2012 07:04:00 +0000

On this day in ...
... 1947 (65 years ago today), amid concerns that Greece and Turkey were succumbing to Soviet influence, U.S. President Harry S. Truman described "a new foreign policy for the United States," as The New York Times called it. Specifically, Truman

'proposed that this country intervene wherever necessary throughout the world to prevent the subjection of free peoples to Communist-inspired totalitarian regimes at the expense of their national integrity and importance.'

The message, delivered in the speech before Congress depicted at right, included a request for $400 million to aid the beleaguered countries. (photo credit) This policy of "containment" became known as the Truman Doctrine.

(Prior March 12 posts are here, here, here, here, and here.)

Introducing Angela Duger

noreply@blogger.com (Jaya Ramji-Nogales) — Sun, 11 Mar 2012 11:44:00 +0000

It's our great pleasure to welcome Angela Duger (left) as an IntLawGrrls contributor.
Angela's the Ford Foundation Fellow at the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University School of Law. In this position, she conducts research and writing for the program’s domestic and international human rights projects and programming. Angela was also a facilitator of the 2011 PHRGE Institute “Framing Economic, Social and Cultural Rights for Advocacy and Mobilization: Towards a Strategic Agenda in the United States” conference.
Angela received her Juris Doctor from Northeastern University School of Law in 2011. During law school, Angela completed legal internships at the François Xavier Bagnoud Center for Health and Human Rights and Harvard School of Public Health as well as at a law firm in Lao PDR where she worked on a humanitarian law project for the International Federation of Red Cross and Red Crescent Societies. Angela has also served as a teaching assistant for IntLawGrrl Hope Lewis’s human rights seminar on race, gender and culture at Northeastern University School of Law as well as for Gillian MacNaughton’s class on human rights for policy and practice at the Heller School for Social Policy and Management at Brandeis University.
Angela is interested in human rights and its application to international development, as exemplified in her post today on last Tuesday's report by the Special Rapporteur on the Right to Food.
Angela dedicates her post to Helen Keller (pictured right), about whom she writes:

I admire Helen Keller for her courage and uncompromising dedication to social causes including women's rights.

She also notes that Helen was a founder of the American Civil Liberties Union. Today Helen Keller joins others so honored at IntLawGrrls' foremothers page.

The Right to Food, Obesity and Food Systems

noreply@blogger.com (Angela Duger) — Sun, 11 Mar 2012 10:30:00 +0000

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

On Tuesday, the Special Rapporteur on the Right to Food, Olivier De Schutter, presented to the United Nations Human Rights Council a groundbreaking report in which he uses the right to food to address issues of obesity and non-communicable diseases. Traditionally, the focus of the right to food's adequacy dimension has been on hunger and malnutrition, and this has been applied to programming and advocacy to address famines, to increase agricultural productivity, and to dispute agricultural trade agreements.
In his March 6, 2012 report, De Schutter unveils what he describes as the “triple challenge.” He identifies three problems caused by current food systems: (1) food systems are directed only at increasing agricultural productivity but not sustainability; (2) inadequate diets cause undernutrition and micronutrient deficiency; and (3) inadequate diets cause obesity and non-communicable disease. In this report, De Schutter links these three challenges to the adequacy element of the right to food and calls for a massive reform of the current food system to address them. International law recognizes the right to food in several instruments.
The right to food was first articulated in Article 25 of the Universal Declaration of Human Rights (UDHR), which states that:

[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food …

The International Convention on Economic, Social and Cultural Rights (ICESCR) reiterates this right in Article 11, which also recognizes the right of everyone to be free from hunger.
In General Comment 12, the Committee on Economic, Social and Cultural Rights (CESCR)defines the elements of the right to food as availability, accessibility, and adequacy. Adequate food means food in quality and quantity that is (1) sufficient to satisfy dietary needs, (b) both consumer and culturally acceptable, and (3) available both for present and future generations. Therefore, the adequacy dimension of the right to food incorporates issues of food production sustainability as well as dietary considerations.

The Special Rapporteur addresses precisely this nexus of adequate diets and food sustainability in his recent report. Based upon ICESCR Article 11 and CESCR General Comment 12, De Schutter writes that the right to food is:

The right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear.

He further describes state obligations to fulfill the adequacy dimension of food:

[The right to food] is an inclusive right to an adequate diet providing all the nutritional elements an individual requires to live a healthy and active life, and the means to access them. States have a duty to protect the right to an adequate diet, in particular by regulating the food system, and to fulfill the right to adequate food by proactively strengthening people‘s access to resources, allowing them to have adequate diets.

The Special Rapporteur's report is radical, both because it is the first to link human rights, food, and obesity, and because its approach to inadequate diets and non-communicable diseases is far more expansive than that of current INGOs addressing these issues. For example, the World Health Organization’s program on obesity and non-communicable diseases frames diets and physical activity as a physical public health priority. De Schutter explicitly states that malnutrition and obesity cannot be addressed solely from a public health perspective. His call to action requires a complete food system reform.
The Special Rapporteur has been active over the past few years researching the effects of food chains, agroecology, and agribusiness on the realization of the right to food. Based on this research, De Schutter links for the first time food systems with dietary consumption and obesity. He notes that,

We have created obesogenic environments and developed food systems that often work against, rather than facilitate, making healthier choices. The transformation of agrifood systems plays a major part in this trend.

The Special Rapporteur concludes that states should (1) protect the right to an adequate diet, including healthy food choices, and (2) ensure a transition to more sustainable food systems by implementing policies and laws that will reform the current food system to one that protects and realizes the right to food.
DeSchutter examines several exemplary measures states could utilize to promote and protect adequate diets. He suggests taxing unhealthy food products, reforming agricultural subsidies, and regulating market practices. The Special Rapporteur recommends that states tax soft drinks and foods high in saturated fats, trans-fatty acids, sodium and sugar, and utilize the revenue to either subsidize healthy foods or to promote healthy diets.
On the issue of agricultural subsidies, De Schutter is brief. He states that subsidies are often biased in favor of large grain producers and this has possible negative externalities on public health and the environment. The Special Rapporteur simply recommends a re-examination of agricultural subsidies with consideration for adequate diets.
He also discusses regulatory measures for breast milk and marketing unhealthy foods to children. This report is particularly timely for the United States, which is currently revising and reauthorizing the 2012 U.S. Farm Bill which addresses many of the issues outlined by the Special Rapporteur.
This report blazes new trails in considering both hunger and obesity as the result inadequate diets, calling for massive food system reforms to realize the right to food, and addressing head-on the contentious issues of agricultural subsidies and trade issues to realize the right to food.
(photo credit)

Go On! Corporations & Alien Tort Statute @ Georgetown

noreply@blogger.com (Diane Marie Amann) — Sun, 11 Mar 2012 09:00:00 +0000

(Go On! is an occasional item on symposia and other events of interest)

From our colleague David P. Stewart, Director of the Global Law Scholars Program, Co-Director of the Center for Transnational Business and the Law, and Visiting Professor of Law at Georgetown University Law Center in Washington, D.C., comes news of a topical event:
It's a day-long symposium on "Corporate Responsibility and the Alien Tort Statute," to be held on Tuesday, March 27, at Georgetown University Law Center in Washington, D.C.
Donald Francis Donovan, a partner at the New York law firm Debevoise & Plimpton who will be installed as President of the American Society of International Law at its annual meeting to be held March 28-31, will deliver the keynote address at this symposium.
Offering viewpoints on the Alien Tort Statute -- now under review by the U.S. Supreme Court in the Kiobel case -- will be an array of speakers. Confirmed panelists include IntlawGrrls contributor Vivian Curran (Pittsburgh) and U.S. State Department Counselor William S. Dodge, as well as William R. Casto (Texas Tech), Bradford R. Clark (George Washington), Jonathan C. Drimmer (Georgetown), John B. Bellinger III (Arnold & Porter), Jodi Westbrook Flowers (Motley Rice), Jonathan Hacker (O’Melveny & Myers/Harvard), Gary Clyde Hufbauer (Peterson Institute for International Economics), William A. Reinsch (National Foreign Trade Council), Beth Stephens (Rutgers-Camden), Nicole E. Erb (White & Case), Kristin Linsley Myles (Munger, Tolles & Olsen), and Kirsten Sjovoll (Matrix Chambers).
General information here; registration here.