Call for papers: Making international law work for women post-conflict- new voices

Transition from conflict to durable peace, defined as more than merely an absence of hostilities, is without the doubt a key priority for states emerging from conflicts and situations of gross human rights violations. International law plays a major part in this complex process. However, feminist international lawyers have argued that the discipline of international law has been largely developed by men and in ways which reflect male experiences, therefore legitimising women’s unequal position both in the context of international law as well as in national and international affairs.

Traditionally, international law focused on the position of women in wars exclusively from the perspective of international humanitarian law, emphasizing special protection afforded to women (predominantly as civilians) during armed conflict. However, in recent years, more attention has been paid to the applicability of international law to post-conflict situations, including women in the context of conflict prevention, transitional justice and post-conflict reconstruction. For instance, the landmark General Recommendation 30 (2013) of the CEDAW Committee confirmed that ‘protecting women’s human rights at all times, advancing substantive gender equality before, during and after conflict and ensuring that women’s diverse experiences are fully integrated into all peacebuilding, peacemaking, and reconstruction processes are important objectives of the Convention’. Furthermore, questions of gender dimensions of transitional periods, as well as matters concerning gender, peace and security have been at the forefront of academic as well as institutional debates concerning international law, women and post-conflict situations.

Nevertheless, current developments have been largely focused on issues of conflict-related sexual violence (CRSV) and prosecution of gender-based crimes largely to the exclusion of other branches of international law, such as international refugee law or international economic law, and their application to women & post-conflict situations.

For instance, issues such as gendered impact of post-conflict migration, the impact of post-conflict economic policies on women, provision of effective and gender-sensitive reparations and securing women’s socio-economic rights have been addressed to a much lesser extent than criminal accountability for CRSV.

This workshop seeks to bring together early career researchers to explore new perspectives on international law, women and post-conflict situations. It will address the multifaceted challenges facing women in post-conflict situations and to explore ways in which international law can (and should) be put to work in order to effectively assist women and secure their rights in the aftermath of contemporary conflicts. Contributions which explore the interdisciplinary perspectives on this theme as well as those which reach beyond the question of accountability for CRSV are particularly welcome.

The workshop will also present an opportunity for early career researchers to share their research with experts in the field of international law, women, peace and security.

Deadline: Titles and abstracts of no more than 300 words should be sent with a biography of no more than 100 words to Dr Olga Jurasz (il.newvoices@gmail.com) by 10am GMT on Monday 25 June 2018.

Participants will be asked to provide draft papers (4000 – 4500 words) in advance of the workshop.

Workshop: The workshop will be held on 26 and 27 November 2018 at Amnesty International, Human Rights Action Centre in London.

Eligibility: This is the workshop for early career researchers (max. 8 years from the award of a PhD or equivalent professional / research experience). Participation of early-career researchers from the Global South and conflict-affected countries is particularly welcome.

Funding: A limited number of travel & local accommodation grants are available for participants who are invited to present and would otherwise be unable to participate. Priority will be given to participants from the Global South and conflict-affected countries. If you wish to apply for a travel grant, please send the attached travel grant application together with your abstract. Please note that applications are considered on a case-by-case basis.

IL new voices – travel grant application

Outputs: Selected papers from the workshop will be published in an edited collection in 2019.

This workshop is supported by funding from the British Academy and from the Open University Citizenship & Governance Strategic Research Area.

IL New voices Workshop CFP

 

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Women challenge sexism in U.S. and Canadian guest worker programs through bold and innovative NAFTA labor petitions

In July  2016, UFCW Canada and Centro de los Derechos del Migrante (CDM)  filed petitions under NAFTA’s labor side agreement alleging sex discrimination in recruitment for the Canadian  Seasonal Orange tiger liliesAgricultural Worker Program (SAWP) and the U.S. H-2A and H-2B agricultural and low wage visa programs. In early 2018, CDM filed a supplement to its petition, arguing that sex discrimination is pervasive in recruitment for professional visa programs as well as low wage visa programs.

Because of sex discrimination in recruitment, less than 4 percent of the workers who participate in U.S. and Canadian agricultural and low wage guest worker programs are women. While working conditions in guest worker programs are rife with human and labor rights issues, they still represent economic opportunity for women who would like to participate.  Moreover, women who are excluded are forced into migration through informal channels, leading to the risk of violence, human trafficking, and even worse working conditions.

These two bold and innovative petitions highlight in a tangible and human way the bifurcation of global migrant labor markets.  Global migrant labor markets bifurcated based on gender exclude women from economic opportunity based on gender stereotyping. Discrimination in recruitment and treatment of women in the global migrant labor market is the norm, not the exception.

My forthcoming article in the Employee Rights and Employment Policy Journal discusses and compares the facts and claims raised in each petition under applicable legal frameworks in Canada, the U.S., Mexico, and the North American Agreement on Labor Cooperation (NAALC). The article explores possible outcomes of the petitions given the nuances and political environments in the Canadian and U.S. cases and the current state of relations between the Government of Mexico and its North American neighbors. Finally, the article places sexism and gender stereotyping in North American guest worker programs in an international context, discussing other examples of sexism in the global labor market and existing norms in ILO Conventions and CEDAW Recommendation No. 26 on Women Migrant Workers.

Row of flowers and sidewalkIn the Canadian case, the article argues that the Governments of Canada and Mexico should renegotiate international agreements that form the SAWP to implement the recommendations of the Mexican Council on the Prevention of Discrimination. In the U.S. case, the article argues that the Government of Mexico should pursue the establishment of an Evaluative Committee of Experts (ECE) under Article 23 of the NAALC if the U.S. does not enact and enforce meaningful reforms to eliminate sex discrimination in the H-2A and H-2B visa programs.

This article is the direct result of the supportive research community that has grown up around the IntLawGrrls blog. I first presented it as part of a wonderful panel at the IntLawGrrls 10th Birthday Conference in Athens, Georgia in March 2017.  Moderated by Jaya Ramji-Nogales and featuring Karen Bravo, Deepa Das Acevedo, and Urvashi Jain, this panel focused on exclusion – whether the exclusion of transgender children from schools in India, of persons from their fundamental humanity through slavery and human trafficking, of women from the Hindu temple at Sabarimala, or of women from economic opportunities represented by international guest worker programs.  I am grateful to my fellow panelists, to IntLawGrrls, and to the Dean Rusk International Law Center at the University of Georgia Law School for a transformative experience.

Olga PedrozaMy article is dedicated in part to Olga Pedroza of Las Cruces, New Mexico, who unfortunately passed away earlier this year. Olga was my boss when I worked as a farmworker intern at Southern New Mexico Legal Services during law school. Olga introduced me to a world I never imagined, where migrant farm workers sleep on sidewalks in El Paso to catch 4:00 a.m. school buses to ride hours away to pick chiles, tomatoes, and onions in Southern New Mexico.  It was because of Olga that I sat in a renovated chicken coop in Artesia, New Mexico, talking to a farmworker who told me that he and other farmworkers did not deserve any better. After her retirement from Southern New Mexico Legal Services, Olga served as a Law Cruces City Councilor for 8 years. Olga was a tireless and lifelong advocate for the excluded. She will be missed.

Modelling the rules of targeting

Maid of Orleans Jan Matejko

Jan Matejko “Maid of Orleans”

The rules of targeting of international humanitarian law play a pivotal role in protecting civilians. They achieve this by requiring military commanders to take appropriate steps when planning and executing military operations to mitigate danger to civilians. Yet, there is little guidance on how parties to the conflict apply the rules of targeting on the battlefield. Consequently, the task of Non-Governmental Organizations to hold parties to the conflict to account for breaches of the rules is extremely difficult. In the course of studying state practice on the rules of targeting I identified a number of trends which capture how commanders in all likelihood apply the rules of targeting to battlefield scenarios. A number of the findings challenge conventional views. This points to the fact that the debate concerning the rules of targeting continues to be necessary even though one can model how commanders apply the rules. I would like at this stage to share with you some of the conclusions I arrived at.

The principle of distinction requires attackers to distinguish at all times between civilians and combatants on the one hand, and civilian objects and military objectives on the other hand. The conventional view is contained in publications, such as the “Commentary to the Humanitarian Policy and Conflict Research Manual on Air and Missile Warfare.” It postulates that the degree of certainty the principle of distinction requires attackers to achieve is less than that entailed by the criminal law standard of proof of “beyond reasonable doubt.” However, it is concluded that the degree of required certainty is higher. The elements of available intelligence, urgency of acting, force security and the civilian harm which will result if the target is misidentified should each individually reinforce the conclusion that the target is a military objective in order for the attacker to be entitled to engage the target.

The rule of target verification requires the attacker to do everything “feasible” to verify that a chosen target is a military objective. Ian Henderson in his book “The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack Under Additional Protocol I” submits that the consideration of how many civilians will be killed if the target is misidentified and the likelihood of the target being a civilian object should play a role in a commander’s assessment of whether he or she is doing everything “feasible” to verify that the target is a military target. The examination of state practice reveals that commanders indeed balance the elements of the likelihood of harm to civilians occurring and the military advantage entailed in conducting further reconnaissance in assessing whether it is “feasible” to allocate additional resources to verifying the character of the target. They may additionally for policy reasons consider the number of civilians who will die if the target is mistakenly identified as having military character. The obligation to comply with the principle of distinction is one of the reasons why commanders do not view the magnitude of potential civilian harm as a core component of the rule of target verification. I was able to derive propositions capturing when commanders are likely to give greater weight either to the likelihood of civilian harm or to particular military considerations, such as the urgency of engaging the target.

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Introducing Tanya Krupiy

Tanya Krupiy photo 2It is our great pleasure to introduce our new IntLawGrrls contributor Tanya Krupiy. Tanya Krupiy carries out consultancy work in the areas of international human rights law, international humanitarian law, the law of the use of force and international criminal law. In the capacity as a consultant Tanya creates teaching materials and toolkits to facilitate the ability of organizations to implement international legal standards. In 2015 the Social Sciences and Humanities Research Council of Canada awarded her funding to carry out a postdoctoral fellowship at McGill University. Tanya developed a legal test for how to locate criminal accountability to a senior politician, senior Department of Defense official, corporate directors, senior programmer, military commander and operator for war crimes brought about by the operation of a lethal autonomous weapon system. Tanya holds a Master of Laws with distinction from the London School of Economics and Political Science, and a Doctor of Philosophy from the University of Essex.

Heartfelt Welcome!

“Bemba and Beyond,” reflections on command responsibility

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

(Cross-posted from Diane Marie Amann)

Trump Administration’s Family Separation Policy Violates International Law

In April U.S. Attorney General Jeff Sessions announced a “zero tolerance” policy for illegal entry at the southwest border of the United States. He directed U.S. Attorney’s Offices at the border to prosecute, to the extent possible, all cases of persons crossing the border without authorization. He stated that the policy was made with the purpose of “deterring first-time improper entrants.”

girl

Since May the policy has led to hundreds of children being separated from their parents at the border as they are being charged in criminal court. Most of the families being separated are asylum seekers fleeing violence in Central America. The American Civil Liberties Union (ACLU) has already filed a law suit against the U.S. government for this practice, alleging U.S. Constitutional violations and other violations under U.S. law. A judge in this case recently rejected the government’s motion to dismiss the complaint and stated that the allegations within it “shock the conscience.”

This post focuses on the family separation policy’s illegality under international law as a violation of the rights of children and the right to family. The post explains how family separation violates several international treaties and conventions that the U.S. must comply with. It also examines what is being done by advocates and international bodies to condemn and bring an end to this appalling practice. Finally, it argues that although the policy of family separation is clearly illegal under international law, the U.S. has yet to ratify key treaties and provisions, and enact federal law that would create enforcement mechanisms for its legal obligations and give individuals a cause for action for rights violations in U.S. courts.

Convention on the Rights of the Child (CRC)

The 1989 Convention on the Rights of the Child (“Convention” or “CRC”) mandates that states employ a “best interest of the child” standard in actions that effect children. Several provisions within the Convention specifically address the rights of children to be with their parents and family including Article 7 (the right to know and be cared for by one’s parent) and Article 8 (the right to family relations without interference).

Article 9 of the Convention specifically bans separation of parents from children except in limited circumstances (when it is necessary to ensure the best interest of the child). Under the Convention:

State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence

Under Article 9 of the CRC, when states do separate children from their parents they must allow children to “maintain personal relations and direct contact with both parents on a regular basis…” and must also keep children informed of their parents’ whereabouts.

The U.S. signed the CRC in February 1995 but has never ratified the Convention. Currently 196 states are party to the Convention and the United States is the only U.N. state that is not party. Nonetheless, under Article 18 of the Vienna Convention on the Law of Treaties (VCLT) as a signatory to the CRC the U.S. must “refrain from acts which would defeat the object and purpose of [the] treaty.” Furthermore, as a treaty that has been signed by every country in the world, at least some provisions within the Convention could be found to have reached the status of customary international law, and therefore also be binding on the United States.

The policy of family separation clearly and directly violates the articles of the CRC mentioned above and the object and purpose of the Convention. The U.S. is not separating children from their parents in their best interest but as a deterrent and punishment for their parents’ unauthorized entry into the United States. The policy will have devastating consequences for the children and parents affected. The American Psychological Association (APA) has issued a statement that the family separation policy “is not only needless and cruel, it threatens the mental and physical health of both the children and their caregivers.”

 The American Declaration on the Rights and Duties of Man and the American Convention on Human Rights

 The American Declaration on the Rights and Duties of Man (“American Declaration”), to which the U.S. is party, contains Article V (the right to private and family life), Article VI (the right to establish a family) and Article VII (the right to special protection and aid for children) which the practice of family separation violates.

The American Convention on Human Rights (“American Convention”) includes Article 7 (right to personal liberty), Article 11 (right to privacy), Article 17 (right to family) and Article 19 (rights of the child) which the practice of family separation also violates. Article 11 is most relevant and states “[n]o one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.” Like the CRC, the U.S. has signed but not ratified the American Convention and should therefore refrain from acts that violate its object and purpose.

Although the U.S. has not ratified the American Convention the Inter-American Commission on Human Rights still has limited jurisdiction over the United States. Because the U.S. is a member of the Organization of American States and is party to the American Declaration individuals can bring complaints to the Commission regarding violations of the American Declaration.

Civil and human rights groups recently filed a complaint on behalf of several individuals against the Trump administration’s family separation policy with the Commission alleging violations to family life and to the rights of the child. The Inter-American human rights system is a two-tiered system where cases are first submitted to the Inter-American Commission on Human Rights and can then be forwarded to the Inter-American Court of Human Rights in the case of non-compliance. Because the U.S. has not accepted the jurisdiction of the Court, however, cases against the U.S. cannot be sent from the Commission to the Court, which issues binding decisions.

International Covenant on Civil and Political Rights (ICCPR)

 The International Covenant on Civil and Political Rights (ICCPR), unlike the international instruments mentioned above, has been signed and ratified by the United States. Under Article 17 of the ICCPR “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Article 23 states that “family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Although the U.S. is bound by the articles of the ICCPR, they are currently difficult to enforce. Under U.S. law there is no cause of action for litigants alleging violations of its provisions in U.S. courts because the ICCPR has not been incorporated directly into federal law by Congress.

Furthermore, the U.S. has not adopted the protocol that would give the U.N. Human Rights Committee authority to receive complaints against the U.S. for violations of the ICCPR. The office for the United Nations High Commissioner for Human Rights, however, recently called on the U.S. to stop the practice of family separation stating the practice runs counter to human rights principles including the right to family life and the rights of the child, included in the ICCPR.

 Refugee Convention/Protocol

 The U.S. is party to 1967 Protocol Relating to the Status of Refugees and key provision have been incorporated into U.S. law giving individuals a cause for action for litigation. Under U.S. federal law “any alien who is physically present in the United States or who arrives in the United States  (whether or not at a designated port of arrival and including an alien who is brought to the United States  after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum…”

Because the right to seek asylum and the definition of refugee, which stems from an international treaty, is directly incorporated into U.S. law it creates a legal cause for action and is the only international law mentioned in the domestic ACLU law suit.

Conclusion

Analysis of Trump administration’s family separation policy demonstrates that although the practice is clearly illegal under several international treaties that the U.S. must comply with, enforcement mechanisms are lacking. The lack of enforcement mechanisms needs to be remedied especially in relation to the rights of children, a vulnerable group. The U.S. desperately needs to ratify the Convention on the Rights of the Child and codify its provisions within federal law to ensure that the rights of children (especially noncitizen children) are not violated by U.S. immigration policy.

Go On! International Law: A Casualty in the ‘War of Terror’ at Cardozo School of Law

Go On! makes note of interesting conferences, lectures, and similar events.

►  The Benjamin N. Cardozo School of Law is hosting an event entitled International Law: A Casualty in the ‘War on Terror’? on June 18, 2018 at 6pm in New York. A reception is to follow. Professor Gabor Rona of Cardozo School of Law and Professor Marco Sassoli of the University of Geneva will hold a discussion of how international law related to national security fares in the Trump era. 

The event is free, but please register here in advance.

 

The Rise of Investor-State Arbitration Book Launch at ICSID

Today, investor-state arbitration embodies the worst fears of those concerned about runaway globalization – a far cry from its framers’ intentions. Why did governments create a special legal system in which foreign investors can bring cases directly against states? This book takes readers through the key decisions that created investor-state arbitration, drawing on internal documents from several governments and extensive interviews to illustrate the politics behind this new legal system.

The corporations and law firms that dominate investor-state arbitration today were not present at its creation. In fact, there was almost no lobbying from investors. Nor did powerful states have a strong preference for it. Nor was it created because there was evidence that it facilitates investment – there was no such evidence.

International officials with peacebuilding and development aims drove the rise of investor-state arbitration. This book puts forward a new historical institutionalist explanation to illuminate how the actions of these officials kicked off a process of gradual institutional development. While these officials anticipated many developments, including an enormous caseload from investment treaties, over time this institutional framework they created has been put to new purposes by different actors. Institutions do not determine the purposes to which they may be put, and this book’s analysis illustrates how unintended consequences emerge and why institutions persist regardless.

Taylor St John is a Postdoctoral Research Fellow at PluriCourts, University of Oslo, and a Senior Research Associate at the Global Economic Governance Programme, University of Oxford. She will start as a Lecturer in International Relations at the University of St Andrews in Fall 2018. Her research focuses on the international architecture to resolve disputes between foreign investors and host states, and the politics of investment law and foreign investment more generally. She holds an MSc and D.Phil from the University of Oxford and a BA from the College of Idaho.

The Rise of Investor-State Arbitration: Online Book Launch at the ICSID Secretariat

 

Date: June 5, 11am-1pm (Eastern Standard Time)

 

Young ICSID is hosting a book launch for Taylor St John’s The Rise of Investor-State Arbitration. St John will present the book, then Antonio Parra, former Deputy Secretary General of ICSID, and Sudhanshu Roy, Foley Hoag, formerly of the Indian government, will provide comments on the book.

 

You are welcome to attend the event in person at the World Bank in Washington DC or participate online in real time. For more information, and to register to participate either in person or online, see: https://icsid.worldbank.org/en/Pages/Events.aspx?CID=181

 

If you would like to participate, please email the ICSID Secretariat at youngicsid@worldbank.org <mailto:youngicsid@worldbank.org> You are welcome to email questions for the speakers in advance.

 

For more information on The Rise of Investor-State Arbitration, see https://global.oup.com/academic/product/the-rise-of-investor-state-arbitration-9780198789918