Write On! India’s NUALS Law Journal

backlit_keyboardThis installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers, as follows:

► India’s National University of Advanced Legal Studies’ (NUALS) Law Journal is inviting submissions for its 12th Edition. The Journal, being the flagship law review of the NUALS, is a multidisciplinary, double-blind, peer-reviewed journal.

They are welcoming submissions on any topic of the law of contemporary relevance both international or domestic, from academicians, legal practitioners, students and researchers from the legal community.

Articles should be 3000 to 6000 words (inclusive of footnotes) and short notes/commentaries should be 1000 to 3000 words.

Submissions must be sent to lawjournal@nuals.ac.in by January 3, 2018, and must include an abstract. For questions email journalnuals@gmail.com 

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Lecture on a Nuremberg woman, November 29 in New Orleans

Longtime readers will know of IntLawGrrls’ abiding interest in “Women at Nuremberg”; that is, women lawyers, women journalists, and other women who played seldom-remarked roles at the post-World War II war crimes trials at Nuremberg. Louisiana-area readers are advised to take advantage of an opportunity to learn about one such woman: “Bessie Margolin and the Nuremberg War Crimes Trials” will be presented from 12 noon-1 p.m. Wednesday, November 29, as a Lagniappe Lecture at the National WWII Museum, 945 Magazine Street, New Orleans.

The speaker will be Marlene Trestman, lawyer and author of Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin (2016), a superb biography of an extraordinary lawyer who helped shape the . The book succeeds Trestman’s 2012 journal article about Margolin, about which I wrote here.

If you’re in the area, this lecture, to be followed by a book signing, is well worth attending. Details here.

Online harassment of women journalists and international law: not “just” a gender issue, but a threat to democracy

Democracy

Image by ydant (CC BY-NC-ND 2.0)

Online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights; a pluralistic media landscape needs to include women’s voices. Silencing women journalists therefore constitutes an attack on democracy itself. States should address the issue with the gravity it deserves and live up to their international obligations to put in place domestic legal systems capable of responding adequately to these attacks.

 

The problem

When a 14-year-old girl was raped in Finland, journalist Linda Pelkonen covered the case on the news website Uusi Suomi. In her report, she mentioned that, contrary to regular practice, the police had referred to the suspect’s ethnicity: allegedly a Finnish citizen of immigrant background had been involved. A post smearing Pelkonen appeared on the anti-immigrant MV Lehti website, after which she received a host of rape and death threats. After a reader published Pelkonen’s personal phone number in the website’s comment section, encouraging others to inform the journalist of their discontent, she received threatening text messages from 18 different phone numbers, and a phone call telling her she would be raped. Pelkonen reported the threats to the police, informing them that she was scared. Declining to investigate, the regional prosecutor argued that journalists, due to the public nature of their work, needed “to be able to endure more criticism than others.”

UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts

Sadly, Pelkonen’s case is hardly an exception. No comprehensive study on the pervasiveness of online harassment of women journalists has been conducted yet, but the data available paint a gloomy picture. UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts. A survey conducted by the International Women’s Media Foundation showed that over 25% of “verbal, written and/or physical intimidation including threats, to family or friends” took place online.

This week, the OSCE Representative on Freedom of the Media organised its second workshop this year on the safety of female journalists online. In addition to discussing issues such as digital security and civil society initiatives like HeartMob, the workshop addressed the international legal framework within which the online harassment of women journalists should be placed.

“Online” harassment

What are we talking about when we say “online” harassment of women journalists? It covers a broad range of actions, including threats of (sexual) violence, the spreading of falsehoods about a person asserted as facts, the posting of sensitive information online (home address, personal phone number, social security numbers), technological attacks such as falsely shutting down social media accounts, (sexist, racist) insults, and swatting.

The distinction between the “online” and “offline” world is artificial. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

The distinction between the “online” and “offline” world is artificial. To the extent that any separation between these dimensions of our lives could still be made today, any “online” harassment will always have a “real world” effect. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

This is underlined by UN Human Rights Council Resolution L.13  on the promotion, protection and enjoyment of human rights on the Internet, which affirms that “the same rights that people have offline must also be protected online, in particular freedom of expression”. Similarly, the OSCE Representative on Freedom of the Media issued recommendations in 2015, stating that “online abuse must be dealt with in the broader context of gender discrimination and violence against women to ensure that the same rights that people have offline must be protected online.”

International legal standards: at the intersection of freedom of expression and gender

The issue of harassment of women journalists needs to be framed from all relevant perspectives: as a freedom of expression issue and as an issue of gender-based violence against women.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is further elucidated by the UN Human Rights Committee in General Comment 34, makes clear that the right to freedom of expression is a key right that can only be restricted under a limited set of circumstances. It is both an individual right of personal self-fulfilment and a collective right, allowing all members of society to receive information and ideas and inform themselves on matters of public interest. Journalists have a special role to play in this democratic process. As the UN Human Rights Committee, which oversees compliance with the ICCPR, frames it: “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression … It constitutes one of the cornerstones of a democratic society.”

For the States that are party to the ICCPR (or one of its regional counterparts, the European Convention on Human Rights, American Convention on Human Rights or African Charter on Human and Peoples’ Rights), this also entails an obligation to ensure a diverse media landscape, both online and offline.

Attacks on women journalists are attacks on democracy itself.

The Convention on the Elimination of Discrimination against Women, often referred to as the “international bill of rights for women” defines discrimination against women and sets up an agenda for national action to end it. The CEDAW Committee, which oversees States’ compliance with the Convention, stated in General Recommendation 19, recently updated by General Recommendation 35, that gender-based violence against women constitutes discrimination against women. The Committee defines it as: “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.” Online harassment of women journalists falls squarely within this definition, as is explicitly

6 February 1998 - Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing

6 February 1998 – Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing.

mentioned in the General Recommendation: “Harmful practices and crimes against women human rights defenders, politicians, activists or journalists are also forms of gender-based violence against women.”

The interlinkage between the right to freedom of expression and women’s right to be free from discrimination is also made explicit: “Women’s right to a life free from gender-based violence is indivisible from and interdependent with other human rights, including the right to … freedom of expression.”

This is where the crux lies: the online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Council of Europe Recommendation CM/Rec(2016)4 of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors sums this up succinctly: “[acts of online harassment of women journalists] which in practice are committed by both State and non-State actors, have a grave chilling effect on freedom of expression including on the ability to access information, on the public watchdog role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society.”

In other words: attacks on women journalists are attacks on democracy itself.

States’ obligations to create conditions for effective investigation, prosecution and protection

When signing on to a human rights treaty, a State takes it upon itself to respect, protect and fulfil its obligations under that treaty. The obligation to respect means that the State must refrain from interfering with or curtailing the enjoyment of the human rights contained in the treaty; the obligation to protect means that the State must protect individuals and groups against human rights abuses; and the obligation to fulfil means that the State must take positive action to facilitate the enjoyment these human rights.

These obligations are applicable to all branches of the State and all public or governmental authorities, at all levels that are in a position to engage the responsibility of the State. They also require the State to ensure that persons are protected from acts by private persons or entities that impair the enjoyment of the relevant human rights.

There is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted.

Specifically, there is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted. CEDAW General Recommendation 35 stipulates that “[S]tates parties have to adopt and implement diverse measures to tackle gender-based violence against women committed by non-State actors. They are required to have laws, institutions and a system in place to address such violence.”

Failing to do so constitutes a human rights violation in and of itself: “The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and to provide reparation to victims/survivors of such acts, provides tacit permission or encouragement to acts of gender-based violence against women. These failures or omissions constitute human rights violations.”

National law and online harassment

What recourse can national legal systems offer to those targeted by online harassment? Generally, there are two possible tracks: civil proceedings or the criminal justice system.

Bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Under the civil law system, the target of harassment can initiate legal action against the attacker, suing them for a civil wrong. In some cases, for example if personal photos have been stolen and published, a copyright claim is also an option. The outcome of civil proceedings can be monetary compensation for the claimant and personal vindication for having won (or even pursued) the case. But bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age.

Remedies in the criminal justice system can be a restraining order against the attacker, a criminal penalty, and in some systems also monetary compensation. Pursuing a case within the criminal justice system entails filing a complaint with the authorities, after which prosecution can follow. In most systems, the prosecutor will have discretionary powers to decide whether or not to pursue a case. As illustrated by the case of Pelkonen described above, adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age. Combined with a lack of understanding of modern technology by both law enforcement and judges, this can lead to a frustrating experience for those wanting to file a complaint about harassment. Journalist Amanda Hess described this aptly in her account of trying to file a report on death threats she received, upon which a police officer asked her “What is Twitter?”. In addition, law enforcement can be too under-educated and under-resourced to properly follow up and investigate even if they are willing to register a complaint.

When the regional prosecutor failed to follow up, Pelkonen did not give up. She filed a complaint at the prosecutor’s office together with the Union of Journalists in Finland, arguing that failing to prosecute her case would set a dangerous precedent. Finland’s Prosecutor General then decided to take up the case, which resulted in three men being charged in May 2017. The first hearing in the case is scheduled to take place in early 2018.

A threat to democracy itself

While the prosecution in Pelkonen’s case is a positive (interim) outcome, this by no means is an example of what should happen in these scenarios. The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule. States can and should do better in this regard.

The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule.

There is often a tendency to brush gender issues aside as “niche”. Given that women make up about half of the world’s population, this is a questionable argument as such, but it also simply isn’t true.

Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights. There is a clear obligation of States to protect these rights and guarantee a pluralistic media landscape – a media landscape that includes women’s voices. Silencing women journalists is an attack on democracy itself and it should be dealt with, with the gravity it deserves.

This post has been cross-posted on Medium.

Write On! [Slavery Past, Present In & Future]

This installment of Write On!, our periodic compilation of calls for papers, includes calls to present at Indiana University Europe Gateway, Berlin, as follows:

chains.jpgThird Global Meeting: Slavery Past, Present and Future, to be held July 10 & 11, 2018, at Indiana University Europe Gateway in Berlin, Germany. Theme is “Slavery Past, Present and Future.”

Controversial estimates indicate that up to 35 million people worldwide are enslaved today.  This modern re-emergence of slavery, following legal abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities. This conference will explore slavery in all its dimensions and, in particular, the ways in which individual humans and societies understand and attempt to respond to it.

Deadline is Friday, March 2, 2018. For more information, click here.


On the Job! [Helton Fellowship]

On the Job! compiles interesting vacancy notices, as follows:
ASIL

 Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.

Call for Nominations: Francis Lieber Prize

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)
 

Between Kurdistan and Catalonia: On the Right to Self-Determination of Peoples

 

 

images

source: picquery.com

Two different peoples in far apart regions are currently struggling to fulfill their right to self-determination and establish a state of their own: the Catalans in Spain and the Kurds in Iraq. The governments of both Spain and Iraq oppose these initiatives. Following Catalan’s declaration of independence, the Spanish government took dramatic legal steps against Catalonia’s President Carles Puigdemont and Vice President Oriol Junqueras, stripping the Catalan government of its powers. In Iraq, the vote for independence of the Kurds sparked military clashes between the Kurds and the Iraqi governments. Are the governments of Spain and Iraq justified or wrong in their opposition? What are the differences and similarities between their reactions?

The right to self-determination of peoples is a fundamental human right, recognized by the 1966 human rights covenants and by the U.N.G.A resolution on Friendly Relations and Co-operation among States from 24 October 1970. These documents state that, by virtue of the right to self-determination, “all peoples freely determine their political status and freely pursue their economic, social and cultural development.” This notwithstanding, the Friendly Relations declaration ensures another right that allegedly conflicts with the right of self determination—that is, states’ right to territorial integrity.

The resolution of the conflict is embodied in the concept of internal self-determination, also promulgated by the Friendly Relations declaration. States should allow the peoples in their territory to fulfill their right to internal self-determination by “possess[ing] of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” Only such states are entitled to the right of territorial integrity. If peoples under their governance can’t fulfill their right to internal self-determination, they have the right to secede and establish an independent state, thereby fulfilling their right to external self-determination. This was the interpretation Canadian Supreme Court adopted in dealing with the question of the legitimacy of Quebec’s secession from Canada. One of the arguments for delegitimizing Quebec’s secession was that the Quebecois were already fulfilling their right to internal self-determination and thereby were not entitled to demand external self-determination.

The above analysis suggests that the legitimacy of the Spanish and Iraqi governments’ reactions to the initiatives of secession in their territories is contingent upon whether these governments represent the whole people belonging to the territory without distinction as to race, creed or colour—in other words, whether they fulfill peoples’ rights to internal self-determination.

The form of governance that best implements the right to internal self-determination of peoples is democratic federalism. The federal system answers the demands of national minorities for self-government in the form of territorial autonomy, as it creates regional political units controlled by these minorities and endows them with constitutional protected powers of self-government. But federalism also, and more importantly, sustains the larger political entity, that is, the state. And finally, democratic federalism is the best system for incorporating and expressing the demands and wishes of the state’s subjects.

Iraq is formally a federal government while Spain is not—but when we compare the Catalans and the Kurds’ level of fulfillment of their rights to internal self-determination (and hence the legitimacy or illegitimacy of their demands for secession), our findings are quite surprising.

Spain is a parliamentary democracy allowing for the regional autonomy of seventeen communities—in a form of “asymmetrical federalism.” This system, through constitutional recognition of self-rule and cultural diversity, provides for a decentralization of powers and responsibilities. Yet, it also preserves Spain’s unity. The Spanish constitution constructs the Spanish state upon a concept of “sub-state nacionalidad,” which on the one hand provides for regional self-rule, and on the other hand proclaims the principle of solidarity that institutions of the state should implement. This means that the Catalans have a normative political infrastructure for fulfilling their rights for internal self-determination, and the Spanish government does not deny it in practice.

The Kurds’ case is completely different. While Iraq is formally a federal state, in which Kurdistan is an autonomous area, it is a weak and fragile democracy. The government’s general ability to secure human rights is often jeopardized by internal armed conflicts and insurrections, and this undermines the government’s ability to protect the Kurds’ right for internal self-determination.

The conclusion is that the non-federal Spanish government is justified in the steps it takes against the Catalan ambitions. In contrast, the federal Iraqi offensive against Kurdish fighters near the border with Turkey and Syria is a breach of the Friendly Relations declaration’s call  “to refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence.” Formalities can be misleading; legal conclusions are sometimes beyond black letter law.

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