Read On! Protection of Refugees and Migrants against Xenophobia

In response to the terrorist attack against Mexicans and Mexican Americans on August 3, 2019, the UN Secretary General stressed “the need for all to work together to counter violence rooted in hatred, racism, xenophobia and all forms of discrimination.”[3] The transnational evolution of xenophobia requires a committed response by the international community. My article in the latest edition of the Brazilian Yearbook of International Law discusess the rise of nativism, populism, and authoritarianism in the world and the situation of foreigners and persons perceived to foreigners, including refugees and IDPs. There are currently three scenarios faced by refugees and IDPs: protracted camps/warehousing, urbanization, and detention. This article outlines the range of human rights violations and accountability gaps in each of the three scenarios faced by refugees, arguing that these are examples of structural xenophobia. It discusses normative gaps within international law and analyzes the role of compliance mechanisms in the UN Human Rights Treaty Body Regime and regional human rights bodies. The article underscores the risk of inaction by the international community in the face of discrimination against refugees, using the case study of Norway.  The conclusion suggests a way forward by supporting the proposal for a new Protocol to the UN Convention on the Elimination of Racial Discrimination addressing xenophobia.  The Yearbook is available here


[1] See UN General Assembly Resolution 73/262, A Global Call for Concrete Action for the Total Elimination of Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/Res/73/262 (15 January 2019).

[2] https://www.theguardian.com/us-news/2019/aug/04/mexico-legal-action-us-terrorism-amlo

[3] SG/SM/19689 5 August 2019

Go On! Rule of Law for Oceans, 4-5 November 2019

Conference in Oslo, Norway: Is law fit for purpose to protect the oceans against increasing pressures and demands? This two-day conference aims at analyzing new trends in the law of the sea, international environmental law, and related fields of law, and discussions related to the effectiveness of certain tools and mechanisms.

The Research Group on International Law and Governance (University of Oslo, Law Faculty) and the Norwegian Institute for Water Research (NIVA) organize this conference to advance discussions on the gaps and challenges in law related to the protection of oceans, and to bring forward novel legal approaches and solutions.  

The oceans are under increasing pressure from climate change, (micro)plastic pollution, loss of biodiversity, habitat destruction, unsustainable use, to name but a few, which all adversely affect the resilience of our oceans.  UN Sustainable Development Goal 14 specifically requires us to conserve and sustainably use the oceans, seas and marine resources. Key to sustainable ocean governance is the understanding of ecosystem functioning and the appreciation of interactions and interconnections among marine ecosystems, land and sea, oceans and climate, and interactions between marine and other types of ecosystems. Changes in the ecosystem functioning and resilience often have consequences far beyond in time and geographical scope and require robust but flexible and comprehensive regulatory solutions and approaches.

International law, including the UN Convention on the Law of the Sea and the Convention on Biological Diversity, provides for a framework governing States’ rights and obligations with respect to the use of oceans and their resources, protection of the environment and biodiversity as well as responsibility for the damage caused to the oceans arising from unlawful activities of different actors. Regional agreements such as OSPAR and HELCOM have similar purposes for regional seas. National legal systems also play a crucial role in the implementation of international and regional obligations. The legal system is fragmented and comprehensive, but is the law ripe for protecting oceans in the face of increasing environmental challenges and human demands? Are legal frameworks effective, strong, and flexible enough to address new challenges and pressures in light of advanced scientific knowledge and understanding of oceans? This conference aims to discuss and reflect on how we could strengthen the rule of law for Oceans.

Where can existing laws evolve, adapt and improve? And where do we have to think afresh? Which innovative approaches and mechanisms are being adopted or under discussion and what could be their advantages?

Please send your abstract (max 300 words) and a short resume to Professor Alla Pozdnakova no later than 15th August 2019. You will be notified by 1st September 2019. Full link to conference call: here

Please mark your email with “Abstract for the Ocean Conference Oslo”. Abstracts submitted after the deadline will not be considered.

The organizing committee,

Alla Pozdnakova                                Froukje Maria Platjouw

Alla.pozdnakova@jus.uio.no               fmp@niva.no

Faculty of Law, University of Oslo       Faculty of Law, University of Oslo,  Norwegian Institute for Water Research            

Read On! Research Handbook on International Law and Peace

I am pleased to announce the publication of the Research Handbook on International Law and Peace. Peace is an elusive concept, especially within the field of international law, varying according to historical era and between contextual applications within different cultures, institutions, societies, and academic traditions. This Research Handbook responds to the gap created by the neglect of peace in international law scholarship.
Explaining the normative evolution of peace from the principles of peaceful co-existence to the UN declaration on the right to peace, this Research Handbook calls for the fortification of international institutions to facilitate the pursuit of sustainable peace as a public good.
It sets forth a new agenda for research that invites scholars from a broad array of disciplines and fields of law to analyse the contribution of international institutions to the construction and implementation of sustainable peace. With its critical examination of courts, transitional justice institutions, dispute resolution and fact-finding mechanisms, this Research Handbook goes beyond the traditional focus on post-conflict resolution, and includes areas not usually found in analyses of peace such as investment and trade law. Bringing together contributions from leading researchers in the field of international law and peace, this Research Handbook analyses peace in the context of law applicable to women, refugees, environmentalism, sustainable development, disarmament, and other key contemporary issues. This volume includes the voices of several women scholars from a variety of disciplines: Kjersti Skarstad, Maja Janmyr, Cecilie Hellesveit, Vibeke Blaker Strand, Jemima Garcia-Godos, Cornelia Weiss, Azin Tadjini, Gro Nystuen, and Christina Voigt. The book aims to assist policymakers, practitioners, and academics in the fields of international law, human rights, jus post bellum, and development. It is available here: https://www.elgaronline.com/view/edcoll/9781788117463/9781788117463.xml



Model Guidelines on Non-Discrimination, Equality, and Diversity within Research

We have received positive feedback from women and men around the world and have received a request to include equal pay standards. Hence, we re-publish the updated Model Guidelines with a special thanks to Jennifer Svanfeldt, Partner at the Women Owned GBG Employment Defense Counsel, who kindly drafted the new section on equal pay. Additional suggestions are welcome, so please do let us know if there are other issues we should address!

Other helpful guidelines and links to training videos are: the Guide from York U, the Guide from NYU, the policy from Oxford University; Oxford harassment training; Buffalo University, and the University for Peace on retaliation and harassment.

If you feel that you are being subjected to discrimination or harassment please keep a written record of what you have experienced.

The Model Guidelines

The Faculty of Law is committed to providing a positive research environment which recognizes diversity as a strength and source of creativity. The Faculty of Law seeks to enable researchers of diverse backgrounds to be able to pursue their intellectual aspirations and enjoy a meaningful careers. The increased recruitment of women and persons of diverse backgrounds to research positions and research leadership positions is an aim of the Faculty of Law. For women and persons of diverse backgrounds to enjoy equality in research programs, this requires equal right to inclusive participation, respect, and access to possibilities for advancement and enjoyment of the workplace environment. Research programs/groups are obligated to prevent discrimination by taking concrete action to correct discriminatory attitudes and structures and promote a respectful workplace environment.

Positive Structural Actions The Faculty of Law will take specific measures to ensure that all researchers, irrespective gender, transgender identity or expression, national, racial or ethnic origin, religion or belief, disability, sexual orientation or age will have equal access to research opportunities and shall not be subjected to diminished prestige and lack of power.

Recruitment: Research programs will make best efforts to recruit women and persons of diverse backgrounds as researchers and research leaders- through processes that are inclusive, clear, accessible, and transparent. The Faculty of Law will endeavor to enable researchers to pursue research-related teaching.

Evaluation: The heightened visibility of women and persons of diverse backgrounds as researchers and research leaders risks increased pressure and overly critical examination of their performance, prompting overachievement or underachievement. Evaluations should be designed to identify such risks and respond with an adequate strategy.

Transparancy: The Faculty of Law commits to upholding the principle of transparency in recruitment, evaluation, advancement, and demotion/dismissal of women and persons of diverse background within research programs.

Reporting: Research programs will submit reports on what actions they have taken to promote equal participation and advancement of women and diverse researchers. Research groups are to identify and correct both formal and informal mechanisms of subordination and marginalization. Research Leaders are to set empowerment goals for female and diverse researchers at all levels. LIMU will conduct an evaluation in situations where there are women leaving research projects.

Prizes and Citations: The Faculty of Law will commit to nominating women for research prizes, maintain a bibliography of research by women, promoting a citation policy which reminds academic staff to cite women researchers, assist women researchers in attaining access to research conferences, etc.

Seminars/Workshops to promote Advancement and Retention of Women Researchers:  The Faculty of Law commits to increasing the appointment of women to Research Leadership positions and ensuring retention of women leaders. The Law Faculty will offer workshops to women researchers on relevant topics, such as improving the CV, writing research applications, publishing in international journals, Understanding Gender Dimensions of Leadership/Women Role Models. Women researchers at all levels will be given information on their rights and possibility for redress.

The Faculty of Law will also offer regular gender training to Research Leaders to promote awareness, such as Recognizing Unconscious Gender Bias, Devaluation, Exclusion, and Stereotyping when evaluating and interacting with women research staff, Strategies for Retention of Women Research Leaders, Supporting the Work-Life Balance, etc. Research leaders are to understand that commitment to gender equality is measurable in words and actions.

Research Forum: The Faculty of Law will establish a Research Forum where researchers can meet to discuss research ideas and experiences with each other and discuss gender equality practices.

Mentor Program: Women researchers and researchers of diverse backgrounds may benefit from access to mentors to discuss the challenges of pursuing research.] The Faculty of Law will expand the mentor program to encourage women researchers and researchers of diverse backgrounds (including research fellows, researchers, and research leaders) to seek and serve as mentors.

Access to research assistance: The Faculty of Law will provide research assistance to women researchers in order to facilitate meeting research deadlines.[

Mobility: Women researchers have lower rates of mobility. One aspect is the challenge presented by combination of parenthood responsibilities with a research career. The Faculty of Law shall aim to solicit funds to create a grant for parents seeking to pursue research stays abroad in order to support costs relating to childcare, education, or other costs related to the maintenance of children abroad.

Women researchers will not be forced to commute away from small children when part of a research project. Facilitation of part-time physical presence should be pursued in order to support the balance of family commitments and academic career.I

Equal Pay: The Faculty of Law will commit to compensating researchers and research leaders who perform substantially similar work equitably when viewed as a composite of skill, effort, and responsibility, and will regularly review compensation to ensure that researchers who perform substantially similar work are being paid equitably.  The Faculty of Law will further commit to ensuring that starting pay and other compensation decisions are based on factors such as relevant prior experience, skills, performance and responsibility. The Faculty of Law will not rely on prior salary to justify a pay difference between researchers of the opposite sex, or different race or ethnicity, who are performing substantially similar work.

Individual Discrimination, Harassment, Exclusion, Devaluation & Tokenism

The Faculty of Law is committed to countering discrimination, exclusionary practices, devaluation of research, humiliation, and harassment within research programs and recognizes a no-tolerance position on these practices. Research staff shall not be subject to discrimination on the grounds of sex, ethnicity, age, disability, or sexual oriention.

The Faculty of Law will provide a course on discrimination, harassment, exclusionary practices, marginalization, devaluation of research, and stereotyping (“overly-sensitive-difficult-insubordinate-oppositional”) to research staff and disseminate these guidelines. Passive-aggressive exclusion is unacceptable. Examples of such behavior include failure to include a researcher in meetings or events, ignoring or overlooking a researcher in meetings and events, subtle insults, forgetting to cite or list a researcher in reports, devaluation of research, and failure to provide constructive feedback- instead providing unclear feedback or no feedback. Micro harassment, academic harassment, and cumulative acts of unconscious stereotyping, harassment, bullying, humiliation, abuse of power, or discrimination may create a hostile workplace and inflict damage. Harassment and discrimination may be based on inter-sectional grounds, such as race and gender. Researchers who experience discrimination or harassment risk psychological stress, disease, social mariginalization, reduced productivity, reduced trust in the leadership, isolation, reduced opportunity to advance in her career, and increased risk of withdrawal from academia.

Social Media: The Faculty of Law will seek to provide a safe work environment for women researchers by taking measures to ensure that women will not be harassed by employees or students on social media.

Definitions of Discrimination and Harassment

EU Directive 2006/54/EC of 5 July 2006 on the Implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation

Article 2- Definitions

Direct Discrimination- where one person is treated less favorably on grounds of sex than another is, has been or would be treated in a comparable situation

Indirect discrimination– Where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion, or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary

Harassment- Where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment

Sexual Harassment– Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment

Tokenism- The achievement of gender balance among researchers and research leadership is valued by Research Funds, such as the European Research Council. It is important that women researchers not be treated as tokens within research programs, in which they are recruited because of their gender in order to prove the non-discriminatory quality of the program. They are permitted to form part of a research program but not allowed to enjoy full participation due to coercive, authoritarian treatment, denial of advancement opportunities, exclusionary practices, psychological stress, alienation, devaluation, or demotion.  These practices carry a risk of additionally promoting gender stereotypes (the workaholic, the mother, etc.)  This results in demotivation, frustration, negative self-image, isolation, marginalization, and reduced aspirations and performance.

Complaint Mechanism: Persons who experience discrimination, harassment, or exclusion are to contact the Head of Department. Staff who witness discrimination or harassment have a duty to report the incident. Persons who file reports shall be protected from reprisals and given appropriate support. All Department Heads are to inform researchers about the availability of these procedures.

Termination, Dismissal, or Demotion within Research Programs

The Faculty of Law will conduct a gender assessment of termination of contract, dismissal, and demotions involving women within research programs. All such proceedings must meet procedural requirements of written notice, identification of substantive grounds for termination, representation by union and administration, and fair opportunity to respond.

Documenting a Demotion

The project director or manager must be able to produce specific documentation in order to support an involuntary demotion. Examples of specific documentation include a poor performance evaluation, disciplinary warning letters, or documentation of lack of work, reorganization, or change in sponsored program needs.

LIMU, the Faculty Administration, and the Union must assist and advise project directors and managers in documenting a case for demotion.

Notifying Researcher and Reviewing a Demotion

The LIMU, administration, and Union must review the supporting documentation for a demotion before a demotion is implemented.

If a researcher elects a voluntary demotion, the union or administration must be available to counsel the employee.

Providing Notification Memorandum to Researcher/Written Request by Researcher

If the demotion action is involuntary, the project director or manager must provide, after consultation with the office responsible for personnel matters, a written notification memorandum to the researcher who is being demoted. The written notification memorandum must explain the reason(s) for the demotion, the effective dates for the demotion, and whether the demotion is temporary or permanent.

For a voluntary demotion, the researcher must provide his or her project director or manager with a written request for the demotion.

Retaining the Notification Memorandum/Written Request

For involuntary demotions, a copy of the notification memorandum sent to the researcher must be retained in the personnel file. When a researcher requests a voluntary demotion, a copy of the written request must be retained in the personnel file.

Read On! The Alienation of Adjudication and the Weakening of Procedural Rule of Law within the Context of Asylum in Europe

I have just published an article with the Columbia Journal of European Law, Vol. 24 (3) 2018. The article argues that the extreme politicization of refugee law has prompted the alienation of adjudication by courts and administrative agencies as the relevant institutions to develop refugee law. The Article further underscores the trend towards diminished the procedural rule of law, including the right of appeal and the opportunity to receive legal aid. It suggests that this trend diminishes the European constitutional values of the rule of law, respect for human rights, justice, and solidarity. The Article considers the potential impact of the Proposal for a Common Procedure for International Protection presented by the European Commission in July 2016 and the subsequent response by the regional courts.

Part I provides an overview of the components of the procedural rule of law in the context of asylum. Part II presents a case study from Norway illustrating the Parliament’s immediate and fundamental violation of the principle of access to an independent decision-making body in the context of a hasty reform of immigration law in response to an influx of asylum seekers on the Russian border in 2015. Part III describes the weakening of access to legal aid for asylum seekers within Europe as well as in other regions. This correlates with the escalation of implementation of detention and deportation (including children) without the guarantee of effective remedy

The conclusion calls for reflection on whether European constitutional values should be deemed aspirational in light of the fact that the normative and institutional reforms undertaken in response to the recent arrival of refugees run contrary to the principles which once enabled the region to win the Peace Prize in 2012, “for over six decades [having] contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.”The Article advocates a recommitment to European constitutional values and suggests measures to strengthen respect for the rule of law, human rights, justice, and solidarity, underscoring the importance of engagement by courts at both regional and national levels and training of judges and adjudicators. The article is available here

 

New from the University of Peace

I am currently on sabbatical at the University for Peace in Costa Rica where I am researching the contribution of the Inter American Court of Human Rights to peace.  The University for Peace was established to provide higher education for peace with aim of promoting understanding, tolerance, and peaceful coexistence, stimulating cooperation among peoples and lessen obstacles and threats to world peace.  The Head of the Department of International Law is Mihir Kanade who just published a book with Routledge titled The Multilateral Trading System and Human Rights  He offers a new theory, raising the possibility of a goverance space framewrok to analyze the linkages and normative relationships bewteen the multilateral trade system and human rights.  He discusses the right to development approach in order to suggest the way forward towards sustainable development.  His perspective is innovative and quite timely during the situation of flux in the world system.  Another researcher in his department is Mariateresa Garrido, who researches the persecution of journalists.

The Inter American Court of Human Rights has just celebrated its 40th Anniversary, hence it is a good opportunity for reflection about the role of regional courts and the current challenges regarding human rights and democracy.  It hosted a seminar which included fascinating presentations in Spanish. Panel III includes some presentations on the other regional human rights courts in English, including an intriguing perspective by Judge Ganna Yudkivska on the impact of Security and Populism on Human Rights. She was complemented by Judge Raul Zaffroni of the Inter-American Court of Human Rights who bemoaned the weakness of states in the face of the enormous power of corporations and the the impact of excessive national debt, the emergence of political economic crimes, and the impact of corruption and impunity upon human rights.  Further issues included whether the Court should include representatives from every member state of the American Convention to increase interest among states, the role of the Court in protecting oppressed and vulnerable groups (including women, indigenous people, children, and migrants),  challenges regarding the increased role of non-state actors, the lack of adequate financing, and the lackluster political will to support human rights, democracy, and the rule of law across the world.  Perhaps the most moving panel was that composed of the victims who pursued their cases, patiently waiting years for justice, and appreciating the opportunity to have their stories be told.  Karen Atala is actually herself a judge from Chile, who lost custody of her children on account of choosing to live with her lesbian partner. Macarena Gelman is the daughter of Argentine parents who were forcibly disappeared; she herself being raised without knowing her true identity for 23 years.  Paticia Gualinga is a member of the Sarayakv indignous community which challenged the Ecuadoran state for granting oil exploration concessions on their territory.  Irma Monreal lost her daughter to femicide in Mexico and Ms. Thiessen lost her 14 year old brother to state terrorism in Guatemala.  Their testimonies confirm the continued importance of the regional human rights courts to respond to the ever-changing span of human rights violations.  Juana Ines Acosta explained the perspective of states, herself representing Colombia before the Court in various cases.  She indicated that states understand that they have human rights obligations and that there is a common aspiration to uncover the truth.  She explained that the reparations orders have had an effect of strengthening national institutions, and hence states do not “lose” human rights cases, because they also benefit from the decisions.

Costa Rica is an intriguing country of lush tropical plants, monkeys, tapirs, volcanoes, waterfalls, chronic traffic, and cordial people.  Although this country has no army, there are concerns about decreasing levels of civic trust due to the persistent problem of past corruption and impunity within the government. The rush of Nicaraguans escaping political violence has prompted cases of xenophobia.  Costa Ricans call themselves Ticas and Nicaraguans are Nicas, it it ends up sounding somewhat like a Dr. Seuss book, but confirms the importance of recognizing that xenophobia is not just a problem in the North.  The new President of Costa Rica Alvarado called for the society to uphold peace and not fall back upon hate. This year will prove fruitful in understanding the complexity of pursuing internal and external peace.

 

 

 

Report of the Special Rapporteur on extreme poverty and human rights on his mission to the United States of America

Philip Alston produced a report on poverty in America that articulates problematic governmental policies including: Undermining of democracy,  Shortcomings in basic social protection, Reliance on criminalization to conceal the underlying poverty problem,
Persistent discrimination and poverty, Confused and counterproductive drug policies, and Environmental pollution.  It sets forth concrete conclusions, underscoring “Punishing and imprisoning the poor is the distinctively American response to poverty in the twenty-first century. Workers who cannot pay their debts, those who cannot afford private probation services, minorities targeted for traffic infractions, the homeless, the mentally ill, fathers who cannot pay child support and many others are all locked up. Mass incarceration is used to make social problems temporarily invisible and to create the mirage of something having been done.”  The report is available here