Domestic Implementation of International Law

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

/ Osazenoriuwa Ebose / Leave a comment

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.jpg► Third 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.


Child trafficking in the fishing industry on Lake Volta

/ Juli King / Leave a comment

Challenging Heights is an anti-trafficking, anti-slavery, children’s rights NGO located in Winneba, Ghana, approximately an hour and a half outside of Accra, the capital. Inspired by the president and founder’s own experience being trafficked and enslaved as a child, the organization serves source communities, which are communities where children are trafficked from, in order to achieve its strategic goal of ending child trafficking in the fishing industry in Ghana in five years and ending child slavery in the fishing industry in Ghana in ten years.

 

During the Advocates Program, Challenging Heights provided an in-depth overview of every aspect of the organization. Each day, I was amazed by the breadth (and depth) of the organization’s programs. Not only does Challenging Heights rescue children from Lake Volta, rehabilitate them in a shelter, reintegrate them with their families and monitor them after reintegration, it also provides livelihood support to reintegrated children’s families as well as other vulnerable children’s families, conducts a youth empowerment program to tackle the root cause of poverty, campaigns against corporal punishment and child marriage, conducts alternative dispute resolution with slave masters to make sure children are given what they are owed for their labor, distributes 80,000 Tom’s shoes a year to schoolchildren, supports education with its newly independent Friends International Academy, conducts research projects on issues connected to its programs, and advocates for children’s rights locally, nationally and internationally.

 

The passion of the staff members of Challenging Heights layered each and every session throughout the Advocates Program. The communications officer, in the campaign against child marriage, hands out flyers that include her personal phone number so that people in danger of being married as a child or who know a child in danger of being married can call her for help. The rescue team risks their own lives to go out on the lake to rescue trafficked and enslaved children from slave masters. The shelter manager reminded us of the realities and challenges of shelter life, but when asked about her greatest success said, “Every single day when I see children laughing it’s a success. Even when they are crying, it’s a success because they can express their emotions”.

 

Despite the dedication and passion of Challenging Heights and its staff, slave masters and traffickers continue to traffic and enslave children without legal repercussion. In 2016, there were no convictions under Ghana’s anti-trafficking law, due to insufficient resources devoted to collecting evidence which hinders investigations according to the State Department.  Challenging Heights staff was certain Ghana would be moved to the Tier 3 watch list for trafficking in persons this year due to the government’s lack of action. However, the State Department granted Ghana a waiver because of a written plan that would have an impact if implemented. The Trafficking in Persons watch list levels are based on minimum standards for the elimination of trafficking in persons the US State Department created.

 

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CORRUPTION CRISIS OVERTAKES GUATEMALA

/ Naomi Roht-Arriaza / Leave a comment

A new president takes office with no government experience and a background as a TV personality. He comes to the job after squaring off against a woman candidate, who he accuses of corruption. He promises that things will be different, but he can’t get much done. He’s forced to rely on a small group of retired military officers, some of them with shady pasts. Worse, information starts emerging about his party’s illegal campaign finance schemes, and an independent investigation turns up evidence of wrongdoing. To avoid further scrutiny, the president tries to get rid of the investigator, but runs into political resistance. A constitutional crisis ensues.

 

Sound familiar? Welcome to Guatemala.

 

The president is Jimmy Morales, former comedian, who on August 27 declared persona non grata the head of the U.N. Commission Against Impunity in Guatemala, Colombian jurist Ivan Velásquez. The Commission, known by its Spanish initials as CICIG, was created in 2006 through an innovative agreement between the United Nations and the Guatemalan government in order to deal with clandestine groups that had infiltrated the state and were attacking human rights defenders and others. In 2014, the U.N. appointed Velásquez to the post, and he helped shift CICIG’s priorities to the endemic, large-scale corruption that has sapped the country’s resources and allowed for strategic alliances among government and military officials, economic elites and organized crime. CICIG cannot prosecute, but acts as a civil party in cases brought by the local Prosecutors’ office.

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Georgia’s very own Öcalan? Mukhtarli’s Cross border-abduction in light of Georgia’s obligations under IHRL

/ Natia Kalandarishvili-Mueller / 1 Comment

This post concerns the case of Afgan Mukhtarli, an Azerbaijani investigative journalist (reporting on the possible corruption of Azerbaijani Authorities) who was allegedly abducted from Tbilisi, Georgia. He is now facing trial in Azerbaijan. Notably, Georgia’s International Human Rights Law (IHRL) obligations vis-à-vis Mr. Mukhtarli are brought to the forefront.

The Facts

On 29 May 2017, Afgan Mukhtarli, who had been in exile in Georgia with his wife since 2015, supposedly vanished near his home in Tbilisi. As stated by Mukhtarli’s lawyer, Mr. Sadigov, Mukhtarli was snatched by men who are believed to be agents of the Georgian Security Forces. They were dressed in plain clothing. According to Mukhtarli, his captors changed vehicles at least twice (see here and here). In the second vehicle, the kidnappers spoke Azeri and eventually brought Mukhtarli to an Azerbaijani border checkpoint in the Balaken district (border shared by Georgia and Azerbaijan), at about 11 p.m. on 29 May . He is now in detention in Baku and, according to the HRW, faces bogus, politically motivated charges of illegal border crossing and smuggling. On 31 May, additional charges against Mukhtarli were pressed by the Azerbaijani authorities, blaming him of violent resistance against law enforcement officials. Baku’s Sabail district court sent him into pre-trial detention for three months. According to Amnesty International, Mr. Mukhtarli is at risk of torture.

On 30 May 2017, a statement by the Public Defender of Georgia called on Georgia’s Law Enforcement agencies to urgently and effectively respond to Mukhtarli’s case. On 31 May 2017, the Ministry of Internal Affairs of Georgia stated an investigation of illegal restriction of freedom had been launched.

Unwilling or unable to protect human rights?

The way this case comes across, is that the Georgian Government failed either willingly or unwillingly to protect Mr. Mukhtarli on its soil under IHRL. If Georgia failed unwillingly to protect Mr. Mukhtarli, then this conveys Georgia’s border forces are not fully able to discharge their duties, and anyone can either freely enter Georgian territory or leave unchecked. This would also suggest, the Georgian government and its organs are not in full control of Georgian territory’s ins and outs. On 1 June 2017, Georgia denied to be the part of the kidnapping. A follow-up question, however, to such a denial is whose state agents were then involved in the kidnapping and transport of the journalist to the Georgian-Azeri border? On the other hand, if Georgia failed willingly, this would signify, Georgia’s security forces were all along aware of the operation taking place and were in fact even part of what seems a carefully orchestrated move. Georgia would subsequently be in breach of the ECHR, CAT and the ICCPR to name just a few instruments.

What does IHRL have to say?

To begin with, the main aim of IHRL is to protect individuals from their rights being violated. It was “devised to protect the individual against the arbitrary exercise of power by the authorities of the territorial state.” (F. Coomans and M. T. Kaminga, ‘Comparative Introductory Comments on the Extraterritorial Application of Human Rights Treaties’, in F. Coomans and M. T. Kamminga (eds), Extraterritorial Application of Human Rights Treatise (Antwerp- Oxford: Intersentia, 2004), 1-7, at 1). When states ratify IHRL instruments, they pledge upholding the rights enshrined by the latter. IHRL is applicable to “everyone everywhere” (M. Sassòli et al, How Does Law Protect in War? Vol. I (ICRC, 2006) at 341), including situations of state extraterritorial activities (see K. Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff Publishers 2013)). In other words, a state is under the obligation to respect and protect human rights as guaranteed by applicable treaties wherever it exercises jurisdiction, i.e. control.

Consequently, IHRL binds states with both negative and positive obligations, the former obliging a state to respect human rights, that is not to commit human rights violations; the latter requiring a state to ensure or secure the human rights of persons within its jurisdiction and prevent human rights violations by foreign states or private individuals (M. Milanovic, ‘From Compromise to Principle: Clarifying the concept of State Jurisdiction in Human Rights Treatise’, 8 Human Rights Law Review (2008), 411-448, at 441-442).

To be even more precise, the negative and positive obligations can be then divided into three levels of obligations (W. Kälin and J. Kunzli, The Law of International Human Rights Protection (Oxford University Press, 2010) at 96-97):

  1. Obligation to respect: states do not interfere in the enjoyment of persons’ rights, i.e. negative obligations; (ibid., 96)
  2. Obligation to protect: states have positive human rights law obligations to protect the interests of those concerned and protect their human rights against threats emanating from breaches by third parties, natural or human made risks. In practice, this involves ensuring the concerned human rights guarantees, not only between private actors, but also “vis-à-vis state agents acting ultra vires or agents of third states.” (ibid.)
  3. Obligations to fulfil, a third level, show that states are required to fulfil human rights, i.e. to ensure that they are realised in practice as comprehensively as possible, in the form of the adoption of legislative or administrative measures to establish the legal, institutional and procedural basis for the full realisation of the concerned right (ibid., 97).

The particularity of the obligation to protect is that it arises if the state is aware, or could have been aware; if sufficient caution had been exercised of the violation or threat thereof; and if it has practical and legal means to prevent it. The obligation to protect may either be immediate and operational, encompassing police intervention; amount to precautionary measures, e.g. by a court; or take the form of legislative enactments, such as statutory prohibitions and penalties (ibid., 96). 

Conclusion

In this case, Georgia appears to have failed to protect Mr. Mukhtarli, in the segments of prevention and protection. It is improbable the border guards did not notice the situation Mr. Mukhtarli could have been in. The checkpoint guards – as agents of the state of Georgia – were under the obligation to impede the crossing of Mr. Mukhtarli and those accompanying him, to say the very least. This would have averted his forceful return to Baku.

U.S. Government Sued Over Illegally Turning Away Asylum Seekers

/ Lindsay M. Harris / 1 Comment

Today several groups filed suit against the U.S. government’s Department of Homeland Security and the Customs and Border Protection (CBP) agency for turning away asylum seekers, contrary to domestic and international law.

Along the U.S.-Mexico border, asylum seekers arrived from all over the world to present themselves to CBP to ask for protection. The right to seek asylum is enshrined in Article 33 of the United Nations Convention on the Status of Refugees, which came into being in 1951 and was expanded by the 1967 Protocol. The United States signed the Protocol in 1968, enacting domestic law to implement the international agreement in 1980.  The U.S. is thus bound by the terms of the Protocol and the Convention itself, including, critically, the principle of non-refoulement — non-return of individuals to a place where they would  face persecution on account of one of the five protected grounds.

In recent years, however, CBP has been routinely turning away vulnerable asylum seekers, forcing them to return to Mexico without allowing them to pursue their right to claim asylum.  This illegal practice has worsened as CBP officers became emboldened following the election and inauguration of Donald Trump as U.S. President. Indeed, in January 2017, several groups filed a complaint with the Department of Homeland Security’s Offices of Civil Rights and Civil Liberties and Inspector General, alleging systemic abuses at the border. In March, the U.S. government failed to even show up to defend their practices before the Inter-American Commission for Human Rights, a session which included testimony from multiple groups on the illegal turning away of asylum seekers at the border.

To challenge the unlawful practice of turning away asylum seekers, today the American Immigration Council, the Center for Constitutional Rights, and Latham & Watkins LLP filed suit in federal court in California’s Central District. The plaintiffs are Al Otro Lado, a “national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico” and six of their clients. The lawsuit alleges that DHS and CBP have violated asylum seeker’s rights to seek protection, along with their due process rights under the Fifth Amendment to the U.S. Constitution, and violations of international law.

The plaintiffs’ stories are all too familiar to asylum lawyers based in the U.S. Personally, I Co-Direct the Immigration and Human Rights Clinic at the University of the District of Columbia’s David A. Clarke School of Law. Our current clients include several mothers fleeing violence in Central America who eventually made it into the U.S. after being illegally turned away. We work with survivors of extreme domestic violence and persecution at the hands of transnational criminal organizations, known as “maras,” were turned away at the border by officials with statements such as “There’s no asylum for people from Honduras…” or “You can’t get asylum because you’re scared of your husband.” These statements are patently false, of course, and the precedential Board of Immigration Appeals decision, Matter of A-R-C-G-, made clear that individuals fleeing domestic abuse can meet the asylum definition.

As Karolina Walters of the American Immigration Council summarizes from the Complaint today, on their blog, “[o]ther examples of the tactics used by CBP officers against asylum seekers, include:

  • Misrepresenting that visas are required to cross at a POE or that asylum seekers must obtain a “ticket” from a Mexican government agency before they will be allowed to enter the United States to seek asylum;
  • Yelling profanities at an asylum-seeking mother and her 5-year-old son, throwing her to the ground, and forcefully pressing her cheek into the pavement; and
  • Coercing asylum seekers into recanting their fear on video and into withdrawing their applications for admission to the United States.”

The Washington Post quotes legal fellow, Katie Shepherd, also with the American Immigration Council  “‘[CBP officers are] getting very creative; we keep hearing new ways they’re turning people away. . . ‘If a single asylum seeker is denied in a day, that’s one too many.’”

It is, of course, a sad state of affairs that a lawsuit to protect the rights of asylum seekers is necessary. We can only hope that the Court will hold the government to account and the government will honor their legal obligations to protect refugees.

 

International Law And National Security: A View From Abroad On Current Trends In Targeting, Detention, And Trials

/ Beth Van Schaack / Leave a comment

On May 18, from 6-7:30 pm, in Cardozo Law School’s Moot Court Room, the International Committee of the Red Cross and Cardozo Law School will co-host an essential program for anyone interested in the application of international law to national security.

This event will feature some of the most active and respected experts in the field from abroad to discuss their view of international law and national security in the United States and around the globe in light of recent political upheavals. The panel will be moderated by yours truly (Prof. Beth Van Schaack of Stanford Law School).

For further information, please see the flyer below. There will be a reception after the event.

To register: Eventbriteppflyernorsvp.

Corporate accountability: Dutch court convicts former “Timber baron” of war crimes in Liberia

/ Dieneke de Vos / Leave a comment

On 21 April 2017, the Dutch Court of Appeal in ‘s-Hertogenbosch issued a decision holding Mr Guus Kouwenhoven, a Dutch national, responsible as an accessory to war crimes committed in Liberia and parts of Guinea between August 2000 and December 2002. The decision is one of few to address corporate accountability for war crimes. As the president of the Oriental Timber Company (OTC) and director of the Royal Timber Company (RTC), Mr Kouwenhoven supplied weapons, and material, personnel and other resources to former Liberian President Charles Taylor and his armed forces, which were used to fuel their fight against a rebel group, the Liberians United for Reconciliation and Democracy (LURD). The court held Mr Kouwenhoven liable not only for directly violating a UN arms embargo in place at the time, but equally as an aider and abettor to war crimes that were committed using the resources he provided, including rape, pillage, murder, and inhumane treatment. Here are a few highlights.

The case against Guus Kouwenhoven

The crimes for which Mr Kouwenhoven stood trial were alleged to have been committed during the second Liberian Civil War between 2000 and 2002, when Former Liberian President Charles Taylor was fighting a brutal war against LURD. The specific charges related to crimes committed in Voinjama and Kolahun in Lofa County in Liberia, as well as in Guéckédou, across the border in Guinea. Although the charges against Mr Kouwenhoven related to his having been “complicit in repeated violations of the laws and customs of war, to wit murder or rape”, the allegations covered a range of different crimes. The court noted that unnamed (co-)perpetrators, members of Charles Taylor’s armed forces, indiscriminately fired at civilians and military targets, burned houses with civilians trapped inside, cut off people’s heads, smashed babies against walls to kill them, forced civilians to undress before shooting them, and raped women and children.

As director and president of two of the largest timber companies in Liberia, Mr Kouwenhoven’s business interests were closely tied to former President Charles Taylor’s political, financial, and personal interests. Mr Kouwenhoven maintained frequent contact with Charles Taylor, who had financial interests in his two companies and frequently received payments and other resources. In exchange, Mr Kouwenhoven gained access to large swathes of territory for the exploitation of timber and was given de facto control over the Buchanan port.

The court noted that Mr Kouwenhoven used his companies to import, store, and distribute weapons in Liberia, in clear violation of the UN arms embargo. He provided trucks for the transportation of armed forces, weapons and ammunition, and facilitated the import of weapons and ammunition. He also actively encouraged his employees to support Charles Taylor, such as by unloading weapons from his ships in Buchanan and transporting them to various places in Liberia or participating actively in the fighting, and threatened those who refused with dismissal. He also allowed the armed forces access to an RTC camp, effectively used as a meeting place and a mechanism for storage and resupply of weapons to the frontline.

Corporate accountability for international crimes

Importantly, Mr Kouwenhoven is not convicted of directly perpetrating international crimes himself. Rather, the court held that he made an “active and conscious” contribution to the commission of serious violations of international humanitarian law, by the provision of material, personnel, and other resources through his businesses in Liberia. Although he had been charged in the alternative as (co-)perpetrator and as an accessory to the crime, he was ultimately convicted as an aider or abettor.

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Victims’ interminable wait for justice in Sri Lanka

/ Priya Gopalan / 1 Comment

On 23 March 2017, the Human Rights Council (HRC) passed Resolution 34/1 on promoting reconciliation, accountability and human rights in Sri Lanka – the latest in a series of resolutions addressing the aftermath of the ethnic conflict between the Government of Sri Lanka (GoSL) and the Liberation Tigers of Tamil Eelam (LTTE). It follows Resolution 30/1 of October 2015 that provides a roadmap for judicial and non-judicial measures to promote post-conflict accountability and reconciliation in Sri Lanka. The first to be co-sponsored by Sri Lanka, Resolution 30/1 was heralded as an opportunity for Sri Lanka to reset its human rights record and embark on a post-conflict journey towards justice, reconciliation and non-recurrence.

Resolution 30/1 sought to implement the recommendations set out in the 2015 report of the UN Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL), which documented the “horrific level of violations and abuses” in the Sri Lankan civil war. (See my previous blogs “The Long Journey to Justice for Sri Lanka’s Victims” Part I and Part II for a discussion on the OISL report and Resolution 30/1 respectively). Resolution 34/1 rolls over Resolution 30/1 due to the lack of progress in fulfilling the latter.

Where do we stand, seventeen months after Resolution 30/1 and almost eight years after the official end to the conflict? In March 2017, reporting back to the HRC on the implementation of Resolution 30/1, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein noted that the GoSL has been “worryingly slow” in fulfilling its transitional justice commitments and that “the structures set up and measures taken during the period under review were inadequate to ensure real progress.” For instance, in August 2016, Parliament adopted legislation for the establishment of an Office of Missing Persons to investigate the tens of thousands of missing persons – a key transitional justice measure given that Sri Lanka records one of the highest rates of disappearances in the world. However, the legislation is yet to be operationalised.

Another key recommendation – establishing a “Sri Lankan judicial mechanism” with international actors – has been ignored despite being a cornerstone of Resolution 30/1 in securing accountability and justice for victims. International presence in an accountability process was intended to mitigate deep-seated mistrust in purely domestic mechanisms by providing impartiality and credibility. As noted by the UN High Commissioner for Human Rights in 2015, there has been “a total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.” Despite the GoSL’s commitments, President Sirisena, in January 2016, excluded any foreign involvement in an accountability mechanism – a position that has been maintained by other senior government officials including the Prime Minister.

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Write On! AsianSIL Interest Group on International Law in Domestic Courts

/ Machiko Kanetake / 1 Comment

asiansil-ig-ildc-logoThe Asian Society of International Law’s Interest Group on International Law in Domestic Courts has issued a call for papers for a workshop to be held on 24 August 2017 at Yonsei University, Seoul, South Korea.

The workshop will be held on the occasion of the Sixth Biennial Conference of the Asian Society of International Law (which takes place on 25-26 August). The Interest Group will organize a half-day workshop on the ways Asian courts invoke, interpret and apply international law. For decades, judiciaries across Asia have turned to international treaties, and customary international law, to resolve disputes between private actors on the one hand, and between individuals and the states on the other. Despite this widespread practice, insufficient attention has been paid to the Asian countries’ reception of international law. We hope to use this opportunity to spur scholarly reflection on state practice from any Asian jurisdiction.

Participants may wish to address the following topics:
► interpretive methods used by courts to enforce obligations under international human rights treaties;
► why courts enforce (or refuse) arbitral awards under the New York Convention;
► direct and indirect applications of the Convention on Contracts for the International Sale of Goods;
► the rights of prisoners of war under the Geneva and Hague Conventions, or other sources of international humanitarian law;
► courts’ citation to reports, recommendations and comments issued by treaty-monitoring bodies and international organizations; and
► invocation of unincorporated treaties.
This is by no means an exhaustive list; interested participants are encouraged to reflect on these, and other, topics that would fall within this general category.

Interested researchers and practitioners should send a 500-word abstract and a short bio to the convenors of the IG-ILDC: m.kanetake@uu.nl (Machiko Kanetake) and tjw71@case.edu (Tim Webster). The deadline is 23 April 2017.

Selected participants will be informed by 15 May 2017. Preference will be given to current members of the Asian Society of International Law. Each participant must submit a short paper (5-10 pages) by 15 August 2017 for distribution to the other participants. Panelists will be expected to cover their own travel and lodging costs.

Read On! ‘The Human Rights of Migrant Women in International and European Law’

/ Fulvia Staiano / 1 Comment

copertinaI am delighted to post on IntLawGrrls for the first time and to present my new monograph The Human Rights of Migrant Women in International and European Law. This book starts from the consideration that European and domestic migration law indirectly discriminates against third-country national migrant women, and aims to answer the question of whether human and fundamental rights law can remedy this gender bias.

The book carries out an analysis of significant instances of indirect discrimination against migrant women within EU immigration law, as well as in the domestic orders of Italy, Spain and the United Kingdom. It then critically reviews human and fundamental rights jurisprudence at supranational and domestic level, with a specific focus on the case law of the European Court of Human Rights, the Court of Justice of the European Union, as well as the domestic jurisdictions of Italy, Spain and the United Kingdom. By doing so, it identifies effective judicial interpretations to ensure migrant women’s enjoyment of their rights and entitlements in conditions of equality and non-discrimination.

The book is divided in two parts. The first focuses on family reunification and care, analysing the gendered effects of income requirements in European family reunification regimes as well as migrant women’s access to residence rights on the grounds of childcare. A second part of the book concerns the employment realm, with a focus on discrimination against migrant women workers and labour exploitation in the domestic work sector.

Ultimately, this book argues that a normative and judicial awareness of migrant women’s most common difficulties in their host countries is crucial to ensure the full enjoyment of their right to equality and non-discrimination. For this purpose, it is equally important for law to focus not only on moments of crisis and victimisation, but also on prevention through an effective protection of migrant women’s socio-economic rights.