International Development

World Bank Inspection Panel applies gender-sensitive analysis in report on Nachtigal Power Project in Cameroon

/ Tequila J. Brooks / Leave a comment

My recent commentary in the International Labor Rights Case Law Journal focuses on the September 2022 report issued by the World Bank Inspection Panel in response to complaints made by local community groups about harm caused by the Nachtigal Power Project and Sanaga River Technical Assistance Project. The commentary is accompanied by text excerpted for the Inspection Panel’s report.

The case arose out of the damming of the Sanaga River to create a hydroelectric power plant. The Inspection Panel’s report stands out because of the Panel’s holistic review of the harms caused by the Nachtigal Power Project, its application of a gender sensitive analysis to the facts outlined in the complaint and uncovered during the Panel’s on-site visit, and the Panel’s validation of the harms alleged by the community members. On November 4, 2022, the parties agreed to dispute resolution under the auspices of the World Bank accountability mechanism. The collaborative dispute resolution process commenced in December 2022. If the parties are unable to come to an acceptable resolution, the case will proceed to the formal investigatory process.

The report in the Nachtigal Power Project case is one of a new generation of reports issued by the World Bank Inspection Panel after the World Bank reformed its accountability mechanism in 2020. The reforms strengthened rules governing the social effects of World Bank-funded projects. In December 2022, the World Bank Accountability Mechanism Secretary issued updated operating procedures for the accountability mechanism.

In its report on the Nachtigal Power Project, the Inspection Panel drew a complex picture of intertwining environmental, social, and workplace harms affecting the local community. Short- and long-term impacts of damming the river affected fish populations, which in turn affecting the ability of fisherfolk to earn a living, which in turn affected the resources available to families to keep children and young people in school and university, which in turn had a deleterious effect on the local community in the form of increased crime, domestic violence, and prostitution.

By applying a gender sensitive analysis to the facts detailed in the complaint and uncovered during its on-site review, the Inspection Panel was able to shed light on how the project had affected women – and how women were excluded from livelihood restoration and other plans adopted to mitigate the harms of the project. Women in the community tended to earn their livelihoods from informal tasks like fish mongering and operating restaurants that catered to fishermen and sand miners. The informality of their means of making a living served as a barrier to women’s participation in livelihood programs. A gendered focus highlighting informal businesses is also beneficial to men who operate informal businesses in agriculture and sand mining. The Inspection Panel also noted that sexual harassment of women seeking work at the power plant was another barrier to the restoration of livelihoods lost as a result of the Nachtigal Power Project.

Importantly, the Inspection Panel affirmed the credibility of the complainants and community members – and uncovered additional facts showing that project mitigation plans had not been effective in restoring livelihoods and mitigating against the harms caused by the hydropower project.

As a financier of the project with the ability to withdraw or stop funding, the World Bank has a considerable amount of leverage at its disposal to persuade project management to effectively address issues raised by complainants. It remains to be seen whether community members, project representatives, financiers, and policy makers at the national and international levels will be able to develop solutions that match the complex and intertwining harms caused by the project. Regardless of the outcome, the report in the Nachtigal Power Project case is an example of how international institutions can effectively apply a gender sensitive analysis to reveal and hopefully address adverse impacts of globalization and development not only on women, but on men as well.

Please reach out to me privately to request a copy of my commentary.

“Conflicting areas”: Brazilian energy planning at odds with the protection of Indigenous Peoples and the Amazon Rainforest

/ fbragato / Leave a comment

Fernanda Frizzo Bragato*

Lara Santos Zangerolame Taroco*

Amazon is the largest tropical rainforest globally, and Brazil is home of 60% of its full extension. Although the Amazon rainforest is an essential global repository of carbon, mitigating climate change,[i] it also awakens deep economic interests, given its potential in untapped natural resources and rich biodiversity. 

The advancement of deforestation in the region backs to the 1960s, when the military took power and adopted economic plans to develop and integrate the Amazon into the rest of the country.[ii] In that period, the government boosted the opening of roads, the discovery of minerals, and the beginning of agricultural colonization in region.[iii] For instance, the herd grew from just 2 million in 1970 to around 80 million heads in 2010. Until 1975, deforestation affected less than 1% of the forest, reaching almost 19% in 2013. Social conflicts caused by violent land tenure disputes also intensified in the late 20th century due to the increasing availability of lands through recently opened roads and the intensification of land grabbing. [iv]   

In the civil-military dictatorship, studies discovered “the existence of an immense hydraulic potential in the Amazon region, mainly on the Tocantins and Xingu rivers.” [v]  The government then initiated the construction of hydroelectric power plants in the region, marked by environmental impacts and violation of the indigenous rights.

Since then, Brazil has been largely relying on hydropower as the main source of electricity generation.[vi] According to the National Energy Plan – 2050 (thereinafter PNE 2050), [vii] which came out in 2020, hydroelectricity supplied almost 2/3 of the electricity demand in October 2019.[viii]

In 1988, the new Constitution restricted the exploitation of hydroelectric resources in Indigenous lands, and environmental legislation established protected biodiversity zones. Convention no. 169 of the ILO, ratified by Brazil in 2002,[ix] reinforced this restriction by providing the FPIC with indigenous peoples before undertaking, or authorizing, any resources’ exploitation within their lands.

Brazil also ratified, in 1998, the Convention on Biological Diversity,[x] and created the National System of Nature Conservation Units in 2000, which established several Conservation Units. In 2004, Brazil reserved more than 500 thousand square kilometers for new Conservation Units. This effort resulted in an expressive reduction in deforestation, which fell from almost 28 thousand square kilometers in 2004 to around 5.8 thousand square kilometers in 2013.[xi]

Nonetheless, the electricity plans continued to prescribe hydroelectricity as the primary energy source, including its exploitation in protected areas, such as Amazonian Indigenous lands and conservation units.

The 2030 National Energy Plan (thereinafter PNE 2030), published in 2007,[xii] identified hydroelectric energy as the main source of energy generation, contributing for 79% of total generation, and 70% of the Brazilian energy potential in the Amazon and Tocantins/Araguaia basins. The document mentioned the existence of “issues” to be solved by the National Congress, citing as an example the possibility of “exploitation of energy potential in Indigenous lands”. [xiii]

In addition, the Decennial Energy Expansion Plan 2006-2015 (thereinafter PDEE 2006-2015)[xiv] pointed out that 41% of the Amazon Biome’s total area comprises “conflicting areas.” This expression refers to legally protected areas that make it impossible or difficult to expand energy production. Of the 41% mentioned, 16% are Conservation Units, and 25% are Indigenous lands. Moreover, neither the PDEE 2006-2015 nor the PNE 2030 mentioned Indigenous demands for more land demarcations in the Amazon. The non-demarcation of Indigenous lands leads the main claims and conflicts involving Indigenous Peoples in Brazil.[xv]

The Growth Acceleration Program (thereinafter PAC),[xvi] formulated by the Federal Government in 2007, provided energy infrastructure as one of its four pillars. The PAC maintained the creation of the Belo Monte HPP, and planned to build another 31 plants in the country’s northern region. Recently, the PNE 2050 also predicted the high participation of hydroelectricity as the country’s primary energy source.

Unlike the previous plans, the PNE 2050 mentions the “socio-environmental complexity for hydroelectric expansion,” [xvii] given that the hydroelectric potential is located predominantly in “areas of high socio-environmental sensitivity, especially in the Amazon region, which has half of its extension covered by legally protected areas.”[xviii]

According to the PNE 2050, 77% of the identified hydroelectric potential overlap with legally protected areas in the national territory, such as Indigenous lands or conservation units. Only 23% of the potential capacity of hydroelectric plants does not overlap with protected areas, which makes it difficult to reconcile “the purposes of a Conservation Unit with the expansion of energy supply.” [xix]  However, the PNE 2050 does not propose any alternative for the overlaps.

Considering the 204 conservation units in the Brazilian Amazon, which comprises around 104 thousand hectares,[xx] the energetic Brazilian plans look inconsistent with the urgent need to curb deforestation.  Likewise, deforestation within Amazonian conservation units jumped from 441km2 in 2018 to 953km2 in 2019, increasing more than 110%.[xxi]  In 2019, the Amazon was the Brazilian biome most affected by deforestation, amounting to 63.2% of the country’s deforested area (totaling 770,148 hectares). [xxii] The total deforested area increases every year. It is estimated that  20% of the rainforest has already been deforested, close to the tipping point, rated between 20-25%,[xxiii] in which ecosystemic changes would cause an irreversible cascade effect.

Also, the impacts of the electricity sector in Indigenous lands are severe and irreversible. Among them, the following stand out: the relocation of communities to other regions, often accompanied by disruptions in their livelihood; the flooding of large land parcels, including sacred areas, such as traditional burial sites, and rich biodiversity; the invasion of traditional lands; the decrease of hunting, fishing and the reduction of arable areas; and the proliferation of insect populations, including arthropods and mollusks, leading to increased incidences of malaria and other infectious diseases.[xxiv]

Considering the Brazilian history and the horizon of 2050, the incompatibility between what is defined by the government’s planning and protected areas – called inappropriately “conflicting areas”-  seems extremely clear. Therefore, state planning for the energy sector predicts conflict situations that tend to escalate in the following years, leading to more human rights violations against Brazilian indigenous peoples and increasing deforestation of the Amazon rainforest.

* Professor at UNISINOS Law Graduate Program. CNPQ Researcher. Coordinator of UNISINOS Human Rights Center. E-mail: fbragato@unisinos.br.

* Law PhD Candidate at UNISINOS. Law Master Degree from Vitoria Law School  – FDV. Member of Unisinos Human Rights Center. E-mail: larasantosz@hotmail.com.

[i] HUMAN RIGHTS WATCH. Rainforest Mafias. How violence and impunity fuel deforestation in Brazil’s Amazon. 2019. Available at: https://www.hrw.org/sites/default/files/report_pdf/brazil0919_web.pdf . Access on: Nov 09, 2021.

[ii] PRATES, Rodolfo Coelho, Carlos José Caetano BACHA. Os processos de desenvolvimento e desmatamento da Amazônia. Economia e Sociedade, dez. 2011, v. 20, n. 3 (43), pp. 601-636. Available at: < https://www.scielo.br/pdf/ecos/v20n3/a06v20n3.pdf. Access on Nov 9, 2021.

[iii] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[iv] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[v] MINISTÉRIO DE MINAS E ENERGIA. Centro da memória da eletricidade no Brasil. Disponível em: http://memoriadaeletricidade.com.br . Access on Nov 9, 2021.

[vi] BRASIL. Presidência da República. II Plano Nacional de Desenvolvimento (1975-1979). Brasília, 1974. Available at: http://www.planalto.gov.br/ccivil_03/leis/1970-1979/anexo/ANL6151-74.PDF . Access on Nov 9, 2021, p.65.

[vii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.75.

[viii] U.S. Energy Information Administration. Hydropower made up 66% of Brazil’s electricity generation in 2020. Sep 7, 2021. Avaliable at: https://www.eia.gov/todayinenergy/detail.php?id=49436. Access on Nov 9, 2021.

[ix] BRASIL. Decreto n. 10.088/2019. Anexo LXXII. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D10088.htm#anexo72. Access on Nov 9, 2021.

[x] BRASIL. Decreto n.2.519/1998. Available at: http://www.planalto.gov.br/ccivil_03/decreto/d2519.htm. Access on Nov 9, 2021.

[xi] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021

[xii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiv] MINISTÉRIO DE MINAS E ENERGIA. Plano Decenal de Expansão Elétrica: 2006-2015. Brasília: EPE, 2006. Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Decenal-de-Expansao-de-Energia-2015. Access on Nov 9, 2021.

[xv] CAVALCANTE, Thiago Leandro Vieira. “Terra Indígena”: aspectos históricos da construção e aplicação de um conceito jurídico. Revista História. Franca, v.35, 2016. Available at:http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0101-90742016000100501&lng=en&nrm=is. Access on Nov 9, 2021.

[xvi] MINISTÉRIO DO PLANEJAMENTO. Sobre o PAC. Available at:http://www.pac.gov.br/sobre-o-pac  Access on Nov 9, 2021.

[xvii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xviii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xix] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xx] ISA. Instituto Socioambiental. Placar de Unidades de Conservação. Pará – Belém do Pará. 2020. Available at: https://widgets.socioambiental.org/placar/ucs/674  Access on Nov 9, 2021.

[xxi]  NOTÍCIAS MPF. Ação do MPF requer atuação imediata do governo federal para combater desmatamento na Amazônia. 2020 Available at: http://www.mpf.mp.br/am/sala-de-imprensa/noticias-am/acao-do-mpf-requer-atuacao-imediata-do-governo-federal-para-combater-desmatamento-na-amazonia . Access on Nov 9, 2021.

[xxii] MAPBIOMAS. Relatório Anual do Desmatamento no Brasil – 2019. Available at: https://mapbiomas.org/relatorio-anual-do-desmatamento-do-brasil-aponta-perda-de-12-milhao-de-hectares-de-vegetacao-nativa-no-pais-em-2019 Access on Nov 9, 2021.

[xxiii] LOVEJOY, Thomas and Carlos NOBRE. AMAZON TIPPING POINT. Science Advances, Feb. 2018, Vol. 4, No. 2. Available at: https://advances.sciencemag.org/content/4/2/eaat2340  Access on Nov 9, 2021.

[xxiv] TADEI, W. P., 1994. Proliferação de mosquitos na Hidrelétrica de Tucuruí, Pará. In: A Questão Energética na Amazônia. Avaliação e Perspectivas Sócio Ambientais. Anais do Seminário Internacional, pp. 2-13, Belém: Núcleo de Altos Estudos na Amazônia, Universidade Federal do Pará/Museu Paraense Emílio Goeldi; ARRUDA, M. E., 1985. Presença de plasmódio brasilianum em macacos capturados na área de enchimento do reservatório da usina hidroelétrica de Tucuruí, Pará. Memórias do Instituto Oswaldo Cruz, 80:367-369; BULCÃO, J. A. P., 1994. Proposta de um Modelo para Avaliação do Impacto dos Empreendimentos Hidroelétricos sobre as Doenças Transmitidas por Vetores com Especial Referência à Malária. Dissertação de Mestrado, Rio de Janeiro: Instituto Oswaldo Cruz, Fundação Oswaldo Cruz.; COUTO, R. C. S., 1996. Hidrelétricas e Saúde na Amazônia: Um Estudo sobre a Tendência da Malária na Área do lago da Hidrelétrica de Tucuruí, Pará. Tese de Doutorado, Rio de Janeiro: Escola Nacional de Saúde Pública, Fundação Instituto Oswaldo Cruz.

Guatemala and Covid-19: Justice Postponed

/ Lauren McIntosh / Leave a comment
Photo courtesy of Alexey Hulsov

This blog piece was co-authored by Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice of the New York City Bar, and was originally posted on the website of the International Legal Assistance Consortium (ILAC).

Guatemala is just one of the slew of countries like Brazil, Nicaragua and Hungary that was already experiencing rule of law backsliding long before Covid-19. However, as highlighted in ILAC’s most recent rule of law assessment report, there was a window of opportunity to return to combating corruption and strengthening the rule of law in Guatemala with the ushering in of a new executive in January 2020. Guatemala’s new president, Alejandro Giammattei, even took early steps to show he was serious about fighting corruption by signing an inter-institutional cooperation agreement and establishing a presidential commission against corruption. Even though there were initial signs of hope, there are already unfortunately several reasons to fear that the rule of law will continue to backslide and that the chance for justice will be postponed during the pandemic.

Further rule of law backsliding during Covid-19 is already happening

We have already seen Guatemala’s Congress use a Covid-19 discussion to pass a bill that amends the NGO law. The amendment restricts development NGOs and has been heavily criticized since it was first introduced in March 2017 as being inconsistent with the right of association and freedom of expression. Yet, on February 11, it was “surreptitiously approved after being introduced by three congressmen during a discussion of emergency measures to confront the coronavirus, thus deceiving all transparency and debate in the parliamentary process”.[1] Guatemala’s Constitutional Court provisionally suspended enactment of the law, but its final ruling is on hold as the Court is not in session due to Covid-19.

Added challenges to judicial nominations

More than six months have passed since Congress should have elected judges to Guatemala’s highest benches, including the Supreme Court and Court of Appeals. What was already a nominations process plagued by technical failures and corruption scandals has been further delayed and is likely to become even less transparent due to the pandemic. In the midst of the national quarantine, Guatemala’s Congress met on March 17, and elected judges to the Supreme Electoral Tribunal. The Congressional session to elect the judges was closed to the media as a measure to apparently prevent spreading of the virus. In response, many sectors within Guatemala expressed concern over the lack of transparency in the election process. Despite these concerns, the nine newly elected judges took the bench on March 27. 

Almost as worrying is the fact that the first order issued by the new judges suspended the annulment of six different political parties, economic sanctions against former political candidates, advertising companies and political organisations, several of whom had allegedly illicitly financed past elections. The judges justified their order by stating that the affected parties were unable to appear in their defense due to the public health crisis. This begs the question of whether the judges used Covid-19 as a pretext to justify their ruling after being influenced to suspend the annulments and sanctions. If the answer is yes, this is not a good start for the legitimacy of the newly formed Tribunal which is meant to administer justice and root out corruption in electoral matters.

Covid-19 as a pretext for limiting civil liberties

Not only was the media excluded from the Congressional session to elect new judges to the Supreme Electoral Tribunal, but the government has placed further restrictions on journalists seeking to access and cover other Congressional sessions. On April 4, in response to the limitations, the Human Rights Ombudsman filed an amparo[2] with the Constitutional Court claiming that the restrictions violated Guatemala’s constitution. Similarly, about a week later, more than a hundred journalists, columnists, activists and civil society organizations demanded that President Giammattei and his government stop threatening their freedom of expression and independent journalism. The demand arises from the fact that the government has attempted to silence media outlets critical of the government’s response to the pandemic by using intimidation tactics and excluding journalists from official WhatsApp groups where the government disseminates Covid-19 information.

Can the Constitutional Court continue to resist?

The Constitutional Court has remained a pocket of resistance throughout the attacks on the justice sector and the rule of law in Guatemala, and hopefully this will remain true in spite of the pandemic. In addition to the amparos pending before the Constitutional Court regarding the NGO law and the restrictions placed on journalists, the Court continues to receive amparos during the pandemic. This includes amparos filed by the Human Rights Ombudsman to decentralise Covid-19 testing and for President Giammattei’s failure to appoint a head of the Presidential Secretariat for Women which works to protect the rights of women and children, an amparo requiring President Giammattei to guarantee water and electricity services throughout the health emergency and an amparo to guarantee that the conditions of employees are not modified during the pandemic. It is unclear how these pressing constitutional questions will be resolved while the Court is not in session and how much of a backlog the institution can manage once it is up and running again. How long can justice be postponed during a public health crisis?

Sources

[1] WOLA, “Guatemala: National and International Organizations Condemn Approval of NGO Law,” https://www.wola.org/2020/02/organizations-condemn-approval-of-ngo-law/ (18 Feb. 2020).

[2] An amparo is a remedy to protect constitutional rights and is common to many legal systems in Latin America.

Rule of Law Backsliding and a Rapidly Closing Space for the Justice System in Guatemala

/ Lauren McIntosh / Leave a comment
© Wikimedia Commons

The rule of law has rapidly continued to backslide in Guatemala since my last post on ILAC’s report on the Guatemalan judiciary and our call for support to the United Nations-backed International Commission Against Impunity in Guatemala (CICIG). I had originally planned to discuss in this post how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development. But, with such significant rule of law backsliding, the more pressing question is if it is possible to push back against this rapidly closing space for the justice system in Guatemala without CICIG?

Rule of law backsliding

In 2018, Guatemala’s Constitutional Court ruled against President Morales’s attempts to bar CICIG’s Commissioner from reentering the country, and since the beginning of the new year President Morales has retaliated against the Guatemalan justice system.

On January 7, President Morales declared that he was unilaterally and immediately terminating the agreement establishing CICIG even though its mandate does not expire until September. He also demanded that all CICIG officials leave the country within 24 hours. In his declaration he stated that CICIG had severely violated national and international laws and that it put the security, public order, governance, human rights, and above all the sovereignty of Guatemala at risk. This type of authoritarian overreaching to attack and dismantle the rule of law follows the pattern of authoritarian trends globally, as evidenced by V-Dem Institute’s 2018 Annual Democracy Report.

Two days after President Morales’s declaration, Guatemala’s Constitutional Court ruled that his unilateral decision was unconstitutional. This was a step forward for the rule of law in Guatemala and it appeared that the justice system was pushing back against a closing space. Nevertheless, this positive momentum was short lived. Later that same day, Guatemala’s Supreme Court accepted a request from Congress to begin impeachment hearings against three Constitutional Court magistrates and to lift their immunity. The magistrates subject to that request are those who have consistently ruled in favor of CICIG. The impeachment proceedings are currently pending before Congress, and the ultimate decision on whether to lift the magistrates’ immunity and possibly remove them from the bench now lies with a Congress which is heavily aligned with President Morales.

In addition to President Morales’s unconstitutional unilateral decision to terminate CICIG’s mandate, another recent alarming indicator of rule of law backsliding is that Guatemala’s Congress is considering an amendment to its National Reconciliation Law which would grant amnesty to those convicted of serious human rights violations within 24 hours of the amendment’s ratification. This would result in the freeing of more than 30 convicts, most of whom are former military officers, and end any ongoing or future trials for crimes which occurred during Guatemala’s 30-year internal conflict.

Rule of law without CICIG?

CICIG, as a hybrid of international experts and authorities working with national criminal investigative institutions, has provided a mechanism for “accomplished and courageous leaders and prosecutors to emerge” in Guatemala’s attorney general’s office. The result was the prosecution of high-level government officials, including former presidents, ministers, and army officers, the breakup of over 60 criminal networks and 310 related convictions, fighting corruption throughout the judiciary and government, and strengthening the rule of law through programs, projects, and legislation. It is estimated that CICIG has contributed to a net reduction of more than 4,500 homicides from 2007 to 2017. CICIG thus brought Guatemala closer to achieving the targets of Sustainable Development Goal 16 (SDG 16) of the United Nations 2030 Agenda by: significantly reducing all forms of violence and related death rates (Target 16.1); promoting the rule of law at the national level and ensuring equal access to justice for all (Target 16.3); significantly reducing illicit financial and arms flows, strengthening the recovery and return of stolen assets, and combating all forms of organized crime (Target 16.4); and substantially reducing corruption and bribery (Target 16.5).

In ILAC’s recent report on the Guatemalan judiciary, we recommended to the government of Guatemala that in order to guarantee the rule of law for all persons (relating to SDG 16, Target 16.3) it must: support the independence of justice operators, including ensuring adequate resources are made available to the justice sector to ensure that it can perform its vital function, and guaranteeing the safety of justice operators, in particular judges in jurisdictions such as the High Risk Courts; confirm state support for the rule of law and the independence of the judiciary; and ensure that the state complies with court judgements and provides adequate resources for the enforcement of judgements, such as those by the Constitutional Court.

The continuance of Guatemala’s rule of law achievements and the support and oversight for implementing our recommendations, however, relied on CICIG’s existence.

Pushing back

Given the significant rule of law backsliding, is it possible to push back against the rapidly closing space for the justice system in Guatemala? First, it is important to note that Guatemala will hold presidential and congressional elections this summer. The elections, if conducted in a free and fair way, could bring about significant change to the current political climate. And, although the international community could not prevent an abrupt end to CICIG’s mandate, there is resistance to the closing space on the national level. Guatemalans have openly protested against the rule of law backsliding, and just last week Guatemala’s Attorney General opened an investigation into first lady Patricia Marroquin de Morales’s alleged cashing of unreported campaign checks made out to President Morales during his election bid.

This push back by civil society and justice sector actors on the national level against the closing space is hopefully a signal that the change brought about by CICIG’s work will have a lasting effect on the Guatemalan justice system. The international networks of judges, lawyers, and human rights organizations must support and encourage civil society and legal professionals in Guatemala and raise awareness of the dangers of the current rule of law backsliding. With such support, Guatemala’s civil society and the justice system’s actors and institutions can hopefully withstand the executive and legislature’s attacks on the rule of law.

ILAC was established in 2002, to facilitate cooperation by international and regional actors involved in rebuilding justice systems and the rule of law in conflict-affected countries. In 2017, ILAC selected a delegation of experts from candidates put forward by its 50+ member organisations to carry out an assessment of the justice sector in Guatemala. The delegation traveled to Guatemala in October 2017, meeting with over 150 Guatemalans, including judges, prosecutors, lawyers, human rights defenders and business leaders. Follow the latest ILAC news at www.ilacnet.org and on Twitter @ILAC_Rebuild.

Un símbolo para el futuro venezolano

/ Mariateresa Garrido / Leave a comment

Cada lugar tiene símbolos e iconos que lo identifican. En algunos casos son grandes obras arquitectónicas, como el caso de la torre Eiffel, o maravillas naturales, como las cataratas del Niágara, pero independientemente de cuál sea el símbolo, todos sirven para identificar ese lugar. Todos utilizamos esas imágenes para describir no sólo las bondades del sitio al que nos referimos, sino también de los problemas que existen en el entorno.

En Venezuela la simbología ha sido utilizada ampliamente por los políticos para crear vínculos entre ellos y sus seguidores, particularmente por el gobierno, y en el 2018 hay un nuevo símbolo que todos ven, pero del que pocos hablan: el bolso escolar.

Para el año escolar 2018-2019, el gobierno del Presidente Nicolás Maduro ordenó la entrega de 4 millones de bolsos escolares. La ayuda estuvo dirigida a estudiantes del sector público, que en palabras del Ministro de Educación alcanza el 80% de la población estudiantil activa en Venezuela (aproximadamente 7 millones 200 mil estudiantes). Los bolsos fueron distribuidos a nivel nacional, y aunque no hay cifras oficiales de cuántos fueron entregados en Caracas, es posible verlos en cualquier lugar de la capital ya que la ayuda alcanzó a aproximadamente 55,6% de la población estudiantil.

Los principales receptores de los bolsos han debido ser niños y niñas. Niños como José Liborio, quien utilizaba su bolso mientras se dirigía hacia algún lugar de Caracas en compañía de su abuela. Sin embargo, vemos que quienes los utilizan son las abuelas, los hermanos, tíos primos y demás familiares que se ven en la necesidad de utilizar un bolso para llevar sus objetos personales o las compras del día.

Para algunos esos bolsos se han convertido en el símbolo de la miseria. El símbolo de padres y madres que no tienen los recursos económicos necesarios para comprar los útiles escolares. El símbolo de niños y niñas que por diferentes circunstancias han tenido que abandonar la escuela. El símbolo de familias separadas porque miles de venezolanos han migrado en busca de un mejor futuro. En el símbolo de un pueblo que espera paciente por las dádivas del gobierno para sobrevivir en un país que está cada día más lejos de cumplir con los objetivos del desarrollo sostenible.

Y es que con este panorama cabe preguntarse ¿qué tipo de desarrollo hay en Venezuela? ¿qué tipo de desarrollo podemos tener en Venezuela? Para mí las respuestas son muy simples: en estos momentos no hay desarrollo en Venezuela y por eso tenemos una gran oportunidad para repensar qué tipo de desarrollo debemos tener. En mi opinión, ese desarrollo debe comenzar por el cumplimiento del Objetivo de Desarrollo Sostenible 4: garantizar una educación inclusiva, equitativa y de calidad y promover oportunidades de aprendizaje durante toda la vida para todos y todas. Para lograrlo necesitamos trabajar en pro del cumplimiento de diversos objetivos, incluyendo: garantizar una vida sana (ODS 3), terminar con el hambre y la desnutrición (ODS 2), garantizar que el trabajo del personal docente está bien remunerado (ODS 8).

Pero sobretodo, Venezuela necesita que el gobierno cree alianzas estratégicas para lograr los objetivos, tal y como lo prevé el ODS 17. Estas alianzas deben ser no sólo con instituciones extranjeras sino también con organizaciones nacionales porque los objetivos del desarrollo sostenible solo pueden alcanzarse con la participación de la mayoría.

La población venezolana no puede seguir siendo receptora pasiva de ayudas, porque para alcanzar los ODS necesitamos que quienes residen en el país participen de forma activa en la creación de una sociedad más pacífica e inclusiva (ODS 16), y en el camino convertir esos bolsos escolares en símbolos de esperanza y desarrollo.

ILAC launches report of Guatemalan justice sector and calls to extend CICIG’s mandate

/ Lauren McIntosh / 1 Comment

We at the International Legal Assistance Consortium (ILAC) launched our assessment report of the justice sector in Guatemala on October 10, in Washington D.C., and on November 6, in London (the report is available both in English and Spanish). ILAC, established in 2002, is an NGO based in Stockholm, Sweden, which conducts rule of law and justice sector assessments, coordinates programs, and engages in policy dialogue. As a consortium of over 50 professional legal organizations along with individual experts, we gather legal expertise and competencies from various contexts and legal traditions to help rebuild justice institutions and promote the rule of law in conflict-affected and fragile states.

ILAC’s report of Guatemalan justice sector

ILAC’s assessment team traveled to Guatemala in October 2017, and met with over 150 Guatemalan judges, prosecutors, lawyers, human rights defenders, and business leaders to assess the role and capacity of courts and prosecutorial services. The team also examined several thematic issues facing the justice sector in Guatemala today, including the legacy of Guatemala’s conflict and impunity, disputes involving development projects on land claimed by indigenous peoples and local communities, criminalization of protests, and violence and discrimination. 

“A fragile peace”

Although Guatemala has been at peace for over 20 years, its history of inequality and a civil war that lasted over 30 years have left a legacy of impunity, corruption, racism, and violence which fundamentally threaten stability and equitable development. Since 2006, however, justice sector actors have been supported by the United Nations-backed International Commission against Impunity in Guatemala (known as CICIG) which aims to investigate criminal groups undermining democracy. CICIG may conduct independent investigations, act as a complementary prosecutor, and recommend public policies to help fight the criminal groups that are the subject of its investigations. This is an innovative institution for the United Nations and is unique in the sense that it combines international support, independence to investigate cases, and partnerships with the Guatemalan Attorney General’s Office.

While the assessment report identifies ongoing rule of law challenges in Guatemala, it highlights the vital role CICIG and its current Commissioner, Mr. Iván Velásquez of Colombia, play in supporting the Attorney General’s Office to address the identified challenges. In fact, the majority of our recommendations are reliant upon CICIG’s continued presence in Guatemala as the country’s judiciary is not yet equipped to address and resolve corruption and impunity on its own. The American Bar Association, an ILAC member, has stated that:

it would be impossible to instill the rule of law within Guatemala at this time without the support of an international body. While many prosecutors and judges have – at great personal risk – performed their responsibilities with integrity, the pressures on the criminal justice sector writ large are so great that it is not currently able to operate independently without international support.

An abrupt end to CICIG’s mandate may also potentially result in backsliding of judicial and prosecutorial independence and integrity. Our report therefore includes a specific recommendation for a four-year extension of CICIG’s mandate.

In light of this recommendation, it is also worth noting that CICIG currently enjoys widespread public support in Guatemala and, according to a recent report by the International Crisis Group, “is a rare example of a successful international effort to strengthen a country’s judicial system and policing.”

ILAC joins call to extend CICIG’s mandate

Our assessment report comes at a crucial time as the future of CICIG is in jeopardy. In August, Guatemala’s President Jimmy Morales announced that he would not extend CICIG’s mandate beyond its current expiration date in September 2019 (note that CICIG is currently investigating President Morales for illegal campaign financing). President Morales simultaneously barred Mr. Velásquez, who at the time was in the United States, from re-entering Guatemala. Subsequently, President Morales ignored an order by Guatemala’s Constitutional Court allowing Mr. Velásquez to return (the Constitutional Court has reaffirmed that order just this past Thursday). President Morales has also developed a rhetoric accusing CICIG of presenting “a threat to peace” in Guatemala and constructing “a system of terror.” 

Our report is an acknowledgement of CICIG’s role in laying the foundation for a stronger and more resilient judicial system in Guatemala. And, in order to continue to build upon this foundation, we join the call for Guatemala to recommit to the work of CICIG under Mr. Velásquez and for an extension of CICIG’s mandate.

While we are neither the first nor the only observer to point out these challenges to the rule of law, we hope that the report will provide clear notice to state authorities that failure to address the documented and well-understood obstacles to the independence and effectiveness of the justice sector can only be taken as unwillingness to strengthen the rule of law in Guatemala. Without an effective and independent system of justice, the rule of law and human rights cannot be secured.

In a future post we will elaborate upon how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development, and particularly SDG 16.

To learn more, you can read the report press release here.

You can follow ILAC on Twitter here. 

Safeguarding ‘distinction’ inside the wire: Humanitarian-peacekeeper interactions in South Sudan’s Protection of Civilians sites

/ Rebecca Sutton / Leave a comment

Following the outbreak of violence in December 2013, tens of thousands—and eventually hundreds of thousands—of internally displaced persons (IDPs) sought refuge at UN bases in South Sudan. These sites came to be referred to as Protection of Civilians (PoC) sites, guarded by forces from the UN Mission in South Sudan (UNMISS) under a robust PoC mandate. In response, many international humanitarian actors, ranging from UN agencies to NGOs, sought to live and work ‘inside the wire’ of the PoC sites as well. They wanted to be close to the war-affected populations they serve, and were also seeking to protect their own staff from violent attacks. As a general rule, global civil-military guidance dissuades humanitarian actors from co-locating with military actors in conflict settings. In recognition of the exceptional circumstances, however, the UN Humanitarian Country Team in South Sudan approved the temporary use of military force protection by humanitarian actors; this has enabled them to reside in the sites.

South Sudan’s PoC sites have generated considerable interest from policymakers and scholars alike, some of whom have drawn attention (pp. 39-40) to the complex relationships of diverse international actors operating in the sites. What is missing at this juncture, from a legal perspective, is a robust account of the challenges that co-location in the sites poses for the civilian-combatant distinction in international humanitarian law (IHL). Drawing on field research[1] conducted in South Sudan in 2015, this article highlights one slice of the international community where interactions are shaped by struggles over ‘distinction’: the humanitarian-peacekeeper relationship.

As one UN civilian actor notes, the PoC sites in South Sudan are spaces where the UN mission ‘comes closest’ to humanitarian actors. Another civilian member of UNMISS surmises, ‘I’ve never seen another example where humanitarians and UNMISS work so closely’. This issue of physical proximity is also flagged by a humanitarian NGO actor living in one of the PoC sites. He is concerned that the mere fact of his presence in the site undermines any efforts his organization might make with regard to distinction from UNMISS. An individual working for a different humanitarian NGO picks up this thread. He explains that co-locating with UN military forces leads ‘fiercely independent’ humanitarian NGOs to fear that they are compromising the humanitarian principles of neutrality, independence, and impartiality. It is adhering to these principles, he explains, that helps humanitarian actors to demonstrate they are distinct.

It is apparent that the attempt to safeguard distinction from UN military actors is not always, or only, about compliance with international law. Much of the time, humanitarian NGOs are also hoping to influence local perceptions. One component of this perceptions work involves the attempt to secure the trust and acceptance of the war-affected populations they seek to serve. As one humanitarian actor explains, it is local beneficiaries who matter most; the ‘element of distinction is purely from their perspective’. Continue reading →

Should the system of investor-state dispute settlement (ISDS) be reformed?

/ Andrea M. Ewart, Esq. / Leave a comment

Should the system of investor-state dispute settlement (ISDS) be reformed? That is the question being considered by the United Nations Commission on Trade Law (UNCITRAL).

ISDS provisions are contained in about 3,000 investment treaties and investment chapters of free trade agreements. The provisions permit a foreign investor in the form of a company or individual to bring a claim directly against a State where the investor believes that its investment is being threatened by an action of the State.Foreign-Direct-Investment

FDI and ISDS

FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure, particularly in developing countries. Investment agreements aim to create an enabling environment for foreign investors. Among other things, the provisions protect them against expropriation without adequate compensation and guarantee their ability to freely move assets in and out of the country. Sovereign States, on the other hand, need to govern with a multiplicity of interests in mind and their actions can, inadvertently or deliberately, deprive the foreign investor of an intended benefit. ISDS procedures provide the mechanism by which such disputes are resolved.

The most common procedures are drawn from the world of commercial arbitration, used to determine disputes between two commercial parties. They involve the use of an arbitral tribunal which gives equal standing to the investor and the State and whose decisions are binding.

The majority of developing countries rely on foreign direct investment to foster economic growth and development. The overwhelming majority of defendants in arbitral proceedings are the governments of developing and emerging economies. The outcome of ISDS arbitral tribunals can and do impact the ability of governments to develop and implement policy.

Concerns Regarding ISDS

A note by the UNCITRAL Secretariat – “Possible reform of investor-State dispute settlement” and the Report of its Working Group on ISDS summarize expressed concerns regarding ISDS. They include:

  • Inconsistency of arbitral decisions – instances where the host State is sued by different investors on the same issue but with different outcomes from different tribunals;
  • Lengthy duration and extensive cost of ISDS – States that have been sued may not have the resources to adequately defend its policies and actions or to pay arbitral awards;
  • Lack of transparency – States are using public funds and tribunal decisions may be sealed;
  • Lack of an early dismissal mechanism to address unfounded claims;
  • Lack of a mechanism to address counterclaims by respondent States;
  • Heavy reliance on arbitrators from the investor States and who may not understand policy.

Questions at the heart of these concerns address the overall legitimacy of the process. Should a system created to address disputes between two commercial parties be used to resolve policy issues that may impact millions of people? Is it acceptable to exclude domestic investors from the same recourse available to foreign investors?

Proponents of ISDS acknowledge the validity of some of these concerns and say they can be addressed by reforming the current system of ISDS. They also point to the underlying concerns that led to the use of ISDS in the first place – politicization from the use of diplomacy to address dispute and the slow judicial processes in some countries’ domestic legal system.

Concerns are not limited to those expressed by emerging economies. The EU’s submission to the UNCITRAL Working Group highlights systemic issues it believes warrants establishment of a multilateral investment court that would replace the use of arbitral tribunals. A March 2018 ruling of the European Court of Justice concluded that the ISDS clauses in an intra-EU investment treaty were incompatible with EU law.

The Trump Administration has also inserted its perspective on ISDS in the context of the NAFTA re-negotiations. The U.S. Government has consistently expressed its displeasure at being required to abide by the decisions of international panel decisions it finds not to its liking. In August 2017, the Trump Administration floated the idea of opting out of NAFTA ISDS provisions (Chapter 11). Should the US remove itself from the NAFTA ISDS provisions this would be a major departure in US policy and a disappointment for US corporations but a shot in the arm for opponents of ISDS.

Investment Facilitation

UNCITRAL will continue its deliberations. A growing consensus appears to be that while ISDS serves a role the system needs to be reformed. Meanwhile, in December 2017, 70 WTO members agreed to begin discussions to develop the framework for a Multilateral Investment Facilitation Agreement. Discussions will not address ISDS reform, but the purpose will be to minimize the likelihood of disputes by creating a more transparent, efficient, and predictable environment for facilitating cross-border investment.

To the extent that disputes arise because of tension between development-oriented policies of host States and investor goals, conflicts can best be minimized by incorporating a true development dimension into whatever frameworks are used to manage the FDI inflows into developing countries.

(Cross-posted from DevelopTradeLaw blog.)

Opportunity to Advance a Development Dimension to Investment Facilitation

/ Andrea M. Ewart, Esq. / Leave a comment

The Joint Ministerial Statement on Investment Facilitation for Development adopted on the last day of the 11th World Trade Organization (WTO) Ministerial Conference (for our discussion on the Ministerial click here), signals an opportunity to advance a development dimension to investment facilitation. The Joint Ministerial Statement called for the start of structured discussions with the aim of developing a multilateral framework for facilitating foreign direct investments (FDI).

The 70 WTO Member States that endorsed the Joint Ministerial Statement agreed to begin discussions early in 2018 to develop the elements of the framework to:

  • improve the transparency and predictability of investment measures;
  • streamline and speed up administrative procedures and requirements;
  • enhance international cooperation, information sharing, the exchange of best practices, and relations with relevant stakeholders, including dispute prevention; and
  • seek to clarify the framework’s relationship and interaction with existing WTO provisions, with current investment commitments among Members, and with the investment facilitation work of other international organizations.

The overall goal is to create a more “transparent, efficient, and predictable environment” for facilitating cross-border investment. These outlined elements appear to focus on creating a platform that will address the “resource curse” – the high levels of poverty and inequality present in many oil-rich countries and other developing/emerging economies with the “greatest natural resource endowments”.

The underlying assumption is that the framework is needed to provide greater accountability and transparency. We believe this is only a partial solution to the challenges that developing countries face with regards to FDI. These discussions provide an opportunity to advance a development dimension to investment facilitation by also providing rules of engagement to enhance development-oriented and sustainable outcomes for FDI.

FDI & Developing Countries

The majority of developing countries need foreign direct investment to foster economic growth and development. FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure in these countries. At the same time, because for the most part this investment is introduced and controlled by private companies, there is a tension that can, and often does, arise between the goals of private international capital and a country’s development needs.

In an earlier post, we discussed the PBS documentary, The Big Men, which tells the story of the discovery of the first commercial oil field in Ghana’s history. As events unfold, the Texan-based venture capitalists who bore all the financial risk butt heads with a newly-elected government whose officials refuse to endorse the initial agreement allocating to the investors the overwhelming majority of the profits. Juxtaposed with these events is the story and images from Nigeria’s Niger Delta where the “resource curse” is plain for all to see. The dire poverty, environmental degradation and the violence in that oil-rich region add poignancy to the position of the Ghanian officials, even as one wonders about their real motives.

For the Texan-based investors (which included a Ghanian who had initially discovered the resource but lacked the capital to fully exploit it) the issue was couched in the language of risk, adequate return on their investment, as well as respect for the initial contract signed with the Ghanian government. For the Ghanians, the issue was discussed in terms of their need to be able to use the resources located on their sovereign land to properly house, feed, and educate the populace.

The events that unfold in Ghana illustrate the tensions that can exist between the goals of private international capital and a country’s development needs. On the one hand, we have the private venture capitalists who invested where no one else would probably have. Ghana was not known for its oil resources. In return, however, they demanded a hefty return on their investment. But, does any government have the right to sell a country’s birthright to these investors? Yet, of what use to the country is the oil, or the diamond, or the gold left unmined?

How does the framework provide an opportunity to advance a development dimension to investment facilitation?

The Framework’s Development Dimension

The Joint Ministerial Statement recognizes the “dynamic links between investment, trade and development”. The Members also agreed that “facilitating greater developing and least-developed Members’ participation in global investment flows should constitute a core objective of the framework”.

To this end, the Members will seek to assess the needs of developing and least developed country Members to implement the multilateral framework so that technical assistance and capacity building support can be made available to address these identified needs. An integral part of the framework will be the right of Members to meet their policy objectives.

The policy objectives of responsible governments include helping their citizens gain access to jobs, decent housing, roads, education and other social services. Rich-oil countries with energy-deprived citizens is an untenable outcome. So are hotels built with foreign capital and by workers who live in shacks across the street.

Rules are needed to provide guidelines to help honest governments and fair-minded investors determine an equitable distribution of profits derived from exploitation of a country’s resources. These rules should provide tools to help countries negotiate fair deals. These rules should provide a pathway towards more development-oriented and sustainable outcomes for FDI.

These rules can and should be incorporated within the elements of the multilateral framework for facilitating foreign direct investments.

(Cross-posted from DevelopTradeLaw blog)

Achieving Gender Parity in International Courts and Bodies: Does Diversity Matter?

/ J. Jarpa Dawuni, Ph.D. / Leave a comment
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Conference Attendees

From October 3 to 5 2017, women’s rights advocates, feminist scholars, Ambassadors, Heads of Government, policy practitioners and supporters of women’s rights convened in the beautiful city of Den Haag in the Netherlands. Viviana Krsticevic, Maria Noel and the entire team at the GQUAL Campaign organized this conference which had a twofold purpose; first, to celebrate the second-year anniversary of the GQUAL Campaign, and second, to bring together participants under a conference theme “Changing the picture of International Justice.” The highlights of the three-day event included an exciting plenary session with speakers like Judge Silvia Fernández de Gurmendi, the current President ofthe International Criminal Court (ICC).

ICC President Judge Fernandéz de Gurmendi and Prof. Josephine Dawuni

Judge Fernandéz de Gurmendi, while acknowledging the gains made in achieving near gender parity on the ICC bench, cautioned participants and feminist advocates that such gains could easily be reversed. The ICC reached a high of eight women judges out of eighteen in 2003, which reduced to six out of eighteen by early 2017. With the  ICC elections in December 2017, women took five of the six available seats. Out of the five women elected, two were from the continent of Africa, Judge Reini Alapini-Gansou of Benin and Judge Solomy Balungi Bossa of Uganda.

 Another highlight of the plenary session was the speech by the current Vice President of Costa Rica, Her Excellency Ana Helena Chacón. While reflecting on her experience in the parliament of Costa Rica and now in the office of the Vice President, Mrs. Chacón hinted at the fact that women have to work together to push women’s equality forward, noting further that “together we can and we should change the face of international quality; democracy is real if we leave no one behind.” Dr. Theresia Degener, Chairperson of the United Nations Committee on the Rights of Persons with Disabilities (CRPD), gave moving remarks on the imbalance in the UN body, noting in particular the challenges she has had to face as the only woman in the Committee at one point during her tenure. She called for more efforts to nominate women. The rest of the conference was filled with insightful panels and workshops aimed at addressing central questions such as why equal participation of women matters, the international obligations of states in promoting gender equity on international courts and bodies, and strategies on how to achieve gender parity on these bodies.  The conference concluded with the adoption of an Action Plan to achieve gender parity.

The overall goal and theme of the conference, was to acknowledge modest gains, while mapping a strategy for moving the campaign forward. The question that remains to be answered is how do we move this agenda forward? I provide a few strategies, which I believe are important for the overarching goal of changing the picture of international justice with the goal of achieving gender parity on international courts and bodies. In the first place, it is important to acknowledge, celebrate and develop a conscious effort to embrace all forms of intra-group diversity. To borrow from the acclaimed poet, Maya Angelou, “we all should know that diversity makes for a rich tapestry, and we must understand that all the threads of the tapestry are equal in value no matter what their color.” The global feminist movement has come under attack for tendencies to reproduce the very gendered and privileged hierarchies which it purports to fight in the first place. For Black feminist scholars such as Kimberlé Crenshaw, developing the concept of intersectionality provides a new prism through which feminist scholars can begin to question the multiple and intersecting layers different women face in their struggles against patriarchy and other forms of dominant discourse.

 

The call for acknowledging diversity has also come from what some call “Third World Feminists”. Scholars like Chandra Talpade Mohanty has criticized the western notions of womanhood and the incipient tendency at “othering” non-western women in her powerful piece “Under Western Eyes.” African feminist scholars such as Filomina Steady, Amina Mama, Oyeronke Oyewumi and Akosua Adomako Ampofo have increasingly called for a recognition of African notions of womanhood and the impact of imperialist and globalist layers of oppression in challenging the traditional notions of womanhood and women’s agency. Chicana feminist such as Gloria Anzaldúa, and feminist scholars from Asia such as Trinh Minh-ha, each remind us of the need for the global feminist movement to accept, celebrate and embrace a truly diverse global ethos of feminism.

So, how can the plethora of feminist voices be incorporated in the global agenda for more women on international courts in order to create an all-inclusive bench? The answer is simple; that in adopting strategies to increase gender parity on international bodies, these efforts  should focus on adopting all-inclusive strategies that advocate for the “best woman candidate”, irrespective of national origin, geo-political affiliation, sexual orientation or other identity marker. This sounds like a simple suggestion; however, it requires that feminist scholars develop an understanding of the historical, social and political context from which different women come from. No doubt the domestic politics of judicial nominations will have to be examined as well. Ascribing personal agency to some women from particular regions of the world and not to others­— which has tended to plague the global feminist movement, will need to be addressed in the global efforts demanding the nomination of more women. If indeed, feminist scholars and advocates are interested in achieving gender parity, it must be a gender parity that fully embraces intra-group diversity. The multilayered and intersecting identities women come with, will need to be fully recognized, acknowledged and accepted.

Another important strategy for the success of the GQUAL Campaign will be the cross-pollination of ideas and strategies. In other words, there is the need to learn from one another in terms of what has worked in some places and not so well in other places. Let me pause by noting that I am fully aware of the plethora of different variables at play here—the different legal traditions, the different political systems, the multiplicity of selection methods and the varying levels of political will to name just a few. Nonetheless, as I argued in my presentation at this conference, based solely on my research findings from the continent of Africa, women across the African continent have done relatively well, within a relatively short time period in not only accessing the judiciaries, but rising to the top as Chief Justices. At the international level, women from across the continent of Africa have made immense gains as international judges—both permanent courts and ad hoc tribunals.

Though the gains are not uniform across the continent—and that should come as no surprise for the second largest continent of 54 nation-states, yet certain patterns are evident. The success of African women as judges on international courts at the global and sub-regional levels in the International Criminal Court, the International Court of Justice and the African Court on Human and Peoples’ Rights are noted in a recently published edited by Josephine Dawuni and Akua Kuenyehia—- International Courts and the African Woman Judge (Routledge, 2018). Using legal narratives, this book presents the lived experiences of seven women judges from Africa. It challenges exiting notions of gender and judging, it elevates the voice of the woman judge and it leaves a legacy for the future through the voices and lives of these remarkable and accomplished women judges. Documenting the experiences of women who have blazed the trail in the international judiciary is important for raising awareness not only to stakeholders, but also to future generations that “yes, women can!” Documentation through theoretically grounded research and the development of context relevant epistemology, such as the matri-legal feminist theory I have argued elsewhere[1] is important for moving the gender equality agenda forward.

IMG_9821Other speakers at the conference spoke about developments that have taken place within the African context. Osai Ojigho highlighted the developments within the African Court which led to the current situation with the African Court being the most gender balanced international court as of this writing. In an earlier post, I highlighted the African court as a roadmap for achieving gender parity and encouraged other courts to follow suit. The African experience provides many lessons which the rest of the world can learn from. To think that in its eleven-year history of existence, it has achieved gender parity, a goal and aspiration which the European Court of Justice and the European Court of Human Rights are yet to attain. Sheila Keetharuth, the UN Special Rapporteur on the Human Rights Situation in Eritrea highlighted the developments that have taken place within the African Commission on Human and Peoples’ Rights where women have made gains as Commissioners.

Lastly, it is necessary for the survival for a movement, or campaign like GQUAL, that  scholars and policy makers engage in research as a tool and mechanism for awareness raising. Justice Mary Mamyassin Sey, a Justice of the Supreme Court of The Gambia and first woman judge in The Gambia discussed her experiences across multiple jurisdictions, spanning The Gambia,  and as a Commonwealth judge in Sierra Leone, Swaziland, Liberia and Vanuatu. While discussing the challenges of working in different cultural contexts and often being the “first” and often “only woman”, Justice Sey noted that her call to duty, integrity and personal work ethics contributed to her success in these multiple arenas. Indeed, being at the intersection of multiple identities has come with its own costs, for instance with the threat on her life and threat of deportation for her decision in the Vanuatu Supreme Court that led to the conviction of 14 members of parliament.

The foregoing summary is my personal de-briefing from the wonderful conference in The Hague. Many strategies and action plans were adopted during the workshops held over two days. We look forward to more engaged, vibrant, diverse and theoretically relevant and practically plausible strategies that will be developed out of this conference. Many questions abound, such as the issue of setting aspirational targets as posited by Professor Nienke Grossman. For other practitioners such as Osai Ojigho who poignantly

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(L-R )Josephine Dawuni, Nienke Grossman and Osai Ojigho at the foregrounds of the ICJ.

asserted “why walk when you can fly?”, quotas should be used as a necessary strategy to achieve gender parity, Ojigho further argued that “women should not be shamed into thinking that quotas or affirmative action lacks merit.” Gender equality matters not because it is a women’s issue, but because it is a human issue. Together, we can make gender equality on international courts and bodies a reality! Join the movement by signing the GQUAL Campaign Pledge!

 

 

[1] See, Dawuni, Josephine. (2018). Matri-legal Feminism: An African Feminist Response to International Law. In Ogg, Kate and Rimmer, Sue Harris (eds.). Feminist Approaches to International Law. Edward Elgar Publishing. (Forthcoming, 2018).