CORRUPTION CRISIS OVERTAKES GUATEMALA

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.

Continue reading

Update on Gender Parity at the Human Rights Council

On November 8, I published Taking-stock: The Human Rights Council and Gender Parity in Special Procedures after 10 years in this blog. The Article was also cross-posted at the Human Rights Brief. To complement my article, the Human Rights Brief recently interviewed Ambassador Marta Maurás Pérez from Chile. Ambassador Maurás is a pioneer for gender parity in the UN Human Rights Council (HRC). As the only woman in the 2015 HRC Consultative Group, she was a leader in the Consultative Group’s creation of the 2015 Gender Parity Guidelines. She continues to work to increase the number of women holding special procedures positions. The interview with Ambassador Maurás discusses her dedicated work on closing the gender gap within the UN and around the world. In addition, she discusses the challenges ahead to ensure that gender parity becomes mandatory in the work of the HRC. The full interview is posted at the Human Rights Brief. I hope her words encourage us to continue our advocacy to promote gender parity at the HRC and other international tribunals and organs.

Nuevo libro para abogados hispano- y angloparlantes/New Book for Lawyers Who Speak Both Spanish and English

(English version follows)

Tres mujeres y profesoras de derecho: S.I. Strong de la Universidad de Missouri (Estados Unidos), Katia Fach Gómez de la Universidad de Zaragoza (España) y Laura Carballo Piñeiro de la Universidad de Santiago de Compostela (España) tenemos el honor de presentar el libro Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas/ Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices  (Edward Elgar Publishing Ltd., 2016). Este trabajo supone una plasmación por escrito de algunas de las características más relevantes de nuestras carreras profesionales: trayectorias académicas y de práctica de la abogacía internacional desarrolladas en español e inglés, y en estrecho contacto con las comunidades jurídicas latinoamericana, europea y estadounidense. En consonancia con ello, la obra que hemos elaborado permite que abogados y estudiantes de derecho que hablan inglés y español adquieran fluidez jurídica en un segundo idioma. Realizar dicho esfuerzo es extremadamente importante no sólo para abogados especializados en derecho internacional, sino también para abogados dedicados al derecho nacional pero que tratan con clientes cuya lengua materna es un idioma extranjero.

La forma en que “Derecho comparado para abogados anglo- e hispanoparlantes” involucra a abogados y estudiantes de derecho en la práctica jurídica bilingüe es única por diversos motivos. En primer lugar, y dado que la mayoría de los abogados bilingües trabajan con otros abogados y con clientes que cuentan con unos orígenes legales y culturales muy variados, el libro no se limita a analizar unas jurisdicciones concretas. Por el contrario, el libro ofrece información sobre diversos países hispanoparlantes (fundamentalmente, España y México) y angloparlantes (fundamentalmente, Estados Unidos y Reino Unido). En segundo lugar, la monografía contextualiza la información, no sólo ubicando el nuevo vocabulario y los principios legales en el contexto lingüístico apropiado –el libro es completamente bilingüe-, sino también ofreciendo abundantes comparaciones con la legislación y la práctica de otras jurisdicciones. En tercer lugar, este tipo de análisis permite que los abogados y estudiantes de derecho aprecien las diferencias existentes en las culturas jurídicas, empresariales y sociales relevantes. Ello ayuda a los lectores a no incurrir en ofensas que puedan derivarse de problemas de comunicación involuntarios. El libro también explica por qué existen dichas diferencias y cuál es su fundamento en un contexto jurídico determinado.

Profundizar en la comprensión a través de barreras nacionales, sociales y culturales es un objetivo esencial de un mundo cada vez más pluralizado. Derecho comparado para abogados anglo- e hispanoparlantes es una herramienta muy útil para aquellos que trabajan cruzando fronteras lingüísticas. Como este libro de 700 páginas demuestra, no hay que temer a las diferencias, sino que hemos de alegrarnos de que la diversidad jurídica y lingüística exista.

***

unnamedThree law professors – S.I. Strong of the University of Missouri, Katia Fach Gómez of the University of Zaragoza and Laura Carballo Piñeiro of the University of Santiago de Compostela – have the honor of presenting their new book, Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing Ltd., 2016).  This work reflects some of the characteristics that are most relevant to our professional careers as academics and practitioners working in both English and Spanish, and involving jurisdictions in Latin America, Europe and the United States.  Consistent with that, the book that we have written helps lawyers and law students who speak Spanish and English become legally fluent in their second language.  This effort is extremely important not only for specialists in international law, but also for domestic lawyers whose clients speak different languages.

 

Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes” introduces lawyers and law students to bilingual legal practice in several ways.  First, the book does not focus solely on single jurisdictions, since most bilingual lawyers work with clients and co-counsel from a variety of legal and cultural backgrounds.  Instead, the book offers information on several English-speaking nations (primarily the U.S. and the U.K.) and Spanish-speaking countries (primarily Spain, Mexico and Argentina).  Second, the text seeks to contextualize the information, not only by placing the new vocabulary and legal principles in the appropriate linguistic setting (the book is entirely bilingual) but by providing extensive comparisons to the law and practice of other jurisdictions.  Third, the discussion helps lawyers and law students appreciate differences in the relevant legal, business and social cultures, thereby helping them avoid giving offense through any inadvertent miscommunications, and explains why those differences arose and why they make sense in that particular legal environment.

 

Increasing understanding across national, social and cultural lines is an important goal in our increasingly pluralistic world, and Comparative Law for Spanish-English Speaking Lawyers provides a useful tool for those who work across linguistic lines.  As this 700+ page text shows, legal and linguistic differences need not be feared but can instead be celebrated.

 

Two Steps Forward, One Step Back

one-step-forward

Book cover, courtesy International Nuremberg Principles Academy. (Original: Montana Historical Society)

On 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.

Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.

The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost. Continue reading

Job Opportunity: Post Doc Positions

WZB Berlin Social Science Center

The WZB Berlin Social Science Center is seeking to appoint two research fellows to be employed fulltime (39 hours/week) for up to five years, commencing on 16th January 2017 or as soon as possible thereafter.

Main tasks involve the theory-based research of transnational and international institutions, their social and political prerequisites, and the repercussions on national processes. The successful candidates are to work within the framework of the research programme of the Global Governance unit.

Please see the unit’s website or following attachment for more information:

 

Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership

In July 2016, the U.S. Department of Labor accepted the first labor petition filed under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement (TPA).  Filed by Colombian trade unions and the AFL-CIO, the fundamental argument of the petition is that the Government of Colombia failed to meet its commitments under the 2011 U.S.-Colombia Labor Rights Action Plan (LAP) which were a pre-condition for the U.S. to extend preferential trade benefits to Colombia.  USDOL’s public report on the petition is due in January 2017 unless USDOL determines more time is necessary.

Critical among those commitments were (a) effective implementation a new legal framework to investigate and punish threats and violence against trade unionists; (b) putting a stop to employers’ use of intermediaries and certain types of employment contracts to chill representative trade unionism and avoid compliance with labor laws; and (c) ensuring that labor inspection, administrative and dispute resolution processes respond to worker complaints and deter employer violations.  Over 2,500 trade unionists have been murdered in Colombia since the 1980s.  These murders and threats did not stop after the U.S.-Colombia TPA went into effect in 2012.

A lot is at stake this year for Colombia.  Not only did the Government of Colombia and FARC agree to a Peace Accord ending the 52-year-old Civil War, but Colombia is being considered for accession to the Organization for Economic Development (OECD), where it would join Mexico and Chile as the only Latin American members.

Many of the labor-related commitments the Government of Colombia made during TPA negotiations are also required for accession to the OECD.  If USDOL’s Chapter 17 report confirms petitioners’ allegations, Colombia could be subject to international dispute resolution and lose trade benefits under the TPA – and could jeopardize Colombia’s bid to become a member of the OECD.

The OECD formally launched Colombia’s accession process in October 2013.  This rigorous process subjects Colombia to assessment under 250 legal instruments and formal evaluation by 21 separate committees, including the Employment, Labor & Social Affairs Committee.

The OECD’s Roadmap for Colombia’s accession outlines several labor-related policy goals to be met, including:  improvement of labor market opportunities for women, youth, older people and the unskilled; a financially and socially sustainable retirement and social support system; assistance for the poor and out of work; and better management of migration flows to foster integration of immigrants and their children.  Critically, the Roadmap calls for Colombia to implement policies to ensure effective governance of the labor market and to “ensure the full respect of labour rights, with a particular focus on the rights and safety of trade union representatives” (p. 18).

The OECD released its review of Colombia’s Labour Market and Social Policies in January 2016. Much of the OECD’s analysis mirrors the issues raised by Colombian unions and the AFL-CIO in their USDOL petition.  Three of these areas are: (1) inadequate protection of trade unionists from ongoing threats and violence; (2) shortcomings  in labor law administration and enforcement, including weak labor inspection and fine collection processes; and (3) the tendency among Colombian employers to utilize civil law contracts so workers do not benefit from rights in the Colombian Labor Code and making it difficult for workers to effectively organize independent trade unions and bargain collectively.

The OECD observes that 20 trade unionists were murdered in 2014 and that there were over 300 assaults, threats, harassment and other kinds of violence perpetrated against trade unionists that same year.  The OECD cites conflicting reports about the motivation for murders of and violence against trade unionists – whether as a result of their role as trade unionists or local leaders standing up to armed groups – but emphasizes that improved prosecution of the crimes in close contact with trade unions during investigation would promote greater clarity as to why the violence occurred.  While the Colombian protection program for trade unionists has improved, the program faces a number of challenges such as budget cuts, a lengthy and laborious process for assessing threat risk against trade unionists and corruption scandals that demonstrate inadequate controls.

In addition to discussing and assessing fundamental labor rights issues, the OECD’s review of Colombia’s labor and social policies highlights the country’s need for better social security (including unemployment) policies that are more broadly applied.  Over 52% of Colombia’s workforce is self-employed, with 83% in unregistered businesses not covered by social security.

Observing that comprehensive reform to the Colombian social security and pension system is required, the OECD highlights a number of specific policy recommendations to incentivize more Colombians to participate in social security.  Only about 35% of the Colombian population in retirement age receives a pension – in contrast to 90% on average in the OECD.  Acknowledging Colombia’s introduction of a new unemployment protection system, the OECD notes that the system is underfunded and provides limited support to job seekers.

Many of the structural labor market issues noted by the OECD such as informal work and non-participation in the social security system have a bigger impact on women than men.  Despite the fact that female labor market participation in Colombia has increased over the last few decades, 20% of women aged 16-24 are not active in the labor market or studying (Not in Employment, Education and Training or NEET) compared to 1% of men.  In addition to higher unemployment rates than men and lower participation in formal employment, women in Colombia suffer from a “large and persistently stable gender pay gap” (p. 16).  Fewer women receive health protection or contribute toward a retirement pension so look forward to poverty in their old age.   Laws were passed in Colombia in 2010 and 2011 to make sex discrimination in pay unlawful and extend maternity leave from 12 to 14 weeks, but many Colombian women do not benefit from these protections because they work in the informal sector.

Critics have argued that the Government of Colombia may not be ready for or be deserving of OECD membership or special access to markets and free trade benefits because of ongoing human and labor rights violations.  This may be true.  The Colombian case shows that OECD and U.S. conditionality can contribute to a safer and better society in Colombia though many challenges remain.

Interview with Georges Abi-Saab

In the latest edition of our series titled “Conversations with Leading Judges”, it was my great pleasure to interview Georges Abi-Saab, Honorary Professor of International Law at the Graduate Institute of International and Development Studies in Geneva.  He was Member (and former Chairman) of the Appellate Body of the World Trade Organization (since 2000). He was also Member of the Administrative Tribunal of the International Monetary Fund and of various international arbitral tribunals (ICSID, ICC, etc.)  Abi-Saab served as Judge ad hoc of the International Court of Justice and Sometime Judge on the Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda and Commissioner on the United Nations Compensation Commission (UNCC). He has published widely on international law in both English and French, including his General Course on Public International Law at the Hague Academy.

The interview touches upon a wide array of topics including pluralism within International Law, the New International Economic Order, politicization of the WTO Appellate Body, diversity within international adjudication, and other topics.  The  video interview is available at:http://www.jus.uio.no/english/services/knowledge/podcast/guest-lectures/2016/interview-with-his-honour-judge-georges-abi-saab.html

The full set of interviews is available at:  http://www.jus.uio.no/english/research/areas/intrel/interviews/

Accountability Counsel Internships

One of the premier human rights law firms in the country – Accountability Counsel – is looking for students and recent graduates interested in international law, human rights, accountability, dispute resolution, complex negotiations, environmental justice, corporate accountability, women’s rights, and/or international development.

Accountability Council:

assists communities around the world to defend their environmental and human rights. …

and seeks to

hold corporate and institutional violators accountable through our dual approaches: direct support to communities and policy advocacy.

The organization in particular works on behalf of people and communities harmed by internationally-financed projects through community driven and policy level strategies to access justice.

The following opportunities are now open for our Fall 2016 unpaid Fellow and Intern Programs:

  • Law Fellow – San Francisco – 2L and 3L law students or recent law school graduates (within one year of graduation).
  • South Asia Law Fellow – Washington, D.C – 2L and 3L law students or recent law school graduates (within one year of graduation).
  • Policy Fellow – Washington, D.C. – law students, graduate students currently studying policy and/or another related field, or recent graduates (within one year of graduation).
  • Data Analyst Fellow – San Francisco – graduate students and recent graduates (within one year of graduation) in a related field of data or statistics.
  • Communications & Operations Intern – San Francisco – undergraduate students or recent graduates (within one year of graduation).
  • Data Intern – San Francisco – undergraduate students or recent graduates (within one year of graduation).

Any interested students/recent graduates should consult the website for more information.  To apply, students must complete an online application form.

Read On! New Book on Public Law of Gender

I am delighted to contribute my first post to this excellent website to let readers know of the final book in a six volume series, Connecting International Law with Public Law, which I initiated as part of my former position as Director of the Centre for International and Public law at the ANU (2006-2015).  The first five volumes looks at themes including Sanctions, Access to Medicines, Environmental Discourses, Allegiance and Identity, and Security Institutions and have been published through Cambridge University Press.

The final volume has just been launched and it is of particular interest to the IntLawGrrls community.

I have co-edited this final volume with my friend and former ANU colleague Dr. Katharine Young, who is now at Boston University, and it is called The Public Law of Gender: From the Local to the Global. The volume brings together leading lawyers, political scientists, historians and philosophers.

The book examines the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, and documents the raft of legal reform and critically analyses its effectiveness. In demarcating the academic study of the public law of gender, the book examines law’s structuring of politics, governing and gender in a new global frame.

Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.  The book outlines the common and distinct challenges and issues across various fields and it provides those working with gender-sensitive laws and gender-neutral laws with an assessment of the various ways in which public law interacts with gender, by intent or outcome. It also uncovers the local and global perspectives and the obstacles facing gender equality, equity and parity, showing how traditional agendas of feminist theory now translate in a global legal frame.

I would encourage any one interested in reviewing the volume (or any of the set of six, or indeed the whole set!) for a journal to contact Elizabeth Spicer at Cambridge University Press- espicer [at] cambridge.org.

Professor Kim Rubenstein, ANU College of Law, Public Policy Fellow, Australian National University

CICIG’s investigations show web of corruption in Guatemalan state. Now, what’s next?

Two weeks ago, CICIG (International Commission against Impunity in Guatemala) revealed that the Partido Popular (PP), the former governing party of now disgraced and imprisoned former president Otto Pérez Molina and his—also incarcerated—vice president Roxana Baldetti, was engaged in a web of corruption far more extensive than initially thought. Shortly after reaching power, the party, under the direction of President Pérez Molina, had established an organized criminal structure that had seized the state, and developed an elaborate scheme of collusion between the local private sector and the state to enrich public servants and grant companies easy access to government contracts.

The revelations come just as the so-called Northern Triangle countries (Guatemala, El Salvador, Honduras) are about to receive a large infusion of international assistance through the $750 million U.S. funded Alliance for Prosperity that, rather than being limited to security sector support, seeks to stimulate economic development and strengthen democratic institutions. But given what CICIG has now revealed, are Guatemala and the other recipients ready to adopt the structural changes necessary to effectively channel and apply these funds, to address corruption at its roots?

CICIG was established in 2007 under the auspices of the United Nations to investigate organized criminal networks with links to the state. It is bound by Guatemalan law and must work closely with the country’s Public Ministry. CICIG’s operations have had their ups and downs, as has been documented in a recent report by the Open Society Justice Initiative. However, under the current leadership of Colombian prosecutor Iván Velásquez, it has made important strides in uncovering corruption and eroding impunity of even some of the most powerful.

CICIG’s most important case to date was brought to light in April 2015, when the investigatory body revealed a corruption scheme within the country’s customs authority. That case, named “La Línea,” implicated then-President Otto Pérez Molina and Vice-President Roxana Baldetti, as well as other high-level officials. The massive public outcry that followed led to the resignation of both the President and the Vice-President. Since then, CICIG and the Public Ministry have continued their investigations, and in the following months uncovered more such corruption rings involving high-level officials and prominent businesspeople.

Additional information retrieved through searches and phone taps exposed an even more extensive scheme than originally thought. In June 2016, CICIG concluded that the PP, the former government party, rather than having engaged in occasional (but serious) acts of corruption, was essentially an organized criminal enterprise whose primary purpose was to reach power to gain access to public resources for private gain. Continue reading