Judicial Independence Hanging by a Thread in Guatemala

Guatemalan justice sector actors known for being independent and impartial are facing a new slew of threats to their careers and professional integrity.

Increasing efforts to rid the justice sector of the dwindling number of rule of law defenders that remain is part of what appears to be a larger, systematic plan to return Guatemala to a state of impunity. These attempts are spurring on the rule of law backsliding which began with the attack against the International Commission against Impunity in Guatemala (CICIG) and have created an exigent situation. Corruption and impunity will prevail again if something is not done soon to protect Guatemala’s independent and impartial justice sector actors.

The full policy brief outlining the ongoing attacks against the independence of the justice sector in Guatemala is available here.

The policy brief was co-authored by Jaime Chávez Alor, Latin America Policy Director at the Cyrus R. Vance Center for International Justice of the New York City Bar Association, and Lauren McIntosh, Legal Advisor at the International Legal Assistance Consortium (ILAC).

Guatemala and Covid-19: Justice Postponed

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.

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (la excepción de inconstitutionalidad) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

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

© 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

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.

A symbol for the Venezuelan Future

Every place has symbols and icons that makes it unique. In some cases, they can be architectural wonders, as the Eiffel tower, or natural beauties, like the Niagara Falls. Independently on which symbol or icon is used, we all refer to them to describe the wonders of that place and to explain some of its problems.

In Venezuela politicians use iconography to create bonds between them and their followers. This practice has been very common in the past 20 years, and the ruling party is its main user. In fact, Venezuelans are used to this practice, and for that reason they are not discussing the newest symbol: the schoolbag.

For the Academic Year 2018-2019, President Nicolas Maduro ordered to deliver 4 million bags to students who attend to public schools. In an official event, the Minister for Education indicated that students in the public sector represented 80% of the active student population (approx. 7.2 million students). Even though there is no official data regarding the exact number of schoolbags distributed per state and that the help did not cover the entirety of the population, at least 55.6% received it; therefore, it is possible to see them in every corner of the capital.

The main beneficiaries of the help were children. Kids like Jose Liborio, who was using his bag in the subway while moving around Caracas accompanied by his grandmother. However, he is an exception to the rule. The main users of the bags are grandparents, siblings, and other relatives who need the bag to carry personal objects or just the food the bough that day. For that reason, for some people the bag is a symbol of misery and poverty. They see it as the symbol of parents who do not have the money needed to buy back to school supplies and books. The symbol of children that for several reasons have abandoned school. The symbol of broken families because thousands of Venezuelans have migrated to pursue a better life. A symbol of a population who patiently waits for the government charity to survive in a country that every day is stepping away from achieving the sustainable development goals.

And with this panorama, one could ask, what is the type of development that Venezuela has? What is the type of development that it should have? For me answers are very simple. In this moment Venezuela has no development, and precisely because of that, we have a great opportunity to discuss the type of development that Venezuelans would need to have.

In my opinion, Venezuelan development agenda should start with SDG 4: ensure inclusive and equitable quality education and promote lifelong learning opportunities for all. However, to achieve it we need coordinated action to ensure good health and wellbeing (SDG 3), zero hunger (SDG 2), and that teachers are receiving a decent salary for their work (SDG 8). But, above everything, Venezuela needs strategic alliances as indicated in the SDG 17.

The government should promote alliances not only with foreign institutions, but also with domestic organizations. Sustainable development can only be achieved with the participation of the majority of the stakeholders. The inclusion on local institutions will transform the situation from within, and produce bottom-up solutions.

Moreover, as soon as Venezuelans start participating, they will stop being passive receptors of aid. They will be active creators of a more peaceful and inclusive society (SDG 16) and in doing it, Venezuelans will be able to develop and transform those bags in symbols of hope and prosperity.

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

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

Brazilian NGO addressing environment and human rights receives inaugural Human Rights & Business Award

Justica nos Trilhos - logo

The Brazilian NGO Justiça nos Trilhos will receive the inaugural award from the Human Rights and Business Award Foundation, the recently-formed foundation announced today.  The award, which is accompanied by a $50,000 grant, is made in recognition of “outstanding work by human rights defenders in the Global South or former Soviet Union addressing the human rights impacts of business in those regions”.

As the foundation states in its press release:

Justiça nos Trilhos is an organization working closely with local communities in remote parts of Brazil – including indigenous peoples, peasants, and Afro-descendants – to address human rights and environmental abuses by mining and steel companies, in particular the multinational Vale.

Mining and steel companies have polluted the rivers on which these people depend for drinking water and their livelihoods, polluted the air causing respiratory and eyesight problems, contaminated the soil with industrial waste, displaced communities, and decimated the cultures and lives of indigenous peoples.

The foundation notes:

The human rights defenders of Justiça nos Trilhos, and the local communities they work with, have been subjected to surveillance and retaliatory lawsuits by Vale.

Information about the Vale mining company is available here.  Two stories about the work of Justiça nos Trilhos, the first of which includes Vale’s responses:

Session on Tuesday at UN Forum on Business and Human Rights

BHR ForumDanilo Chammas, a lawyer at Justiça nos Trilhos, will accept the award on behalf of the organization at a session being held at the United Nations Forum on Business and Human Rights in Geneva on Tuesday 27 November. The session “will be an interactive learning and discussion opportunity, linking the particular experiences of the award recipient and the lessons learned through those experiences to the Forum’s priority issues including human rights due diligence, sector-focused challenges, and the UN Guiding Principles [on Business and Human Rights]”.

Human Rights & Business Award – Human rights defenders in the Global South
– Tuesday 27 Nov, 18:15-19:45, Room XX, Palais des Nations, Geneva
– The session’s objectives, key discussion questions, and discussants:  here

The Business and Human Rights Award Foundation was established by the founder of the award-winning Business and Human Rights Resource Centre, Chris Avery.  The foundation website was launched today in eight languages.

Press release announcing the 2018 Business and Human Rights Award:

 

Law as a Method of Destruction: Dismantling Indigenous Land Rights and Protective Institutions in Brazil

Reporting on her 2016 official visit to Brazil, Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz declared that “[t]oday, indigenous peoples face more profound risks than at any time since the adoption of the Constitution in 1988.”[1] Brazil’s largest indigenous group, the Guaraní-Kaiowá, have and continue to suffer large-scale displacement and dispossession from their ancestral lands in the state of Mato Grosso do Sul. Encroaching large-scale agribusinesses and private landowners grab lands, transform forests into farms, and reap huge profits from agriculture exports produced on Guaraní lands. At the same time, farmers entangle indigenous representatives in decades-long legal battles over the land’s title to stave off official demarcation of lands as indigenous. Some demarcation disputes have resulted in violent clashes between private farmers, public officials and indigenous peoples.

The Guaraní-Kaiowá communities experience devastating consequences as a result of the land grabs and the ongoing violence of state-sponsored settler colonialism. To the Guaraní-Kaiowá, “land is life;” without the land, communities lack access to adequate food, water, shelter, healthcare, education and other necessities. In addition to skyrocketing suicide and childhood starvation rates, Guaraní communities are targets of violent attacks, forced removals, and dozens of assassinations of leadership. Alarmingly, the Guaraní-Kaiowá’s population has dropped from 400,000 to only 50,000 people, motivating community leaders to call this protracted conflict a “silent genocide.”[2]

As in many unfolding processes of mass atrocity, the law has played an integral role in facilitating the systematic destruction of the Guaraní-Kaiowá. Although article 231 of Brazil’s Constitution guarantees indigenous groups the collective rights of return to—and occupation and use of—their traditional lands in line with international obligations, public and private sector interests have prevented the Guaraní-Kaiowá from realizing these rights. According to Tauli-Corpuz, the law has been used to obstruct, rather than to guarantee, indigenous peoples rights in Brazil.[3] The agribusiness sector wields enormous political power in Brazil, and the ruralista caucus (“Agricultural Parliamentary Group,” or “FPA”) has used its influence to roll back not only environmental and food production regulations, but also constitutional guarantees of indigenous peoples to original lands. Indeed, the FPA supports President Michel Temer’s government while funding a massive campaign to all but eliminate indigenous land rights. In direct contravention of its international human rights treaty obligations, the state has enacted laws, passed executive decrees and issued judgments to dismantle protections of ancestral lands and indigenous peoples.

For instance, on July 20, 2017, the President approved Union Attorney General’s Opinion 001/2017, which binds all federal public administrative agencies to limit indigenous rights to demarcation in ways that do not adhere to international treaty obligations or regional human rights jurisprudence. One limitation is the application of the “temporal framework” doctrine (“tese do marco temporal”), a judicial thesis that denies indigenous peoples the right to ancestral lands if the community did not occupy and control those lands at the time the 1988 Brazilian Constitution was promulgated. Given that prior to 1988 most indigenous communities were forcibly removed from their lands in a period of military dictatorship in which the state denied legal capacity to indigenous peoples, such a doctrine severely curtails the constitutional guarantees of indigenous peoples to their original lands. Application of the temporal framework doctrine would affect 748 administrative demarcation processes presently in progress across the country.

Additionally, several proposed bills in Congress further threaten to undo protections of indigenous rights in Brazil. One of the most precarious legislative proposals is Constitutional Amendment Bill 215 (“PEC 215/2000”). If passed, PEC 215/2000 effectively would stop indigenous land demarcations, and would permit new economic and “development” activities, as well as rural settlements, on indigenous lands without free, prior and informed consent of indigenous communities as required under international law.

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) includes the clearest and most advanced articulations of the FPIC requirement under international law.[4] Although UNDRIP is non-binding, the Declaration serves as a strong, interpretive guide to determine the content and scope of indigenous rights in international law.[5] Located under several articles of the UNDRIP, FPIC again is derived from and grounded in the rights to self-determination, culture and the use of traditional lands, territories and resources.[6] Brazil also is obligated inter alia as state party to the International Labour Organization’s Convention No. 169 (“ILO No. 169”) to uphold these rights.

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Working women and evolving labor standards in U.S. and Canadian free trade agreements

My forthcoming article in the Comparative Labor Law & Policy Journal discusses and compares the evolution of labor standards in U.S. and Canadian free trade agreements (FTAs) since 2000.  It then assesses their usefulness as tools to improve IMG_0646working women’s rights.

With few exceptions, all U.S. and Canadian free trade agreements have included labor provisions since 1994.  They also contain procedures for members of the public to file petitions that trading partners have not met their labor obligations under FTAs.

After 2000, the governments of Canada and the U.S. both incorporated the 1998 ILO Declaration on Fundamental Principles and Rights at Work as the guiding standard for labor rights in free trade agreements.  The four core labor standards in the ILO Declaration are (1) abolition of child labor; (2) elimination of discrimination in the workplace and occupation; (3) elimination of all forms of forced or compulsory labor; and (4) freedom of association and the effective recognition of the right to collective bargaining.

My article examines the outcomes of a number of recent cases filed under the labor provisions of U.S. FTAs, including the U.S.-Bahrain FTA, U.S.-Peru FTA and the U.S.-Central America-Dominican Republic FTA (CAFTA-DR).   The article also compares civil society advocacy efforts in Canada and the U.S. related to the negotiation of free trade with Colombia and discusses the implementation of a Labor Rights Action Plan (LAP) between the U.S. and Colombia as a pre-condition for Colombia’s entrance into the U.S.-Colombia FTA.

A definite evolution is observed in the investigative methods, problem-solving techniques and types of remedies adopted in reports issued by the U.S. Department of Labor (USDOL) in response to public petitions filed under FTA labor provisions during the Obama Administration (2009-2016).  In addition to making fulfillment of certain labor standards commitments a pre-condition to formal entry of trade relations between U.S. and Colombia, USDOL (a) called on one trading partner to pass legislation prohibiting discrimination in the workplace (Bahrain); (b) worked with another trading partner to develop a method for denying export permits to companies that did not comply with labor court orders (Guatemala); and (c) timed the issuance of labor administration and/or elimination of child labor grants with the issuance of reports (Honduras, Dominican Republic).  USDOL also increased its capacity for addressing threats of violence against trade unionists in the territory of U.S. trade partners (Colombia).

Despite evidence of improvement in USDOL’s administration of labor petitions under FTAs since it first started receiving petitions in 1994, definitional shortcomings in U.S. FTA labor provisions weaken their utility as advocacy tools for workers as a whole and women in particular.

One problem is that only 75% of the ILO Declaration is incorporated into the definitions sections of the U.S.-Jordan FTA and CAFTA-DR.  Both agreements fail to specifically include equal pay for equal work for women and men and the elimination of workplace discrimination in the Definitions section for purposes of international dispute resolution.  This leads to textual uncertainty as to whether discrimination on the basis of sex or other grounds is covered.  As a result, gender-related claims in an omnibus petition filed about labor law and administration in Honduras were ignored in a 2015 USDOL report under the CAFTA-DR.  Ironically, comparison of the 2012 Honduras CAFTA-DR case with the 1997 Pregnancy Testing in Mexico case shows that the NAFTA has been a better advocacy tool for working women that the more modern CAFTA-DR.

Definitional shortcomings in post-NAFTA U.S. FTAs are not limited to incomplete incorporation of the 1998 ILO Declaration.  After 2000, U.S. FTA labor provisions limit the definition of “labor law” as applied to the United States to laws passed by the U.S. Congress.  This definition excludes all U.S. state labor laws, which cover compensation for workplace injuries, govern the time and manner of payment of wages, and guarantee trade union rights to state and local government employees.  My article shows how two 2012 reports released by the Government of Mexico about U.S. failure to comply with NAFTA labor obligations may have played a role in the U.S. decision to narrow the scope of the definition of U.S. labor law in FTAs.

In contrast, there is no such textual or definitional uncertainty in the labor provisions in post-NAFTA Canadian FTAs, which explicitly cover workplace discrimination and equal pay for women and men – as well as compensation for workplace injuries.  Canada currently has FTAs with labor provisions with Chile, Costa Rica, Peru, Colombia, Jordan, Panama, Honduras, South Korea and the European Union.  Canada also has Labor Cooperation MOUs with Brazil, Argentina and China.

The article shows how women’s rights advocates have creatively utilized FTA labor provisions as advocacy tools with mixed results  The most successful gender petitions focus solely on gender discrimination rather than burying gender claims in broader petitions.  Because of definitional shortcomings in U.S. FTAs, however, women’s rights advocates should consider filing labor petitions under Canadian FTAs in addition to or rather than U.S. FTAs.  Not only are the definitional provisions stronger, the petition procedures are very similar and Canada has stronger Equal Pay laws and culture.

Recently, Canada established itself as a leader on women’s issues by advocating for a gender chapter in the 2017 re-negotiation of NAFTA.  Mexico expressed support for the idea of a gender chapter, but observers opine that the U.S. would never agree to binding gender-related provisions in a renegotiated NAFTA – despite the fact that a non-binding 2012 U.S.-Mexico Memorandum of Understanding on Women’s Economic Empowerment is already in place.

As Mark Aspinwall rightfully pointed out in his August 2017 Forbes Op Ed, effective application of FTA labor and environmental provisions is heavily dependent on political will.  Even with strong political will backed by critical human and financial resources, the Obama administration’s free trade and labor agenda had some mis-steps and imperfect outcomes.  There is much work to be done to maintain the gains and momentum achieved.  Unfortunately, the current administration is already off to a bad start.  Congress has already called upon the Trump administration to ensure that U.S. trade partners Colombia, Dominican Republic, Guatemala, Honduras and Peru fulfill their commitments under ongoing labor action plans related to petitions filed under FTA labor provisions.  In addition to a lack of political will to address labor violations among trading partners, the current administration has not allocated sufficient human and financial resources to USDOL’s Bureau of International Labor Affairs to properly perform its duties.  In their September 19, 2017 letter to Trump adminstration officials, ranking Democratic members of the House and Senate called on USTR, USDOL and USDoS to fill five positions key to enforcement of FTA labor provisions.  Lack of political will and inadequate resource allocation risks slowing or stopping the evolution made by the last administration in the enforcement and application of labor provisions in free trade agreements.