Report from Chicago: Americans Take to the Streets for Human Rights

By Julienne Grant

20170121_101055I’m writing this not only because I’m inspired, but also so our FCIL colleagues abroad can get a first – hand account of what Americans accomplished on Saturday.  This morning I set out for what I expected to be a local march in Chicago, perhaps 20,000 people rallying for women’s rights.  What I encountered instead, was a massive turnout of over 250,000 citizens – of every age, race, sexual orientation, and religion – taking to the streets for a demonstration of unity.  There were babies in strollers, Muslims, transgender people, Jews, senior citizens, African-Americans, teachers, suburbanites and urbanites, immigrants, artists, and men and women from every neighborhood, every collar county, and even some contiguous states.  These were citizens who were angry and wanted to be heard.

The messages they carried were compelling and forceful – some humorous, some even poetic.  There were signs in French, Spanish, English, and Arabic.  There were large signs and small ones – some visually stunning, while others were simple, in handwritten scrawl.  All, however, were powerful –  clear, thoughtful, and direct. Some content cannot be repeated here, but I mention these as a representation of what was on people’s minds: “women’s rights are human rights,” “we are the noisy majority,” “hope not hate,” “the most important word in a democracy is we,” “men of quality don’t fear equality,” and, possibly my personal favorite, “it takes a village to raze a village idiot.” This was not just about women;  it was broader than that. It was about human rights, and it was about the fear of a new government that doesn’t recognize them (i.e., that just doesn’t get it).

This gathering20170121_110721 of some quarter of a million vocal people, however, was amazingly peaceful and polite, and for just a few hours in a city that is marred by violence, there was kindness and compassion. There was a bond between strangers, and it felt hopeful and good. Even the oft-maligned Chicago cops who were there to maintain order were digging it; there was no profiling and no use of force.  Above our heads in the clogged downtown streets, the el trains slowed down; the drivers pumped their fists, and the passengers waved and nodded their approval.  It was empowering and energizing, and it was an outlet for all who felt marginalized and unheard.

My phone was pinging with texts and pictures from everywhere in the country–from a cousin who was marching in Boston, from a friend at a rally in a small town in Oregon, and word spread through the crowd about Washington, Denver, New York, and Los Angeles; millions of Americans were out in droves. There was strength in numbers, and for anyone abroad who thinks Americans are complacent, this should prove them wrong.  I’m encouraged, I’m proud, and I’m hopeful.

Book Review: Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters

By: Xiaomeng (“Alex”) ZhangIndigenous Peoples

Brendan Tobin. Indigenous Peoples, Customary Law and Human Rights – Why Living Law Matters (Routledge, 2014). 302 p. Hardcover $145.00.

Brendan Tobin, a research fellow at Griffith University Law School with significant experience in the areas of environmental law, customary law, and global human rights law, makes a highly valuable contribution to the area of customary law and the rights of Indigenous Peoples through this well-written and thoroughly researched monograph.  The book not only provides insights to theoretical research but also offers practical guidance to both legal and non-legal professionals working in the area of human rights, environmental justice, and indigenous peoples’ rights.

Tobin’s principal purpose, through this book, is to “demonstrate the importance, legitimacy and durability of Indigenous Peoples’ legal regimes, their rights to regulate their internal affairs in accordance with their own laws, customs, and traditions, and the central role that customary law has to play in securing the realization of their human rights.”  Tobin starts with the premise that Indigenous Peoples’ rights of self-determination and autonomy are important and that customary legal regimes exist to protect those rights.  He also draws a large amount of empirical evidence showing the dire consequences of not recognizing “customary law and indigenous jurisdiction.”

Despite being recognized by many binding international legal instruments and some domestic legal tools, Indigenous Peoples’ rights are not effectively protected.  Tobin argues that neither the States nor legal professionals (such as Judges) fully appreciate the importance of customary law, a core component of most (if not all) Indigenous legal systems. As a result, many of customary legal principles are not given equal consideration as positive law during the dispute settlement and/or litigation process.

The problem that Tobin tries to resolve is a long-standing issue. There are many discussions on the (in)effectiveness of Indigenous Peoples’ rights protection.[1] There are many barriers that prevent effective protection of rights politically, economically, culturally, psychologically and judicially. Effective protection not only depends on recognizing the rights protected by legal instruments such as ratified international agreements, constitutions, statutes and case law, but also relies on implementation and enforcement of these legal instruments. Two major barriers to effective enforcement of customary law are due to the nature of custom and the nature of indigenous rights. The author is able to focus on both areas and make a thorough examination on both issues.

To sum up, there are three major contributions of this book. First, Tobin provides thorough analyses of the issues of ineffective protection of Indigenous Peoples’ rights and of ineffective implementation of customary law in indigenous legal regimes, drawing on a large amount of empirical data and major well-established theories in the area. Second, Tobin, in the second half of the book, closely examines the current (in)effective implementation of customary law in many practical areas, such as rights to land, right to culture, natural resources and traditional knowledge. Finally, Tobin also provides extensive footnotes and a comprehensive bibliography that would benefit other researchers in this area. Therefore, I would highly recommend this book to academic researchers and practitioners interested or working in the relevant fields. I also recommend this book to libraries of academic institutions, organizations and government agencies working closely with indigenous peoples.

[1] For example, see Jeremie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational Publishers, 2006).

Book Review: Statelessness: The Enigma of an International Community

By: Taryn MarksStatelessness

William E. Conklin. Statelessness: The Enigma of an International Community (Hart Publishing, 2014). 366 p. Hardcover $120.00.

Statelessness is an enigma, William Conklin writes, due to an assumption and a claim. The international community assumes that all persons are members of that community through the state of which they are a national. The international community claims that it provides protection for all members. The enigma arises because millions of persons are stateless, are not nationals of any state and thus are excluded from the international community, leaving them unprotected.

For those interested in the history of statelessness and in a thorough explanation of how and why the international community has created (or simply allowed to exist) such a large, unprotected population, Conklin’s book will be well received. Conklin’s passion for the subject is clear and his points are well-supported. However, for those hoping Conklin will present a definitive (or even a pie-in-the-sky) answer to the question of how to solve this enigma, the book may leave you frustrated.

Statelessness begins by explaining that the international community has two discourses. In the first discourse, the international community exists as the aggregate will of the states, the traditional definition of the international community. Under this view, the state is the primary actor and member of the international community; most importantly, the states always maintain independent power over domestic affairs, what Conklin call the “boundary of the reserved domain”—the boundary of power that the international community cannot touch. In the second discourse, Conklin’s implicitly preferred view, there is the international community as a whole. In the international community as a whole, the individual person is the actor and can access that community without state intervention. According to Conklin, statelessness is inevitable when the world is viewed as the aggregate will of the states because the ultimate decision as to whether to recognize the nationality of a person will always reside with the executive branch of a state. Under the international community as a whole, however, the person’s social and cultural bonds determine nationality.

Statelessness focuses on the status of those persons who, for whatever reason, no longer have a state in which they may legally live. Conklin focuses the first part of the book on the concept of statelessness, explaining how statelessness developed under the aggregate will of the states before discussing the consequences of statelessness and the reasons why statelessness has not been protected as a human right. Conklin provides numerous, often moving examples of those who are stateless: refugees from ISIS living in camps in Turkey, those who live in Palestine, nationals of the former USSR. The sources he uses are wide and varied, including international treaties, General Assembly documents, and fundamental sources of international law (such as jus cogens) to document and explain this enigma. He also pulls in sovereign and international court decisions from a variety of sources. But the strength of his analysis is significantly diminished by the repetitiveness of the first half of the book.

One almost forgets the repetitiveness of the first half of the book, however, when you reach the end of the book. In the last chapters, Conklin’s clear passion for those who have been rendered stateless stands out, and the book becomes much less repetitive. Conklin focuses on defining the social and cultural bonds that should exist between a person and her “state,” before shifting to his main question, whether the traditional sources of international law can be used to obligate states to protect a stateless person, regardless of the will of the state. Drawing a parallel to international criminal law, particularly to the ad hoc tribunals that were set up after Rwanda and Yugoslavia, Conklin argues that, like international criminal law, protecting stateless persons is implicit in international treaties. When an executive arbitrarily expels or refuses to grant a person nationality and when statelessness is recognized as a basic human right that is self-executing, the boundary of the reserved domain can be pierced. Being able to penetrate a state executive’s decisions means that the shift from an aggregate will of the states to the international community as a whole has started. That, it seems, is one of Conklin’s points: that statelessness arose because of the aggregate will of the states discourse, and that it is a good thing that the shift to the international community as a whole has begun.

Film Review: Invoking Justice

c834By Susan Gualtier

In my spring 2014 FCIL research seminar, I explored the idea of using documentaries to provide a visual representation of unfamiliar legal systems. One of the films that I chose to screen was Deepa Dhanraj’s 2011 documentary, Invoking Justice. The film was very well received by the students and led to several interesting group discussions, both during class time and on the course website. Student feedback strongly suggested that they found the film enjoyable, that it helped them to understand how religious (and, to an extent, customary and mixed) legal systems work, and that it encouraged them to think about how one might research legal issues or handle cases arising under these systems.

Invoking Justice focuses on a specific type of legal tribunal in Southern India, where family disputes are settled by local tribunals called Jamaats. These tribunals, which apply Islamic Sharia law, are made up entirely of men. Not only are their cases decided by men, but women are not permitted to be present at the Jamaat meetings and therefore have no opportunity to defend themselves or to present their side of the dispute. Invoking Justice follows a group of women who, recognizing the discriminatory nature of the all-male Jamaats, formed a women’s Jamaat in 2004 where local women could settle their family disputes or report discriminatory treatment by the traditional male Jamaats. By the time the film was made, the women’s Jamaat had already settled more than 8000 cases, “ranging from divorce to wife beating to brutal murders and more.”

The film suggests, though not overtly, that the women’s Jamaat functions not only as a tribunal, but also as an enforcement mechanism and advocacy organization. Its members are shown approaching male Jamaat members to questions their tribunals’ decisions and processes, and using the police force to compel male defendants to attend women’s Jamaat sessions when they do not take the tribunal seriously. Dhanraj follows several of the Jamaat’s cases from beginning to end, which helps to unify the film and provides a narrative element. The film also portrays the power that comes with open communication; the women’s Jamaat has been a galvanizing force for women in the region, and groups of women are shown in animated discussions of topics that would previously have been considered taboo in a public forum.

Invoking Justice is entertaining and visually appealing, and provides an excellent insight into how one form of local tribunal might operate. It also illuminates substantive issues relating to family law and women’s human rights under religious and customary law systems, and addresses issues of discrimination not only in the law itself, but in the procedural practices of the tribunals, the application of the law, and the enforcement of the tribunals’ judgments. Because there is no prerequisite to my FCIL research seminar, I have found that, by necessity, it must serve as a crash course in international law and world legal systems in addition to developing the students’ research skills. Having searched for a film that would entertain the students while at the same time illustrating the issues surrounding religious law, customary law, and informal tribunals, I found that Invoking Justice was an excellent choice. Invoking Justice is distributed by Women Make Movies and can be purchased from their website. My study guide for the film is available online through SlideShare.

Inter-American Court of Human Rights Database Now Available

By Laura Cadra

The Inter-American Court of Human Rights (IACHR) Project of the Loyola of Los Angeles International and Comparative Law Review has released its Inter-American Court of Human Rights Database. This freely-available database, produced by the editors and staff of the IACHR Project under the supervision of Professor Cesare Romano, allows users to search Inter-American Court decisions by case name, country, and topic. Advanced search features include the ability to search by specific violation of various Inter-American Conventions.

Search results include a brief description of the case, information on judges, and violations found by the Inter-American Court. When available, the database includes a link to a detailed case summary which includes case facts, procedural history, merits, and state compliance with the Inter-American Court’s judgment. To date, 74 detailed case summaries are available.

The database can be accessed at http://iachr.lls.edu/database. The IACHR Project welcomes comments and suggestions and can be reached at iachrproject@lls.edu.

Book Review: The Twilight of Human Rights Law, by Eric Posner

By: Yasmin Morais

twilight coverPosner, Eric A. The Twilight of Human Rights Law. (Oxford University Press, 2014). 176 p. Hardcover $21.95.

“Human rights law has failed to accomplish its objectives. More precisely, there is little evidence that human rights treaties, on the whole, have improved the well-being of people, or even resulted in respect for the rights in those treaties.” So argues Eric A. Posner in his Introduction to The Twilight of Human Rights Law. The fourteenth book in the Inalienable Rights series, published by Oxford University Press, The Twilight of Human Rights Law offers candid explanations for limited progress on human rights. Posner’s central argument is that human rights law is grounded in a view that the good in every country can be broken down to a set of rules that are capable of being enforced in an impartial way. He terms this “rule naiveté”, which he considers partly responsible for the proliferation of human rights, making meaningful enforcement impossible.

Posner presents in chapter one a thorough overview of the history and development of international human rights law. He highlights, in particular, the United States’ and other Western European governments’ resort to torture in the aftermath of September 11th, noting this a challenge to the human rights regime. The role played by NGOs in advocating human rights is also acknowledged.

Chapter two provides keen analysis of key institutions of human rights, and examines their effectiveness in ensuring states’ compliance with treaty obligations. One constraint highlighted was the weakness of the United Nations Human Rights Committees, which lack the power to sanction or issue legally binding judgments.  The European Court of Human Rights (ECHR) and its limitations are also explored. Despite its jurisdiction over approximately 800 million people, the ECHR is unable to strike down domestic laws, which in Posner’s view, limits the effect of each of its decisions. However, while Posner does mention the success of the ECHR with cases such as Hirst v. United Kingdom, the book could have benefitted from more discussion on the impact of Convention rights on English Law, particularly since the entry into force of the Human Rights Act (HRA) 1998.

Over the next three chapters, Posner explores why states enter into human rights treaties and reviews the rates of compliance and the factors accounting for their compliance. He raises important points about the relationship between a country’s level of development and its record of compliance, and the competing needs with which developing states must grapple. For example, “a law that provides greater health services to women…might result in fewer funds for schools, so that the net effect of the law is to improve compliance with CEDAW but reduce compliance with ICESR” (p.72). Another salient point is the challenge of conducting research on states’ compliance, given limited data and the methodological difficulties involved.

Posner reflects in chapter six on whether human rights law serves to discourage states from engaging in warfare. On a pessimistic note, he recounts a number of conflicts, many of which were initiated as a result of human rights violations. He also compares conflicts among authoritarian, quasi-authoritarian and democratic states, noting that “democracies are quite warlike-with non-democracies rather than with each other. Thus, respect for human rights in democracies does not lead to a generalized pacifism or aversion to war, or even to a preference (relative to authoritarian countries) for resolving conflicts using peaceful means.” (p.126).

In concluding, Posner admits successes, but he lays bare the overall systemic shortcomings and the unique challenges of various states. However, he suggests there is hope in a “fresh start” and a humbler approach on the part of Western nations. While the inclusion of a table of cases would have enhanced the book, it is nevertheless replete with data, including an extensive List of Rights (Appendix) and a bibliography. The Twilight of Human Rights Law is an important assessment of human rights law, useful for human rights scholars in general, persons interested in European Union law or anyone who desires a current analysis of human rights law. It can be read in tandem with Christian Tomuschat’s Human Rights: Between Idealism and Realism, 3rd ed. (2014), also by Oxford University Press.

IALL Program Recap: The Struggle for Human Rights in Argentina

By Jim Hart

This presentation described how individual Argentinians and international organizations worked together to expose the dictators’ crimes against humanity. Essentially, individuals made the international organizations aware of specific crimes. The international organizations then made them public, thus harnessing the power of shame and public opinion outside of Argentina. Cases were brought in international human rights courts and tribunals. Those inside Argentina were then able to bring pressure in the domestic courts and Congress. Eventually, Argentina gave international human rights treaties constitutional status.

Just as developed countries once practiced slavery and then rejected it, perhaps they have now rejected the practice of crimes against humanity.

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