The Protection of Women's Rights: Power, Equality, and the MDGs

The news on violence against women, women and poverty, maternal mortality, and gender gaps in education can be disheartening. Prospects for the equality and empowerment of women and the protection of their human rights can seem further away than ever. That's why it's necessary to pause occasionally to assess where we've been and to strategize on how to build the necessary political will for future action.
During UN Week, I participated in a conference on “The Protection of Women’s Rights” sponsored by the Italian Cultural Institute of New York.
It was an energizing gathering, reflecting both serious challenges and exciting possibilities ahead in making the phrase “women’s rights are human rights” a reality, not just an inspiring slogan.
The meeting, co-sponsored by the Italian Ministry of Foreign Affairs, the Ministry for Equal Opportunities, the Permanent Mission to the United Nations, and the Consulate General in New York, was also aimed at highlighting the contributions of Italians and Italian-Americans to women’s rights internationally.
Held the same week as the UN Summit on the Millennium Development Goals , a 10 year review of the mixed progress toward ending poverty by 2015, the event brought together a diverse group of participants. The leading diplomats, judges, scholars, advocates, and political leaders there discussed a wide range of issues and empowerment strategies. Rachel N. Mayanja, Special Adviser to the Secretary-General of the UN on Gender Issues (photo, left) was among the distinguished speakers.
As IntLawGrrls Stephanie Farrior and Fiona de Londras discussed here, there has been increasing international focus on the status of women, but further progress remains to be seen. The UN has just launched an Entity for Gender Equality and the Empowerment of Women (UN Women), and appointed former Chilean President Michelle Bachelet to head the new body.
Key Themes
Several themes surfaced in the presentations:
►Women’s Access to Power (political, economic, and social), including Vice-President of the Italian Senate Emma Bonino’s stirring call for women to exercise their own agency on this front)) (photo, right);
►Women’s Access to Justice (including informative talks by Flavia Lattanzi, Judge of the International Criminal Tribunal for the Former Yugoslavia (photo, below left), and Antonio Baldassarre, President Emeritus of the Constitutional Court of Italy);
►Violence Against Women and Traditional Practices (several representatives from sponsors of a High-Level Meeting on the International Campaign for a UN General Assembly Resolution Banning FGM held earlier in the week attended the conference): (See IntLawGrrls posts on FGM here and my entry on “Female Genital Mutilation and Female Genital Cutting” in 2 Encyclopedia of Human Rights 200-213, David P. Forsythe, et al, eds., Oxford University Press (2009) here);
►Transnational Migration and the Global Economy (including talks on the daunting challenges facing women refugees and asylum-seekers by Susan Akram, Clinical Professor of Law, Boston University School of Law, and on the economic, social, and cultural rights of migrant domestic workers by yours truly, IntLawGrrl Hope Lewis);
►The “Locations” of Women’s Rights (including a thought-provoking presentation by Suzanne Goldberg, Clinical Professor of Law and Director, Center for Gender and Sexuality, Columbia University School of Law, on the implications of the varied identities of women and the different positions from which they speak);
►Women and Peace (including a review and critical analysis of developments since the adoption of UN Security Council Resolution 1325 (Women, Peace, and Security) by Sanam Naraghi Anderlini, Research Affiliate, Center for International Studies, Massachusetts Institute of Technology);
►Regional Approaches to Women’s Rights (including encouraging presentations by Inter-American Human Rights Commissioner Dinah Shelton, Manatt/Ahn Professor of International Law, George Washington University School of Law, and on other regional systems by Angela del Vecchio, Director of the Master in L.A.W.S. (Legal Advanced World Studies), Luiss Guido Carli University Professor, Law Faculty, LUISS University, Rome (delivered by transboundary water issues expert Mara Tignino, Ph.D., Senior Researcher, Faculty of Law, University of Geneva, in her absence).
The Full Program
Welcome and Introduction
Riccardo Viale, Director of the Italian Cultural Institute, New York
Mara Carfagna, Minister for Equal Opportunities of Italy
Session I
Chair: Antonio Baldassarre, President emeritus of the Constitutional Court of Italy
Emma Bonino, Vice-president of the Senate of Italy, cofounder of No Peace Without Justice, "A worldwide ban on female genital mutilation: ending a violation of the human rights of women and girls"
Flavia Lattanzi, Judge of the International Criminal Tribunal for the former Yugoslavia, “Women`s rights in international criminal tribunals”
Sanam Naraghi Anderlini, Massachussetts Institute of Technology, “UNSC Resolution No. 1325 on women, peace and
security”
Suzanne Goldberg, Columbia University, “Women’s rights: issues for the next decades”
Susan Akram, Boston University School of Law, “The failure of protection of women and girls under the international refugee regime”
Session II
Chair: Suzanne Goldberg, Columbia University
Antonio Baldassarre, President emeritus of the Constitutional Court of Italy, "Constitution and Gender"
Hope Lewis, Professor of Law, Northeastern University, Boston, "Economic, social and cultural aspects of women's rights protection”
Rachel N. Mayanja, Assistant Secretary-General and Special Adviser to the Secretary-General of the UN on Gender Issues, “Safeguarding women’s rights: the United Nations role – past, present and future”
Dinah Shelton, Inter-American Commission on Human Rights, Manatt/Ahn Professor of International Law, George Washington University,"Protection of women's rights and the interamerican commission on human
rights"
Angela del Vecchio, LUISS University, Rome,"The protection of women in the international regional conventions on human rights” (delivered by Mara Tignino, Senior Researcher, Faculty of Law, University of Geneva)
Federiga Bindi, Italian National School of Public Administration, Rome, “Women leadership training as a way to fill the gender gap”
Concluding Remarks
Franco Frattini, Minister of Foreign Affairs of Italy,
Congratulations and heartfelt thanks to the Italian Cultural Institute, its staff, and interns for hosting such a substantive meeting on the advancement of women and girls.

Deference to Error?

How many serious errors must an agency make before the deferential standard of review accorded its decisions is revisited? That's the question that came to mind reading yesterday's excellent asylum decision by the Second Circuit. In Kone v. Holder, the court found that the Board of Immigration Appeals' decision (adopting and affirming the immigration judge's opinion) doubly erred, making mistakes both in its application of the law and its findings of fact. Ms. Kone, a national of Cote d'Ivoire, suffered female genital mutilation in her home country and feared that her two U.S. citizen daughters would be subject to the same treatment if she were to be sent back. She was also persecuted for her race, religion, and political opinion.
Even applying the highly deferential standards of review applicable in the immigration field (substantial deference to the agency's interpretation of its own regulation and substantial evidence for the agency's findings of fact), the Second Circuit found that the agency made serious mistakes in Ms. Kone's case. First, the immigration judge failed to shift the burden of proof to the government, as its own regulations require when an asylum applicant proves that they suffered persecution in the past. Notably, the court cites its own precedent for the point that where a woman has already undergone female genital mutilation, this does not lead automatically to the conclusion that no possibility of future persecution exists. Apart from the reality that a woman might be subject to further mutilation, there is no requirement in asylum law that threats must take the same form or be the same act as past persecution. The concept is simple -- if an asylum applicant's arm had been chopped off by government agents who opposed his political opinion, nobody would argue that he'd already lost his arm so wouldn't risk being persecuted again upon his return -- yet somehow judges find it difficult to grasp that a woman who has suffered female genital mutilation might face other forms of persecution, such as rape, based on her gender and ethnicity.
After describing the second error made by the immigration judge (a fundamental factual mistake), the court suggests that Kone might be eligible for asylum on two additional grounds. First, the mutilation she suffered might rise to the level of severe past persecution, which can on its own be grounds for asylum regardless of the risk of future persecution. Second, even if Kone's experience of FGM does not meet this higher standard, it might be sufficient to show past harm in the form of mutilation combined with the "mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child." With stakes this high, and errors this grave, how is it that such great deference is still accorded to these administrative adjudicators?

Look On! "Mrs. Goundo's Daughter"

(Look On! takes occasional note of noteworthy films.) "Mrs. Goundo’s Daughter,” a new documentary by Barbara Attie and Janet Goldwater, is a sensitive and galvanizing account of gender discrimination at the intersection of culture and bureaucracy. (View a clip here.)
The filmmakers follow a mother’s struggle to keep her family from being deported to Mali. The documentary focuses on the serious harm caused by female genital mutilation/cutting practices.
I’ve discussed the complexities in a 1995 article, Between Irua and Female Genital Mutilation: Feminist Human Rights Discourse and the Cultural Divide and in a more recent article on “Female Genital Mutilation and Female Genital Cutting” in the Encyclopedia of Human Rights.
Awaken!, an excellent newsletter published by the women’s human rights NGO Equality Now!, tracks developments on the issue in English, French, and Arabic. IntLawGrrls Fiona de Londras and Jaya Ramji-Nogales posted here and here on human rights and gender asylum decisions involving FGM-FGC. This World Health Organisation Bulletin discusses some grassroots eradication efforts in Mali.
FGM-FGC practices violate international human rights norms and are prohibited under instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the African Charter on Human and Peoples Rights, and the Maputo Protocol.
The practices cause serious physical injury and death to infants, girls, and women in practicing regions. Yet because FGM-FGC is deeply rooted in community and family traditions (but not required by any formal religion), the practices remain widespread among some ethnic groups. Many countries now outlaw the practices. But the private circumstances under which they occur mean that indigenous community-based education and organizing are important keys to ending FGM-FGC. (On legal and political approaches, see Anika Rahman & Nahid Toubia, Female Genital Mutilation: A Practical Guide to Worldwide Laws and Policies.)
In the film, Mrs. Goundo, who experienced FGM-FGC as a girl, works with an immigrant community leader in Philadelphia, an asylum lawyer, and her husband to prevent her own daughter from returning to Mali. Goundo understands that even if she and her husband object, grandparents, relatives, or other community members might well force the practice on the child.
But there’s another problem. Mrs. Goundo must request legal status for herself under the byzantine U.S. immigration and asylum laws, or else be separated from her U.S.-born daughter and other family members.
Attie and Goldwater provide a nuanced treatment of her predicament. They place Mrs. Goundo and her family in the context of a supportive immigrant community and explore the challenges of navigating the U.S. legal system successfully. They also travel to Mali, where they interview local women’s rights and health advocates who condemn and educate against the practices. They also surface the stereotypes and misinformation that lead some religious and cultural leaders to support them despite the awful consequences.
"Mrs. Goundo's Daughter" is never graphic, but makes the danger and emotional trauma to girls abundantly clear. Students should be prepared in advance with readings on the subject matter and instructors should plan time for discussion after showing the film.
Consultants on the film included leading refugee and gender-asylum expert Deborah Anker and yours truly. The documentary is an effective way to begin discussions about the complex legal, gender, and cultural issues involved. Heartfelt thanks to research assistant Alexis Smith for her help with this post.

On February 9

On this day in ...
... 1934 (75 years ago today) , at Athens, the leaders of Greece, Romania, Turkey, and Yugoslavia entered the Pact of Balkan Entente. The agreement "was formed to guarantee mutually the security of their frontiers and thus was directed largely against Bulgaria."
... 1944 (65 years ago today) , in Eatonton, Georgia, a daughter was born to sharecroppers Willie Lee and Minnie Lou Grant Walker. This eighth and last child of theirs won a scholarship to Spelman College in Atlanta, having earned honors as class valedictorian though blinded in one eye by a shooting accident during her childhood. Alice Walker (left), winner of the Pulitzer Prize for The Color Purple (1982), her epistolary novel, continues to agitate for peace and the rights of women and minorities, and against nuclear weapons and female genital mutilation. IntLawGrrls reviewed 1 of Walker's most recent books here.

Deportees not entitled to effective counsel?

Earlier this month, U.S. Attorney General Michael B. Mukasey certified yet another decision to himself, this one effectively eliminating the right to effective assistance of counsel for people in removal proceedings in immigration court. The decision, Matter of Compean, means that all persons in removal proceedings, including asylum seekers, have no statutory, constitutional or other right to representation or effective representation before being removed from the country.
Immigration professors and advocates are outraged at this latest in a string of decisions by the Attorney General to certify cases to himself -- cases governing issues left dormant or neglected over the course of the last eight years of this administration -- in a rush to make law before the inauguration of the new President this coming Tuesday. Last year, the AG certified to himself Matter of A-T-, dealing with female genital mutilation, in which this author wrote an amicus brief on behalf of 125 medical entities and institutions, and about which IntLawGrrl Jaya Ramji-Nogales posted here.
Concerned immigration advocates call this latest decision another attempt both to destroy the already minimal due process rights of noncitizens in the United States and to further limit the possibility of federal judicial oversight. Challenges to Matter of Compean are already being drafted and filed, but for the time being, this case is law -- and those about to be deported can no longer claim that their attorneys were ineffective in assisting them in court.

Athbhliain fé mhaise dhaoibh!

Athbhliain fé mhaise dhaoibh [or, in English, Happy New Year to you all]. I just thought I’d take this opportunity to point out a few things coming up on this (European) side of the Atlantic in 2009 that’s likely to catch our attention here.
► First of all Ireland will, it appears, get another opportunity vote on the Lisbon Treaty. As many of our readers will know, the Irish electorate voted ‘no’ to the ratification and incorporation of the Treaty last summer. We were the only European Union state to have a referendum on the Treaty and for those who wonder why we did, it’s because EU Treaty Law has supremacy over Constitutional law and, in Ireland, that has been interpreted since the case of Crotty v An Taoiseach (1986) as requiring a constitutional referendum on EU Treaties. Ireland has previously voted twice on an EU Treaty (Treaty of Nice) and ‘Lisbon II’ will be one of the political and legal events of 2009 here. The referendum is expected in 2009.
► The European Court of Human Rights will hear cases relating to abortion rights in Ireland and female genital mutilation/non-refoulement both of which emanate from Ireland. We previously discussed these cases on the blog, and the ECtHR’s decisions are anxiously awaited.
► Thirdly, we expect to see discussions about the placement of released Guantánamo Bay detainees in European states gain even more momentum in the next few months. Strategies for closing the detention centre are quite a hot topic here on IntLawGrrls and the role that European states’ will play in this process will be watched with great interest, particularly given the alleged role some European states (incl. Ireland, I’m afraid) are said to have played in getting people to Guantánamo by collusion in extraordinary rendition.
This is just a taster of the international law stories like to come from Europe over the course of the next 12 months, but as always it seems likely that it will be the unexpected occurrences that will most grab our attention. We look forward to discussing all this and more here on IntLawGrrls.

Female Genital Mutilation before the ECtHR

The European Court of Human Rights (left; photo credit) yesterday asked the Irish Government to stay the deportation of Pamela Izevbekhai and her children until the Court has had an opportunity to hear her Article 3 claim on December 9th (RTE report). This followed a refusal by the (Irish) High Court to grant her leave to appeal a deportation order against her.

Izevbekhai’s first child died as a result of FGM and she claims that there is a real risk of her other two children being subjected to the practice if returned and that, as a result, their deportation would violate Article 3 of the ECHR [right to be free from torture, inhuman and degrading treatment or punishment]. Article 3’s implicit ban on refoulement is absolute, thus if Izevbekhai can convince the ECtHR that FGM meets the threshold of minimum severity to be considered prohibited behaviour and that there is a real risk of her children being the victims of this practice in Nigeria then it appears that the Irish government would be precluded from deporting her.

The approach that the Strasbourg Court will take to this question will be interesting and have important implications for Europe-wide approaches to gender based persecution and asylum claims. Also noteworthy is the fact that this is the third case with an important gender aspect on Article 3 to go before the court this term and we await the judgments with some anticipation. [The other two cases concern domestic violence [discussed here] and the constitutional ban on abortion in Ireland (Irish Times report)].

A better week to be a woman . . .

Amidst the flurry of posts about the Boumediene decision, I wanted to be sure to note a major asylum decision that came down this week. As we've discussed here, last fall, the Board of Immigration Appeals issued the In re: A-T- decision, which found that a woman who had undergone female genital mutilation (FGM) did not have enough of a fear of future persecution to qualify for withholding of removal because the mutilation had already occurred. This week, a three-judge panel, including Rosemary Pooler (pictured at left) and Sonia Sotomayor (pictured at right), issued a decision overturning that rule, at least in the Second Circuit. (We discussed the oral argument in this case here.) Beginning with a lengthy and graphic discussion of FGM and the physical and psychological harm it inflicts on women, the court finds "fairly obvious errors in the agency's application of its own regulatory framework." In other words, the fact that the persecution has already occurred is not sufficient to dismiss a claim of future persecution -- both because FGM can be performed more than once and because these women could be subject to other forms of persecution, including domestic violence. The reasoning is a bit strained, largely because Pooler (who penned the majority opinion) and Sotomayor (explicitly in her concurrence) refuse to reach the question of whether FGM constitutes "continuing persecution." In contrast, Chester Straub's concurring opinion elegantly dismantles the government's claim that it does not. Turns out that sometimes the best Grrl for the job is a man . . .
CORRECTION: The majority opinion was actually penned by Judge Straub, not Judge Pooler. The 2d Circuit opinion hyperlinked above contains this correction.

Lemme get this straight: If they can't do it to you again, no more fear of persecution?

Check out this item from our colleagues at ImmigrationProf Blog, summarizing an Associated Press report of a federal appellate panel's objections to the government's refusal to grant asylum to 3 Guinean women who'd been subjected to genital mutilation. Here's a sampling of last week's argument before the U.S. Court of Appeals for the Second Circuit:

[T]he judges seemed particularly upset at a conclusion by the government that it was fair to return the women to Guinea because they could not suffer further persecution since mutilation had already occurred. At times, all three judges raised their voices or cut off lawyers to make a point. 'Supply me any case in which a well-founded fear of persecution was not sustained because the same leg couldn't be amputated or the same organ removed,' demanded Judge Rosemary Pooler [right].

'Nuff said.