Using Accountability Mechanisms to Change Corporate Practice in Mexico

(We're delighted to welcome back Natalie Bridgeman Fields, Executive Director of Accountability Counsel, who contributes today's guest post...)

Many thanks to IntLawGrrls for the opportunity to contribute a guest post.

On February 21st, construction of the Cerro de Oro Hydropower Project halted in Oaxaca, Mexico.

Accountability Counsel filed a complaint on behalf of three affected communities in November 2010 based on a wide variety of human rights and environmental problems associated with the Project. The communities received no information about the Project, were not consulted, impacts on indigenous groups were not considered, and there were insufficient plans to address and mitigate social and environmental impacts, including destruction of important waterways that communities depend on for household use, consumption and fishing. (The picture at right shows some of the project construction that is destroying the affected communities' creek, Arroyo Sal). The communities also have had problems with land acquisition and the lack of a required, local grievance mechanism to raise their concerns. The community complaints are here and here.

We submitted the complaint to the U.S. federal agency that financed the project, the Overseas Private Investment Corporation (“OPIC”). (The picture below left depcits the indigenous Chinanteco community of Cerro de Oro voting to file a complaint). OPIC invested $60 million in U.S.-based Conduit Capital Partners, LLC, the key Project sponsor. The complaint is the fifth ever filed with the internal OPIC Office of Accountability, which U.S. Congress created in 2005 so that complaints like this one can be addressed in a fair and objective manner. The complaint seeks the Office’s assistance with resolving community concerns about the project through the problem-solving function, and seeks to hold OPIC accountable for its failures to uphold its own policies through the compliance function.

Before the Office of Accountability even initiated its problem-solving role, based on the information in our complaint to the OPIC Office of Accountability, members of the Oaxacan State Congress launched an investigation into the Project. Their Commission convened a meeting last Thursday, February 17th, where the company, communities, and governmental officials all presented their views. At the meeting, the communities demanded suspension of the Project by Monday, February 21st, and the Congressional Commission supported the community demand. The company, wisely realizing that continued construction was exacerbating the situation, called me on Friday to announce at least temporary suspension of work.

Now, with construction of the Project suspended, the communities and the company will be able to return to the OPIC Office of Accountability process to begin dialogue. We hope that this largely untested accountability mechanism will have a constructive role in the process. The complex dynamics at work here have created at least a temporary victory for the communities who were, until today, watching chemicals used in construction enter their drinking water and their livelihoods eroded. We hope the communities and company can reach a negotiated solution soon so that we can return to the portion of the complaint focused on OPIC itself – a U.S. federal agency that financed a project in vast non-compliance with OPIC’s own policies and procedures meant to protect people and the environment.

Accountability Counsel, a legal non-profit founded in San Francisco in 2009, aims to defend the environmental and human rights of communities around the world by creating, strengthening, and using accountability systems. In particular, we specialize in non-judicial grievance procedures related to international finance and development. We accomplish our mission by:

1. raising awareness and providing legal support to facilitate community complaints to accountability mechanisms, and
2. providing expert policy advice to advocate for new avenues of redress, and for reforms so that existing mechanisms are accessible, robust, and effective tools for justice.
   

Declaration on the Rights of Indigenous Peoples

Many thanks to our friend and colleague Rita Maran (left), a lecturer on Human Rights at U.C. Berkeley and president of the United Nations Association-USA East Bay Chapter, for bringing to our attention a recent development in indigenous rights. (Long-time readers will recall we celebrated Rita's birthday a few years back with a poem...). Rita writes:

The United States recently "lend[ed] its support" to the Declaration on the Rights of Indigenous Peoples (DRIP). The US had not voted for the Declaration when the General Assembly adopted it in 2007. Canada, Australia, and New Zealand also did not vote Yes at that time, but all three states have since endorsed the Declaration; the US is the latest and last. It must be remembered that the Declaration is not a treaty, and is therefore not legally binding. President Obama announced this "change of position," attributing it in part to Native Americans' persuasion and perseverance on the issue.
President Obama told the White House Tribal Nations Conference in December 2010:

But I want to be clear: What matters far more than words -- what matters far more than any resolution or declaration -- are actions to match those words. That's the standard I expect my administration to be held to.

For complete details: Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples" Statement by U.S. Government December 2010.

On December 29

On this day in ...
.... 1890 (120 years ago today), in South Dakota, U.S. cavalry troops entered an encampment of Lakota Sioux. A shot was fired and a gunfight ensued. When the Wounded Knee Massacre was over, more than 150 Lakota children, women, and men were dead -- indeed, the actual death toll may have been twice that; another 47 children and women, plus 4 men, were wounded. (credit for 2003 photo of tombstone marking mass grave, on Pine Ridge reservation) U.S.military casualties: 25 dead, 39 wounded. Eyewitness accounts may be found here.

(Prior December 29 posts are here, here, and here.)

In passing: Ellen L. Lutz

Ellen L. Lutz, an international human rights lawyer, teacher, and activist, died this past Thursday, November 4, at her home in Cambridge, Massachusetts. The cause was metastatic breast cancer. She was 55.
During her final two years battling the disease, Ellen (near right) directed the Cambridge-based human rights organization Cultural Survival, co-edited two pioneering books (Prosecuting Heads of State, (Cambridge U. Press) and Human Rights and Conflict Management in Context (Syracuse U. Press), submitted formal reviews on state behavior to the UN Human Rights Council, led international litigation on behalf of Panama’s threatened Nobe Indians, and sang alto with the Harvard-Radcliffe Chorus. She did each with equal enthusiasm and skill.
Her concern for human rights began when, as a 15-year-old exchange student to Uruguay, she witnessed the onset of Uruguay’s state sponsored “Dirty War,” and supported the international human rights movements such actions spawned across Latin American during the 1970s. After graduating Summa Cum Laude from Temple University (1976) and obtaining a Master’s Degree in Anthropology from Bryn Mawr (1978), Ellen took a Law Degree in International Law and Human Rights from Boalt Hall Law School (University of California at Berkeley) in 1985.
Ellen’s persistent interest in Latin America continued as professional work with Amnesty International (1979-81), in Washington, D.C., and in San Francisco.
She later headed the California office of Human Rights Watch (1989-94), where she conducted research and published on little-known but extensive human rights abuses in Mexico, and she was co-counsel in two groundbreaking human rights cases in U.S. courts, against the infamous Philippine dictator Ferdinand Marcos and Argentine General Suarez-Mason.
Moving with her family to Westborough, Massachusetts, in 1994, she helped to set up and then served as Executive Director of the Center for Human Rights and Conflict Resolution at the Fletcher School of Law and Diplomacy at Tufts University, taught international law. human rights, and mediation at Tufts, Harvard and the University of Massachusetts, and wrote widely. One of her students, now a professor at Occidental College, recalled how

warm and desirous she was of connecting to students amid the formal Fletcher iciness, a marvelous force of nature.

Ellen was asked to become Executive Director of Cultural Survival in 2004, where she increased the participation of indigenous people on the Board of Directors and Program Council, while steering the organization away from local development projects to broad human rights initiatives. Ellen said:

Development work like building schools, digging wells, and providing services is what governments should be doing. Our work is to make sure governments live up to their obligations.

One of her colleagues wrote,

It would be difficult to quantify Ellen’s ferocious passion for justice. Her zeal and natural warm-heartedness combined with a legal rigor that made her a truly formidable advocate.

There was much of such personal and professional praise. But, perhaps the most encompassing and, for Ellen, meaningful compliment came from Stella Tamang, a Nepalese tribal leader and friend:

To Ellen, my Kalyana Mitra,
In Buddhism Kalyana means Wellbeing and Mitra means friend. Kalyana Mitra therefore means friends who always think about their wellbeing. You have been such wonderful friend, a constant support during the problems I was facing about the political problem back in Nepal. We also talked about family, our children, and life. I am blessed to have a friend like you. We believe that if a person has done good Karma, he or she gets to meet with wonderful people, and you are the one for me...

And Ellen was not a Buddhist. Ellen is survived by her husband, Theodore Macdonald, an anthropologist previously with Cultural Survival and now with Harvard University, and her two children from a previous marriage, David and Julia Randall, now studying at the University of Massachusetts and Harvard, respectively. Her cat, Misty, and dog, Churi, are well taken care of. Her friends, among them many women human rights lawyers, are grateful to her for her wise counsel and unflagging dignity. All are thankful to their Kalyana Mitra.

On October 13

On this day in ...
... 1862, Mary Henrietta Kingsley (top left) was born in Islington, England. She received no formal education but was taught German by her father, a traveler and writer, because it then was the language of medical research. Kingsley taught herself from the many books in her father's library. At age 29 her parents died within weeks of each other; thereafter what had been a vicarious life of travel became a real one. Kingsley ventured out in 1893, "[d]ressed in a stiff black skirt and blouse, with high buttoned shoes and a perky hat." She explained her choice of clothing thusly:

'You have no right to go about Africa in things you would be ashamed to be seen in at home.'

Kingsley would make a number of journeys to West and Central Africa, bring back to England new animals, and write books that increased English knowledge of the continent to Europe's south -- and unlike missionaries of the time, she defended indigenous practices, such as polygamy. Among her bestsellers was Travels in West Africa (1897). Kingsley died of enteric fever in 1900, while serving as a nurse in the Boer War in South Africa.

(Prior October 13 posts are here, here, and here.)

International Day of Indigenous People

Today, August 9th, is the 16th annual International Day of the World's Indigenous People. This day was first declared by United Nations General Assembly Resolution 49/214. (prior IntLawGrrls post) The date marks the day of the first meeting, in 1982, of the UN Working Group on Indigenous Populations of the Subcommission on the Promotion and Protection of Human Rights.
Here is what Secretary General Ban Ki-Moon had to say about this year's celebration:

Indigenous peoples still experience racism, poor health and disproportionate poverty. In many societies, their languages, religions and cultural traditions are stigmatised and shunned. The first-ever UN report on the State of the World’s Indigenous Peoples in January 2010 set out some alarming statistics. In some countries, indigenous peoples are 600 times more likely to contract tuberculosis than the general population. In others, an
indigenous child can expect to die twenty years before his or her non-indigenous compatriots.
The theme of this year’s Day of the World’s Indigenous Peoples is indigenous filmmakers, who give us windows into their communities, cultures and history. Their work connects us to belief systems and philosophies; it captures both the daily life and the spirit of indigenous communities. As we celebrate these contributions, I call on Governments and civil society to fulfill their commitment to advancing the status of indigenous peoples everywhere.

The photos in this blog post are all of Carrie Dann. She is one of the most inspiring women I have ever met, and an indigenous leader who has been fighting for the rights of the Western Shoshone for decades.

Human Rights & Business: Beyond Corporate Social Responsibility

(Delighted to welcome back alumna Nadia Bernaz, who contributes this guest post)

With BP making the headlines with the industrial disaster in the Gulf of Mexico (prior IntLawGrrls posts), many have been asking the question of how and whether giant corporations can be made accountable for their actions.
The fact is that a combination common in the Western world -- tighter laws governing pollution and higher standards -- has not worked. Rather, it has often meant that multinational corporations, which no longer have to respect national boundaries, move elsewhere, where standards are lax and land and labour is cheap.
The growing movement for volunteerism among corporate entities based on corporate social responsibility has had some benefit: it has highlighted the social responsibility that companies have when they invest in a given area. (Prior IntLawGrrls posts) However, it has also allowed many corporations to engage in green-washing their image through the display of sophisticated policies printed in expensive brochures.
A new story that has attracted some attention recently concerns the activities of the Vedanta mining concern, one of Britain’s largest companies, who have built an aluminium producing plant in Orissa, in the east of India. Vedanta now wishes to mine bauxite in the region in order to get the plant running at full capacity.
Orissa is one of India’s least developed states, with some of the poorest people in the world, with many indigenous tribes among them. It has been known for a long time that this part of India holds significant deposits of mineral resources, but with India speeding towards accelerated development, these resources have suddenly become crucial to sustaining growth.
Vedanta maintain that their mining activities would bring jobs and increasing wealth to the local population. However, the indigenous Dongria Kondh tribe strongly oppose mining in their sacred mountains, and are concerned about the environmental impact of this activity in the region. An Amnesty International report issued in February supports their view.) The tribal members argue that they do not want to change their ancestral way of life, and have no interest in the type of development Vedanta has promised them. (credit for photo by Parth Sanyal /Reuters, captioned "A tribal woman with her child near the mining site of the alumina refinery in Orissa state")
From an international legal perspective, the Vedanta story raises several important issues:
► The increased power of transnational corporations has made the seeking of accountability for their actions extremely difficult in environments where they may be able to operate freely, and often with the complicity of the government.
► While globalisation itself cannot be regulated, it is clear that new norm creation activities have been taking place in international law, not least with the presence of the World Trade Organisation.
► However, little of the ethos concerning human development and poverty alleviation feeds into these important discussions.
To address these challenges, my home institution, Middlesex University in London, England, has created an MA programme in Human Rights and Business. The course covers areas of law such as international human rights law and the law of the WTO, and explores the relevance of these areas to multinational corporations -- especially those corporations operating in emerging economies. The modules are deliberately human rights law-centred, and go significantly beyond the concept of corporate social responsibility. The programme itself is tailored for busy professionals with significant online content and class contact restricted to two days a month (Friday-Saturday). More information here.

On July 7

On this day in ...
... 1534, European voyagers and indigenous Americans encountered one another, for what's said to be the 1st time ever, when French explorer Jacques Cartier, who'd arrived at North America weeks earlier, met and traded with inhabitants of the basin surrounding the Gulf of St. Lawrence, at the Baie des Chaleurs (charted in the 1612 map at left), in what is now New Brunswick, Canada.

(Prior July 7 posts are here, here, and here.)

On May 27

On this day in ...
... 1517, Dominican and Franciscan friars, headed by Pedro de Córdoba, wrote a letter to Spain's monarchy in defense of the indigenous peoples of the Americas. Prompting the letter were Spanish colonial policies that had decimated the native population.

(Prior May 27 posts are here, here, and here.)

On May 1

On this day in ...
... 1946, approximately 600 Aborigines working at "pastoral stations," or ranches, in northwest Australia walked off the job to protest working conditions, beginning the Pilbara strike, "an unheard of act of autonomy in an era where the Aborigines were systematically deprived of land, power, freedom and respect." Although its organizers were jailed, the effort endured for years, as strikers earned income from other work and were aided by "unionists, women's organisations, churches and others." The mineral-rich region (in red on map at right) remains in the news: recently Australia's Deputy Prime Minister, Julia Gillard, visited Pilbara to announce that "the Federal Government will not support legislation to force mining companies to employ Aboriginal contractors."

(Prior May 1 posts are here, here, and here)

In passing: Wilma Mankiller

(In passing marks the memory of a person featured in IntLawGrrls)

Wilma Mankiller (left) succumbed yesterday to pancreatic cancer at her home near Tahlequah, in eastern Oklahoma.
As we've posted, a quarter-century ago Mankiller "became the 1st woman Chief of a major Native American tribe." Her New York Times obituary, published today, credits her with "revitaliz[ing] the Cherokee Nation’s tribal government and improv[ing] its education, health and housing ..." (credit for 2005 photo)
She spoke often on issues affecting indigenous peoples; a video clip from a 2008 talk is here.
Mankiller was born 64 years ago in Tahlequah, the 6th of 11 children born to a Cherokee father and a Dutch-Irish mother. When she was 10 or 11,

the family moved to San Francisco as part of a relocation policy of the Bureau of Indian Affairs. Its aim was to move Indians off federally subsidized reservations with the promise of jobs in America’s big cities.

She spoke of the move this way in a 1993 NYT interview:

'I set out on what I call my own little Trail of Tears.'

In San Francisco, Mankiller married early and in her 20s was known as "Mrs. Hugo Olaya." But as we've posted, she became

politicized when she joined the occupation of Alcatraz. She then moved back to Oklahoma to apply her skills on behalf of her people. Reelected Chief once, Mankiller resigned in 1995 because of ill health.

Yesterday the current Cherokee leader said on the tribe's website:

'We are better people and a stronger tribal nation because of her example of Cherokee leadership, statesmanship, humility, grace, determination and decisiveness. When we become disheartened, we will be inspired by remembering how Wilma proceeded undaunted through so many trials and tribulations.'

Afro-Colombians' plight

(It’s IntLawGrrls’ great pleasure to welcome back alumna Gay McDougall, who guest-posts on her current work as U.N. Independent Expert on Minorities)
　
During my official visit this month to Colombia (flag at left), I had an opportunity to meet with both President Álvaro Uribe and numerous senior government officials and to consult with persons from Afro-Colombian communities. This dialogue was in keeping with my mandate on minority issues, and helped to promote implementation of the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic minorities.
Focusing on communities who identify as Afro-Colombian, Black, Raizal and Palenquero, I visited cities and regions where these communities are prominent.
This post summarizes the preliminary views I set forward here; my findings and recommendations will be fully developed in my report to the U.N. Human Rights Council.

Overview
The story of Afro-Colombians begins with slavery and the massive and gross violations of the rights of African descendants that terrible chapter in history entailed. In Colombia, as slaves escaped, they were forced to find refuge in nearly uninhabitable, geographically remote regions of the Atlantic and Pacific coasts, shown in the darkest color at right. (map credit) There they built communities and livelihoods under conditions of extreme isolation, harsh climate, and often extreme poverty.
As in many other countries, the legacy of slavery endures and is manifested in communities that are socially and economically marginalized, facing racist attitudes and structural discrimination. The Colombian government has made efforts to address certain aspects of the disparities faced by Afro-Colombians, but the legacy of slavery continues to have a profound impact.
New challenges also have emerged.
Afro-Colombian settlements, in rural areas and town ghettos, rival only the reservations for Indigenous peoples as the very poorest in Colombia, with extreme poverty rates of over 60%. Surveys suggest that 80% of Afro-Colombians do not have basic needs met. Infant mortality rates in Chocó and Cauca are 54 per 1,000 of the population. Life expectancy in Afro-Colombian regions is only 55. Illiteracy rates for Afro-Colombians are estimated to be twice the national average. The responses of the national Government and regional authorities have been inadequate and must be addressed as a matter of urgency.
The recent census failed to capture the full demographic and socio-economic picture of the Afro-Colombians, estimated at between 10% and 25% of Colombia’s population. Additionally there is virtually no disaggregation of socio-economic data by race, so government policies are based on faulty data. I often heard from Afro-Colombians that they feel statistically "invisible", and that consequently their issues are ignored, their lives are less valued and that government policies dedicated to their needs are not achieving the desired improvements to their situations.

Legal Framework
Colombia has an impressive and commendable legislative framework that recognises many rights of Afro-Colombians, starting with the Constitution of 1991 which recognizes not only the right to non-discrimination but also the right to equality for all citizens. It also pledges to protect the ethnic and cultural diversity of the country and it promotes the political participation of minorities by establishing two reserve seats in the House of Representatives for Afro-Colombians.
Law 70 of 1993 recognises the right of black Colombians to collectively own and occupy their ancestral lands, and also reinforces rights to education, health and political participation.
While such measures are praiseworthy, the vast majority of communities and organizations that I consulted complain that implementation remains woefully inadequate, limited and sporadic. And where steps have been taken, no real enforcement has followed. As one woman told me:

‘The laws say all the right things but still, nothing has happened.’

Displaced & dispossessed
Displacement was highlighted as the highest priority issue for many Afro-Colombians. Those lands onto which runaway slaves were forced to retreat, while isolated and neglected for centuries, have in recent years been identified as the most fertile and resource rich of Colombia’s territory. This has placed these once isolated, largely self-sufficient communities directly in harm’s way.
These are also some of the most strategically important regions for guerrillas, former paramilitaries and other armed groups currently involved in narcotics production and trafficking. While the government has adopted a political position that the armed conflict has ended and paramilitary groups have demobilized, in many rural black communities that I visited I heard emotional and credible stories of murders and threats to the lives of community leaders.
The number of internally displaced persons ranges from an official tally of 3.073 million to civil society estimates as high as 4 million -- constituting the world’s second largest internal displacement situation. Those few who returned have found that others have claimed ownership or rights of usage in their absence.
Victims and communities believe that there is complete impunity for all of those who commit crimes against them.
I was pleased to meet with the Vice Minister of Defense and representatives of the police and the military during my visit. I was told of important steps being taken to build armed services that are aware of and responsive to the rights of Afro-Colombian communities and to break with the pattern of past violations. These efforts are welcome. However, more must be done to protect vulnerable communities and their leaders.
I would like to commend the work of the Ombudsman’s office in establishing a system of early warning and risk assessment for communities and leaders under threat. But the office’s alerts must be assessed by a committee of the security forces and civil institutions at the national level, which has frequently discounted the credibility of the alerts.
Displacement has particularly affected women, who have been displaced to urban areas in greater numbers than black men, and who suffer extreme vulnerability when they are. Ancestral lands from which Afro-Colombians are displaced are not only the source of livelihood and survival for communities, they are also essential for the preservation of Afro-Colombian culture, livelihood, language, tradition and for maintaining the social fabric of communities. (credit for 2007 Fiesta Palenque photo) The effects of displacement require solutions for both rural and urban communities, as recognized in a landmark decision of the Constitutional Court, Order 005 of 2009. The Court concluded that Government must act comprehensively to address the rights and needs of Afro-Colombians who are displaced and ordered specific measures; to date these have not been effectively implemented.
I welcome the establishment of the Intersectoral Commission for the Advancement of the Afro-Colombian Population, and hope that its recommendations will quickly move from the planning phase to the phase of actually impacting the lives of those who are suffering.


Women & violence
Afro-Colombian women spoke to me of their experiences, the violence committed against them, including sexual violence, the fear and trauma that they have endured on a daily basis and the challenges of their lives as women and mothers living under conditions of conflict, displacement and poverty. The rights of women to return to their community lands in security must be considered a priority.
When men have been killed, disappeared or forced to flee, women have assumed leadership roles in their communities and have shown remarkable resilience and resistance. However they do not receive the necessary recognition as community leaders and are not afforded the protection measures that they require. Mothers also spoke of losing children to forced recruitment into guerrilla and illegal armed groups.

Economic interests & "inconvenient rights"
Many Afro-Colombians have been displaced by "megaprojects", large-scale economic operations, often involving national and multinational companies, promoted by the government as bringing development and economic gain to the whole of Colombia. The communities have grave concerns about encroachment on their land rights and adverse environmental impacts; however, in the face of such economic interests and megaprojects it appears that the rights of communities are "inconvenient rights" and that the laws put in place to protect them are equally inconvenient.
Decree 1320 of 1998 requires that "prior informed consultation" must take place with Afro-Colombian and indigenous communities for the exploitation of natural resources within their territories. However I was informed that projects have been implemented without consultation or with consultations held with people who do not legitimately represent communities. Consultations must be meaningful and effective; importantly, International Labour Organisation Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, which this decree purports to incorporate into domestic law, requires that prior and informed consent of communities before projects are implemented on their lands.



Participation in decision-making
Despite the importance of political participation (prior post), Afro-Colombians are extremely poorly represented in political structures and institutions in Colombia and consequently the voices and issues of Afro-Colombians are not being sufficiently heard or given the attention that they deserve.

On January 26

On this day in ...
... 1788, a sea captain claimed what's now known as Sydney, New South Wales, thus establishing British imperialism in Australia. (image credit) Since at least 1808, the date has been commemorated as Australia Day. But according to this website,

while it is a day that weaves together the past and present of a great land and its people, its celebration is a sore point for some of Australia's Aboriginal community who consider they were invaded by the British on that day in 1788.

(Prior January 26 posts are here and here.)

On November 20

On this day in ...
... 1969 (40 years ago today), the Supreme Court of Canada issued its 6-3 decision in The Queen v. Drybones, a landmark in the law relating to the rights of native peoples and in the constitutional jurisprudence of Canada. The judgment arose out of a challenge to the 1967 arrest in Yellowknife, Northwest Territories (right), of Joseph Drybones, and of his subsequent conviction under a statute that forbade Indians from being intoxicated off of a reserve. (map credit) The Supreme Court invalidated the statute as unconstitutional -- a result predicated on its 1st-ever (and apparently its only) holding that its had the power to strike federal legislation offensive to the 1960 Canadian Bill of Rights. Canada's legislature consequently repealed the offending statute.

(Prior November 20 posts are here and here.)

On August 29

On this day in ...
... 1991, as detailed in this Canadian Broadcasting Co. clip, "two judges have filed their report on Manitoba's Aboriginal Justice Inquiry" (logo below left). Based on 3 years' testimony from "a thousand witnesses," the report detailed how the justice system discriminated against aboriginal Canadians, and recommended that they "have their own police forces and courts if they're to have any chance of fair treatment." Among the cases that spurred the inquiry was that of a 19-year-old Cree woman named Helen Betty Osborne (right); the AJI's final report issued in 1999 would devote an entire section to her. As reported by the CBC, Osbourne "was raped and stabbed to death by four white men in 1971. But a conspiracy of silence in the town where it happened meant it took 16 years to bring anyone to justice." (photo credit; logo credit)

(Prior August 29 posts are here and here.)

On July 6

On this day in ...
... 2005, the House of Representatives of Malta unanimously approved a Motion for the Ratification of the European Constitutional Treaty, thus making the Mediterranean island nation the 12th state party to that European Union pact. But as we've posted, the treaty failed to take effect on account of "No" votes in referenda held earlier the same year in France and the Netherlands. As a consequence the EU then shifted, seeking member states' OK of the Lisbon Treaty, an agreement that includes much of its predecessor but eschews any claim to being a Constitution. The future of this treaty too is in doubt, on 2 fronts: 1st, the electorate in Ireland, having received certain new assurances from the EU since its 2008 "No to Lisbon" vote, will stage a do-over referendum in October; and 2d, a national court has just ruled that Germany's ratification is not yet valid. (credit for map at left, prepared before German court ruling, which shows Ireland, in red, as the lone Lisbon Treaty holdout among EU member states, otherwise in green)
... 1934 (75 years ago today), amid an uprising (right) that had begun the month before, Chilean troops killed hundreds of campesinos -- the exact number is disputed -- around Fundo Ranquil, an area at the Biobío River near Chile's midpoint. (photo credit) A detailed account, in Spanish, of this unsuccessful movement by the Mapuche people to establish a "República Indígena" is available here.

(Prior July 6 posts are here and here.)

Guest Blogger: Courtney Jung

It's IntLawGrrls' great pleasure to welcome Dr. Courtney Jung (right) as today's guest blogger.
Professor of Political Science at the University of Toronto, Canada, Courtney's scholarship explores the intersection of comparative politics and contemporary political theory, using empirical work to push theoretical debates in new directions. Topics of particular interest, as is evident in her recent publications list, include indigenous peoples in a global politics of opposition and democratic theory and conflict resolution in transitional societies as varied as South Africa, Mexico, Northern Ireland, and Israel/Palestine.
Courtney, who received her Ph.D. from Yale, was a member at the Institute for Advanced Study in 2001-2002, and has held visiting positions at Yale University, Central European University, and University of Cape Town.
Her most recent book is Moral Force of Indigenous Politics: Critical Liberalism and the Zapatistas (Cambridge University Press, 2008) (below left); an earlier work, Then I was Black: South African Political Identities in Transition (Yale University Press, 2000), won the Choice outstanding book award. Other honors: Fulbright New Century Scholar, Mellon Foundation Sawyer Seminar Award, and National Endowment for the Humanities Fellow.

In her guest post below, Courtney discusses her new paper, "Canada and the Legacy of the Indian Residential Schools: Transitional Justice for Indigenous Peoples in a Non-Transitional Society", which carefully considers a transitional justice process mentioned at the bottom of this IntLawGrrls post.

Heartfelt welcome!

Transitional justice & indigenous Canadians

(My thanks to IntLawGrrls for the opportunity to guest post on my new paper.)

In September 2007, the Canadian government began to make compensation payments to former students of Indian Residential Schools like that pictured at left. By July 2008, the government had received 94,085 applications for the Common Experience Payment and issued payments to 66,232 survivors. Exactly a year ago today, the Canadian government apologized for its Residential Schools policy. (video clip; prior IntLawGrrls post) In May 2009, three commissioners were appointed to begin the work of the Indian Residential Schools Truth and Reconciliation Commission, intended to record the testimony of Residential School survivors and foster reconciliation.

The framework of transitional justice, originally devised to facilitate reconciliation in countries undergoing transitions from authoritarianism to democracy, is used with increasing frequency to respond to certain types of human rights violations against indigenous peoples. In some cases, transitional justice measures are employed in societies not undergoing regime transition. Both the government of Prime Minister Stephen Harper and the leaders of the First Nations seem keen to employ transitional justice measures to deal with the legacy of the Residential Schools. Nevertheless, they have different reasons for endorsing a transitional justice framework, and distinct perspectives on the work and goals of the apology, the TRC, and compensation.

Transitional justice measures are limited. In Canada, such measures are designed to address only the legacy of the Residential Schools. But indigenous leaders may be able to push a transitional justice framework further, to demonstrate that the Residential School system was part of a larger web of racist and oppressive government policies, not an aberration in Canadian government policy toward First Nations. The system was of a piece with other racist and discriminatory practices that have structured aboriginal life and life chances for the past three hundred years, mostly under the sheltering umbrella of the 1920 Indian Act.

The government’s acknowledgement of the injustice and cruelty of the Residential School system offers an opening that aboriginals could use to highlight the injustices of other government policies, and the almost ludicrous effrontery of offering an apology for the Residential School system alone, in light of the apocalyptic damage and harm the colonial and Canadian governments have perpetrated against aboriginal peoples. To the extent a transitional justice paradigm supposes the existence of historic injustice, and implies that states have an obligation to redress such injustice, it may open space for a much broader conceptualization of the actual injustices post-colonial governments may be held responsible for.

The scope of transitional justice is not only contested spatially, but also temporally. For the government, one goal of transitional justice is to draw a line through history, emphasizing that it takes responsibility for government abuses that are nevertheless firmly in the past. It thereby underlines a distinction between present and past policy, to bring an end to recriminations that keep it morally on the defensive. Such government initiatives as apologies, truth commissions, and reparations are designed in part to allow the government and the dominant (settler) society to say finally to aboriginal peoples “OK, now we’re even.” The “transition” is to an even playing field in which the government can finally wash its hands of past wrongs.

For indigenous leaders, transitional justice is not a wall, but a bridge. Aboriginal peoples have an interest in using transitional justice to draw history into the present, and to draw connections between past policy, present policy, and present injustices. Indigenous peoples may wish to extend new conceptions of historical wrongs to demonstrate that certain present policies re-inscribe historical injustices and relations of oppression. It has taken many years for non-aboriginal Canadians to recognize and acknowledge that the residential school system was racist, abusive, and fundamentally wrong, not only in its practice but also in its intent. Indigenous leaders may use transitional justice to push this cognitive transformation, to critique present policy by drawing conceptual links to past policies. For indigenous peoples, transitional justice is effective to the extent it links the past with the present. The “transition” is to a relationship in which connections between past and present are firmly acknowledged, and in which the past guides present conceptions of obligation.

(credit for photo made at All Saints Indian Residential School, Aklavik, Northwest Territories; credit for TRC logo)

Proposals: Organizations for Indigenous Women and Girls

Upcoming deadline: Wednesday, 8 April 2009, 5 p.m.

The Tides Foundation's Indigenous People's Fund is inviting grant applications specifically targeted to organizations that work for indigenous women and girls.
The Tides request for proposals (RFP) calls for “ general operating proposals from indigenous organizations working to preserve and enhance the rights, health, safety, and education of women and girls in native communities.”
(Logo above: UN Permanent Forum on Indigenous Peoples).

Grants range from $15,000 to $40,000 each. Check out further information and application materials here, but act quickly—proposals are due by April 8!

Site for Tribal Survival

Want to keep up with the movement for tribal peoples? Log on to Survival International, a multilingual site chock full of information about Brazilian Indians invading the World Social Forum held in late January, or the Awá, some of whom are still "uncontacted," or the Bushmen of Botswana, facing eviction from their lands to make way for diamond mining. You'll find articles and videos concerning tribes in the Americas, Africa and Asia/Australasia, educational materials, ways to contribute (by taking action, donating or buying various items), and a monthly newsletter.
Check it out!