Some Thoughts on Securing the Future of the European Court of Human Rights

It is cliché at this point to say that the European Court of Human Rights (left) is in crisis: we all know that it faces an enormous backlog of applications and that, in spite of the new arrangements introduced by Protocol 14 (once Russia finally ratified it…), these problems are persistent and serious.
Last year there was a meeting in Interlaken to try to come up with some solutions to these difficulties and, in particular, to try to design and envision mechanisms by which the future of the Court could be secured. I blogged about that conference and the Declaration that emerged briefly at the time, and indeed Alistair Mowbray has produced a really excellent overview of both for the Human Rights Law Review which people with access to Oxford Journals can download here.
However, in my view the Interlaken process and the declaration that followed it singularly failed to come properly to grips with what I think is a fundamental element of the challenge faced by the Court: the expectation (quite widespread) that the Court can continue to function as both a constitutionalist court and an adjudicatory court where individuals are at the blunt end of actions that have been clearly—and often repeatedly—found to violate the Convention in Strasbourg jurisprudence. In a paper that I’ve posted as a working paper on SSRN (download free here) and which will appear in final form in the Irish Human Rights Law Review, I argue that persisting with this ‘dual functionality’ poses a serious difficulty for securing the Court and that, in fact, its constitutionalist function ought to be privileged over the adjudicatory one. I want to outline a few of the reasons for this here.
At bottom my argument is that the Court continuing with this dual functionality and especially with having to deal with repetitive applications (which is widely recognised as being problematic) is damaging it, not just because it means there is a huge volume of applications with attendant delay and cost, but primarily because it means that the Council of Europe, domestic political systems and domestic courts can continue to use the Court as a kind of an ‘escape hatch’ from having to properly internalise and apply the principles and judgments of the Convention and Court.
► First of all expecting the Court to continue to deal in some way with non-constitutionalist repetitive applications absolves the Council of Europe from really placing firm political pressure on states that are engaging in activity and behaviour that clearly violates the Convention. It means, in essence, that rather than using international political processes to reinforce and make effective the principles of international law, the Council can (and does) marginalise human rights enforcement by its member states in the comfortable knowledge that the Court will adjudicate on potential violations following which the Committee of Ministers will supervise execution of the judgments. In the article I put it thus:

As we know, the judgments of the Court are binding only on the states that are party to them but of course the principles outlined therein (especially in constitutionalist cases) have implications beyond those state parties. The only way in which the importance of those principles can be fully appreciated by member states within the Council of Europe is through an appropriate level of inter-state interaction, encouragement, reputational trading, and other typical international relations processes. It is incumbent upon states to ensure that compliance with the judgments of the Court and the principles of the Convention is an expected course of behaviour from all member states and, almost more importantly, that failure to do this is subject to political sanction quite apart from the juridical processes of the Court.

► Secondly I say that the adjudicatory function of the Court allows for national political systems—especially but not limited to parliaments—to sideline Convention issues if they wish to. This is especially the case, I think, where a state has a law or norm that is analogous (or, indeed, sometimes identical) to one in operation in another state and that other state had been censured by the Strasbourg Court in relation to the law or norm in question. In those situations one would expect that a state would try to remedy the situation before a case comes before the Court, especially where it a near certainty that if the State does appear before the Court in relation to same it will be found to be in breach of the Convention. This is something we are all too familiar with in Ireland, where we have failed to take action in response to cases against other states when our own law is clearly analogous to the one impugned: one need only think of Norris v Ireland (ECHR 1988) for an example from our past. In the piece I try to foresee what impact refocusing on constitutionalism would have on situations like this:

So what would happen if the European Court of Human Rights were to refocus its efforts on constitutionalist cases so that these repetitious applications would be greatly reduced? In the first place we might expect a greater degree of inter-state political pressure for change within the Council of Europe as considered above; secondly we might see the energies of NGOs that currently apply substantial amounts of energy (and, indeed, resources) to supporting litigants in taking cases ‘to Europe’ could redirect those efforts and resources towards the domestic political processes (which is, after all, where substantive legal change ultimately takes place); thirdly we might see the development of a further and more mature relationship with the Convention within legislative processes. I have written before, with Cliona Kelly, of the failure of the Irish legislative processes to internalise the Convention in an effective manner. Would removing the ‘security blanket’ of the Court’s adjudicatory function (that allows domestic politico-legal processes to abdicate the responsibility to take the Convention and the decisions of the Court into full and appropriate account), combined with real inter-state rights-based scrutiny within the Council of Europe and potentially more well-resourced NGOs putting pressure on the domestic systems, in fact improve the Convention’s effectiveness? I think that is at least a likely outcome.

► And finally I argue—along somewhat the same lines—that reducing or removing the adjudicatory function might invigorate judicial engagement with the Convention, and especially the process of developing autonomous understandings thereof:

[R]ather than considering themselves incapable of developing the Convention beyond the standards outlined by the Strasbourg Court…and being able to rely on the European court of Human Rights to ‘nudge’ them step-by-step along the way…domestic courts would be incentivised to develop their own autonomous understandings of the Convention. Those understandings would, of course, be framed within the constitutionalist principles laid down by the Strasbourg Court, but they would truly entrench the Convention within the domestic legal system.

The Interlaken Declaration did not, I think, engage seriously enough with the problematic nature of the dual functionality of the Court to be able to set in motion a process that would really secure the future of the Court.
A shift away from adjudicatory function (especially in repetitious cases) and refocusing towards constitutionalism would not be easy. Certainly there is a huge pressure from many, including the NGO community, to maintain individual adjudication as central to the Court and I can entirely see the motivation for this. But I think it’s a little bit like a negative circle: we need an adjudicatory court because states won’t embed the constitutionalist principles it espouses but maintaining adjudicatory functions takes away many of the incentives that are required to ensure full internalisation of the Convention in domestic legal and political systems. This is absolutely a quandary, and one that I think is very difficult to emerge from. My piece is trying, at least, to think through some of the elements of that quandary.
There is still time to make changes to the paper before publication and any comments are most welcome!

(Cross-posted at Human Rights in Ireland)

Disappointing decision on abortion in Ireland

(Delighted to welcome back alumna Máiréad Enright, who contributes this guest post)

Over at the Human Rights in Ireland I have assembled a series of 'rapid responses' by five Irish feminist scholars to the recent judgment in A, B & C v. Ireland (December 2010), in which the European Court of Human Rights (right) ruled that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. IntLawGrrls Fiona de Londras discussed the judgment as soon as it was issued, on this blog here. The responses that I have compiled critique the judgment and aim to place it in its broader legal context.
► Dr. Lisa Smyth, a sociologist at Queen's University Belfast, argues that the judgment in A, B & C signals a 'downgrading' of the abortion issue in Ireland: the shift from widespread moral to detailed legal argument signals the changed significance of this issue, once imagined to capture the essence of Irishness in the face of a history of colonisation and an imagined future of increasing European liberalisation.'
► Dr. Brenda Daly of the School of Law and Government at Dublin City University explains why the judgment will almost certainly drive the Irish government to legislate to regulate access to life-saving abortions.
► Dr. Mary Gilmartin (below left), at the Department of Geography, National University of Ireland-Maynooth, notes that the judgment leaves the status quo untouched as it concerns women whose lives are not placed at risk by pregnancy. She writes that

'the Court is following decades of practice in Ireland – from the forced emigration of pregnant women in the mid twentieth century to the ‘right to travel’ of the 1990s – where mobility has become an expedient way of addressing the vexed question of women’s sexuality. That mobility is still a ‘solution’ means that the broader issue of access to abortion services continues to be displaced across international borders.'

► Dr. Ruth Fletcher of the School of Law at Keele University in Staffordshire, England, sets the judgment in the context of ECHR jurisprudence and criticises it on four grounds:
►► It overstates the respect due to 'profound moral values' as a ground for limiting individual rights;
►► It simultaneously limited the capacity of consensus among contracting states to restrict the scope of the individual state’s discretion to protect morals;
►► It did not take adequate account of health and well-being as important individual interests; and
►► The state is allowed to claim that it is meeting negative obligations to protect women’s health and well-being, by relying both on women’s resourcefulness to exit the jurisdiction and on the availability of independent, charitable services in other jurisdictions. (On this aspect of the decisions, see too the recent New York Times op-ed by American legal expert Linda Greenhouse (above right).
► Finally, Dr. Sandra McAvoy (left) of Women's Studies at University College Cork interrogates the dubious basis upon which the Court established the 'profound moral values' to which Ruth refers.
Together these pieces provide a rich introduction to the issues raised by this important, if ultimately disappointing, judgment.

The European Court of Human Rights on Abortion in Ireland

This morning in A, B & C v Ireland the European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

There is more commentary, including from IntLawGrrls alum Máiréad Enright, on Human Rights in Ireland.

Read On! ICL Handbook

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

It is a pleasure to come back on IntLawGrrls (my previous posts are here and here) to announce the Routledge Handbook of International Criminal Law, published last month.
I co-edited the Handbook with Professor William A. Schabas, Director of the Irish Centre for Human Rights at the National University of Ireland, Galway. We wanted to put together a book that would provide a reader new to the area with an introduction to this fast-growing area of law. But, at the same time, we did not want to edit a mere textbook. The whole idea was to give our contributors (who include a number of IntLawGrrls besides myself: Fiona de Londras, Leila Nadya Sadat, Margaret deGuzman, and Nancy Amoury Combs) the freedom to express their opinions, as scholars, on the areas they were asked to write on.
We are really happy with the results as our contributors have manage to deliver concise, original and provocative papers which, combined together in one single publication, make this book greatly relevant to students, scholars and practitioners working in the field.
Here is the table of contents:

1. Introduction, William Schabas and Nadia Bernaz

Part 1: Historical and Institutional Framework
2. Trial at Nuremberg, Guénaël Mettraux
3. The Tokyo Trial, Neil Boister
4. The Trials of Eichmann, Barbie and Finta, Joseph Powderly
5. The Ad Hoc International Criminal Tribunals: Launching a New Era of Accountability, Michael P. Scharf and Margaux Day
6. The International Criminal Court, David Scheffer
7. Hybrid Tribunals, Fidelma Donlon

Part 2: The Crimes
8. Genocide, Paola Gaeta
9. Crimes Against Humanity, Margaret M. deGuzman
10. War Crimes, Anthony Cullen
11. Aggression, Nicolaos Strapatsas
12. Terrorism as an International Crime, Fiona De Londras
13. Drug Crimes and Money Laundering, Robert Cryer

Part 3: The Practice of International Tribunals
14. Understanding the Complexities of International Criminal Tribunal Jurisdiction, Leila Sadat
15. Admissibility in International Criminal Law, Mohamed M. El Zeidy
16. Defences to International Crimes, Shane Darcy
17. Participation in Crimes in the Jurisprudence of the ICTY and ICTR, Mohamed Elewa Badar
18. International Criminal Procedures: Trial and Appeal Procedures, Hakan Friman
19. Sentencing and Penalties, Nadia Bernaz
20. State Cooperation and Transfers, Judge Kimberley Prost
21. Evidence, Nancy Combs

Part 4: Key Issues in International Criminal Law
22. The Rise and Fall of Universal Jurisdiction, Luc Reydams
23. Immunities, Rémy Prouvèze
24. Truth Commissions, Eric Wiebelhaus-Brahm
25. State Responsibility and International Crimes, Eric Wyler and León Castellanos-Jankiewicz
26. International Criminal Law and Victims’ Rights, Carla Ferstman
27. Amnesties, Louise Mallinder
28. International Criminal Law and Human Rights, Thomas Margueritte
29. Conclusion, William Schabas and Nadia Bernaz

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.

UN Women: Symbolism or Agent for Change?

As noted by IntLawGrrl Stephanie Farrior here, it was announced this week that former Chilean President, Michelle Bachelet (left) is the new UN Under-Secretary General and will lead the UN Entity for Gender Equality and the Empowerment of Women, known as UN Women. In this post I want to both outline the structure of the agency and consider why such an agency is required within the UN. While the establishment of UN Women is to be welcomed, questions necessarily arise as to whether or not it will stand as a symbolic commitment to gender equality and the advancement of women and girls or whether (as I hope will be the case) it will really operate as an agent for change to improve the lot of women and girls around the world.

The UN General Assembly -- which, as IntLawGrrl Amy Senier then reported, had adopted a resolution in this regard about a year ago -- established UN Women in July, as part of the organisation’s ongoing reform agenda. Described on its website as “an historic step in accelerating the Organization’s goals on gender equality and the empowerment of women”, UN Women is a new agency that merges four UN organisations: the Division for the Advancement of Women, the International Research and Training Institute for the Advancement of Women, the Office of the Special Adviser on Gender Issues and Advancement of Women, and the UN Development Fund for Women. Bringing these organisations together, UN Women will not only help to co-ordinate the work undertaken within the organisations but will also constitute a large and broad-ranging internal agency of the UN that can impact on the organisation’s wide range of work.

The establishment of UN Women will not, as far as I can tell, result in gender experts within different parts of the UN from being appointed (such as Professor Catharine MacKinnon’s role as Special Gender Adviser to the Prosecutor of the International Criminal Court); neither does it preclude the appointment of special rapporteurs to consider gender aspects of particular issues under consideration by the UN where this is thought appropriate. It should therefore be seen as a consolidation and, indeed, expansion of the gender equality mechanisms within the UN.

According to its website, UN Women has three stated aims:

► To support inter-governmental bodies, such as the Commission on the Status of Women, in their formulation of policies, global standards and norms;

► To help Member States to implement these standards, standing ready to provide suitable technical and financial support to those countries that request it and to forge effective partnerships with civil society; and

► To hold the UN system accountable for its own commitments on gender equality, including regular monitoring of system-wide progress.

This marks an important further step in the full integration of women and, indeed, more generally of gender-consciousness into the work of the United Nations.

The exclusion of women from the originating processes of international law and of the United Nations has been extensively commented on elsewhere, most authoritatively perhaps by Hilary Charlesworth, an IntLawGrrls guest/alumna, and Christine Chinkin in their immensely important monograph on The Boundaries of International Law: A Feminist Analysis (2000). Excluding women from the founding processes of the United Nations resulted in a lack of perspective on the distinctive and particular ways that laws, states and inter-state relationships can impact on women and girls. It also resulted in the occlusion for a long period of time from human rights law of the realities of women’s experiences. This was not exclusive to human rights law, of course; women were traditionally excluded from essentially all areas of international law and interested readers will find the Charlesworth & Chinkin analysis illuminating and, perhaps, depressing. The focus of this post, however, is on human rights law.

While it is of course true that women and girls do not exclusively experience gender-based violence, sexual violence, discrimination and exclusion, it is equally true to acknowledge that women and girls experience these conditions more than men and boys do and that this is related to persistent and pervasive social and legal conditions that disadvantage women. The UN human rights system cannot be accused of having remained in its ‘original’ masculine state; it has over time developed a number of agencies, resolutions, institutions and Conventions that focus specifically on the conditions of life as they are experienced by women. This has been an especial focus of the UN Convention on the Elimination of All Forms of Discrimination against Women and its enforcement mechanisms, but also by a commitment (met to a greater or lesser extent in different situations) to consider the impact of policies, laws and conditions on women and girls. However, CEDAW is not enough on its own: not only is CEDAW not universally ratified and implemented in domestic law, but the extent to which States have entered reservations to important (if not in fact foundational) provisions within the Convention has long been a source of comment.

In addition, an enormous international organisation such as the United Nations is in need of a gender perspective—if not a kind of internal gender watchdog—as is any state or large organisation. It is therefore entirely fitting that UN Women would commit, as it does, to holding “the UN system accountable for its own commitments on gender equality”. This will include not only monitoring of the UN’s institutional progress on gender equality but also, it seems, ‘gender auditing’ proposals from UN bodies and assisting states in the important work of actually operationalising the UN’s standards.

It is heartening to see reference in the above-quoted aims to the provision by UN Women of “suitable technical and financial support to those countries that request it”, but the wording of this aim does give rise to a number of questions:

► Are states where gender inequality is systemic and where women’s rights standards of the UN are not being implemented really likely to “request” the support of UN women?

► Even if they do, will the agency be sufficiently supported in terms of finance, personnel and logistics to provide adequate “technical and financial support” to help those countries to move towards more effective standards of gender equality?

These are questions that cannot reasonably be answered until we have seen UN Women in operation for some years, but it is difficult to not feel some cautious impulses in considering the likely success of the agency. It is also to be hoped that in deciding how to “to forge effective partnerships with civil society”, UN Women will apply gender equality criteria in selecting its civil society partners, including the effective representation of women within the organisations themselves.

None of these notes of caution are intended to under-play the importance of the establishment of UN Women; this is a genuinely welcome development and one that it is hoped will make real progress in advancing the rights of women and girls, and the cause of gender equality, in and through the United Nations. However, until we see how it operates (and, indeed, is facilitated by the wider UN bureaucracy and the member states) UN Women stands as a symbol of the world’s commitment to gender equality and, without sounding too pessimistic a closing note, more symbolism is the last thing the world’s women need. Action, effective commitment, implementation of CEDAW and genuine progression towards gender equality in all areas of human rights protection—civil, political, social, economic and cultural—are much more urgently required.

(Cross posted from Human Rights in Ireland blog)

Quotes from Women on Law and Justice

Here at University College Dublin School of Law we are moving towards completing our fantastic new building for the Sutherland School of Law (take a tour here), under the academic directorship of Professor Imelda Maher (right). One of the features of the School will be a corridor of quotations about law and justice coming, not only from lawyers, but from people of all walks of life: politicians, activists, novelists, poets etc...
As we finalise these quotes, I was wondering whether you--lovely readers--had suggestions for quotes from women on the themes of law and justice. My personal favourite, so far, is from Mary Robinson, who said:

In a society where the rights and potential of women are constrained, no man can be truly free. He may have power, but he will not have freedom.

What are your favourite quotes from women about law and justice?

The Bombing of Claudy in 1972: Report of the Police Ombudsman of Northern Ireland

In 1972 the small Derry town of Claudy was devastated by the explosion of three car bombs by the IRA, causing the death of nine people and injuring thirty more. Information was made available shortly afterwards to the Royal Ulster Constabulary (RUC) suggesting the involvement of a Catholic priest, Fr James Chesney, in the bombings. Perhaps understandably, given the incredibly volatile situation existing in Northern Ireland at the time, a political approach was made to the Roman Catholic Church informing them of the suspicions against Fr Chesney. The Church's response was to speak to F. Chesney (who, it appears, denied involvement), and move him to a parish in Donegal within the Republic of Ireland. Fr Chesney, who died in 1980, was never again placed in a parish in Northern Ireland, the police investigation into his involvement was never followed up, and nobody has ever been charged in relation to the bombing of Claudy.
Yesterday the Police Ombudsman for Northern Ireland released his report in to the handling of the Claudy investigation by the RUC. Working within his remit--of considering whether there was police misconduct--the Ombudsman concluded that the investigation was deficient for its failure to pursue a line of questioning and investigation that would have either confirmed suspicions or resulted in Fr Chesney being eliminated from the investigation. This report has resulted in accusations of a Roman Catholic 'cover up' of Fr. Chesney's involvement and denial of same by the Cardinal of All Ireland, Fr. Séan Brady (Irish Times editorial). It has also resulted in an apology from the British government to the people of Claudy for the deliciency of the investigation and raised questions, as I noted here, of compliance with the investigation obligation in Article 2 (right to life) of the European Convention on Human Rights.
It is to be assumed that moving Fr Chesney to a parish in Donegal did not, of itself, prevent the issuance of an arrest warrant against him. Indeed, although there is quite a substantial amount of criticism of the Church's role in this investigation (perhaps primarily because of revelations in Ireland about the extent to which the Church hierarchy covered up clerical child sex abuse), it does seem to me that the Church did not substantially impede police investigation. Whether they would have done so had the RUC determined to arrest Fr Chesney (and, indeed, whether the Irish government would have extradited him to Northern Ireland if charged) is a different question in relation to which only conjecture is possible.
What is really striking about the revelations in the Ombudsman's report is the extent to which politics played an important--if not determinative--role in the manner in which atrocities in Northern Ireland were investigated. Unlike in cases of collusion with Loyalist/Unionist paramilitary organisations which I have written about here on IntLawGrrls before, the decision about Claudy seemed to be motivated not by a desire for a cover-up but rather by an appreciation of the immense ramifications arrest of a Catholic priest for IRA involvement would have had in 1972 Northern Ireland. Indeed, the Ombudsman himself noted the possible political motivations for this course of action yesterday.
The reality, however, is that however and why-ever motivated the decision to cut off an important and seemingly viable line of investigation into the bombing was a flagrant breach of the rights (and, indeed, the needs) of the deceased and their families; families that, as evidenced by their interaction with the media yesterday, remain deeply and profoundly affected not only by their loved ones' deaths but also by the RUC's failure to fully pursue the perpetrators of the attack.

Write On! Vulnerability & the Corporation

(Write On! is an occasional item about notable calls for papers.)

On October 29-30 this year the Feminism and Legal Theory Project and the Vulnerability and the Human Condition Initiative (both based in Emory University in Atlanta, Georgia) will hold a workshop on Vulnerability and the Corporation. The workshop is organised by me, Emory's Martha Fineman (below right), and Anna Grear of Bristol Law School in England. It will take place at Emory from 4pm, Friday, October 29, to approx 5pm Saturday, October 30. Here is the call for papers:

Vulnerability, understood as a universal and constant part of the human condition, is an important paradigm within which to consider and evaluate the ways in which states respond (or fail to respond) to individual, structural and community catastrophes. This workshop will build on the notion of a responsive state and consider the relationship between corporate structures, vulnerability, and state responsiveness. In the first instance, we recognize that increasingly corporations—whether operating on a local, national or transnational basis—act in ways that can either exacerbate or alleviate human vulnerability. Corporations can cause or complicate the inherent vulnerability of their employees and their dependents, as well as exploit the ecology and vulnerability of our natural and created environments. How should the state respond to this powerful potential for benefit or harm that is lodged in a “private” institutional actor? In addition, corporations may themselves be conceptualized as vulnerable entities. The corporation itself has been recognized as a “person” under the US Constitution, entitled to legal rights and protections and as a holder of human rights under the European Convention on Human Rights. How does the concept of corporate personhood differ from that of the natural person in law and what are the implications of those differences for state responsiveness and regulatory policy?

Papers proposed might consider (although are not limited to) questions related to:
► The identification as corporations as rights-bearers and the implications of the disembodiment of rights protection;
► The transfer of power from the state to the corporation and implications for individuals as citizens/consumers/subjects/objects of state-like power;
► The implications of the conceptualisation of corporations as legal persons with standing;
► Regulatory responses to the vulnerabilities produced by corporations including, in particular, questions of worker welfare, protection and environmental justice;
► State, regional and international responses to perceived corporate and market vulnerability and the vulnerabilities that may emerge from such responses;
► Distinctions between human vulnerability and corporate vulnerability and implications of such distinctions for appropriate state responses;
► The potential for the Corporate Social Responsibility and Business and Human Rights movements to enhance theories of appropriate state and corporate responses to vulnerability; and
► Connections and disconnections between experiences of vulnerability by and of the corporation between the Global North and the Global South.
Anyone interested in presenting their work should email an abstract of several paragraphs in length to mfineman@law.emory.edu, anna.grear@uwe.ac.uk, fiona.delondras@ucd.ie, and cdomozi@emory.edu no later than August 15th. Draft papers will be due by October 11th.

Dispatch from Oslo

As Beth van Schaack posted earlier today, the University of Oslo is currently hosting The Creation of International Law: An Exploration of Normative Innovation, Contextual Application, and Interpretation in a Time of Flux. This two day conference brings together acclaimed women scholars from around the world to explore challenges relating to the creation and elaboration of international law.
Catharine MacKinnon (left) began the conference with a brilliant keynote address focusing on the trajectory of the crime of rape from its conceptual origin as a crime against an individual into a gender-based crime into an international crime. She gave a brilliant exposition of the reflexive relationship between conceptions of gender in domestic and international law. Organized by Prof. Cecilia Bailliet, an IntLawGrrls guest/alumna, the conference has been a showcase for IntLawGrrl talent.
IntLawGrrls Fiona de Londras, Karima Bennoune and Beth van Schaack presented papers today on varying aspects of international criminal law. On tomorrow's roster are IntLawGrrls Hari M. Osofsky and me, Rebecca Bratspies, both speaking about international environmental law.
The papers from the conference will be published.

The Creation of International Law

Greetings from Oslo, where a number of IntLawGrrls (members, guests, and alumnae) are participating in a conference organized by Cecilia Bailliet and others at the University of Oslo Faculty of Law on The Creation of International Law: An Exploration of Normative Innovation, Contextual Application, and Interpretation in a Time of Flux.

Participants include the following women in international law (IntLawGrrls have a * next to their names):

► Henriette Aasen - University of Bergen
► Montserrat Abad - Carlos III University of Madrid
► Sumudu Atapattu (above left) - University of Wisconsin
► * Karima Bennoune (left) Rutgers School of Law, Newark
► * Rebecca M. Bratspies (right, in black) - CUNY School of Law
► Catherine Brölmann (below, in blue) - University of Amsterdam


►* Doris Buss - Carleton University
► Rosemary Byrne (right, with scarf) - Trinity College Dublin
► Christine Byron - Cardiff Law School (below left, in purple)
►* Hilary Charlesworth (below, in white) - Australian National University

► *Fiona de Londras (below) - University College Dublin
► Katherine Del Mar (below right) - University of Geneva
► Malgosia Fitzmaurice - Queen Mary University of London School of Law
► Anne Hellum - University of Oslo
► Agnieszka Jachec-Neale (below right, in front of window) - School of Oriental and Asian Studies
► Edda Kristjansdottir - Amsterdam Law School
► Catharine MacKinnon - Harvard Law School/U. Michigan Law School
► Claudia Martin - AU Washington College of Law
► *Fionnuala Ni Aoláin - U. Minnesota School of Law
► Phoebe Okawa (right) - Queen Mary University School of Law
► *Hari M. Osofsky - U. Minnesota School of Law
► Inger Johanne Sand - University of Oslo
► Kirsten Sandberg (right, in green) - University of Oslo
► Birgit Schlütter - Norwegian Center for Human Rights
► Hitomi Takemura - NUI Galway & Kyusha International University
► * Beth Van Schaack - Santa Clara University School of Law
► Maria Varaki - PhD candidate, NUI Galway; Irish Centre for Human Rights

Stay tuned for additional postings from the conference.

Newly Courted?

The nomination of Solicitor General Elena Kagan to the U.S. Supreme Court already has inspired, among much other press:

► Fiona's thoughtful consideration of constitutional and human rights protection;

► My own reading of intlaw tea leaves; and

► The Supremes and the Single Girl, which our guest/alumna Mary L. Dudziak posted at her own Legal History Blog.

It's also prompted thoughts about how having 3 women might affect the 9-member Court.

"Women do bring different life experiences to the court," our honored guest/alumna, Judge Patricia M. Wald, wrote in the series she published here last fall. It's a point that other IntLawGrrls also have explored, many in posts (available here) on the confirmation of Justice Sonia Sotomayor last summer.

Surely, having a bench that's 1/3 women would place America's highest court closer to a global forefront regarding representation. As Justice Ruth Bader Ginsburg herself has noted, 4 out of the 9 Justices on Canada's Supreme Court are women. And a number of international tribunals have a significant mix of genders -- in some cases, like that of the International Criminal Court, where 10 of 19 Judges are women, by decree of statute. Truth be told, however, women lag elsewhere. At the United States' southern border, the Supreme Court of Mexico lists only 2 Ministras out of 11 members. On Germany's Federal Constitutional Court, 3 out of 16 Judges are women; on the Supreme Court of the United Kingdom (prior post), 1 out of 12 Justices; and on France's Conseil Constitutionnel, 1 woman out of 11 membres.

A likely consequence that gets less attention is one that might in the end have the greatest effect on our profession: opening seats for women on the high bench may in in turn open space for women to act as advocates before that same bench. Our colleague Pamela Harris, organizer of the Georgetown Law conference about women and the Supreme Court on which we posted last month, told The New York Times:

'If clients are visualizing the court as a predominantly male entity, they are going to want a lawyer who looks like the people on the bench. I think this could also be a critical moment in terms of women arguing before the Supreme Court.'

International and Constitutional Rights Protections: Conceptualising the Relationship

I have been thinking a lot lately about what internationalism in rights-related legal discourse really means, and particularly about the kinds of relationships that can and should exist between international law and domestic law. Yesterday's nomination of Elena Kagan (left) to the US Supreme Court, about which Diane posted, and likelihood of questions on this arising during the confirmation hearings has brought this question into sharp relief for me once more. In particular, it has made me think about conceptions and articulations of the appropriate relationship between international human rights law and domestic constitutional rights law in jurisdictions—like the United States and Ireland—where the constitution contains fundamental rights guarantees and is founded on liberal democratic conceptions of justice, as is international human rights law.
Of course, some argue that international human rights law and constitutional rights law ought not to interact at all. In other words, that international human rights law applies firmly to the external sphere of a state’s operations and that constitutional law applies firmly to the domestic sphere. Never—this line of thinking would tell us—ought the two to meet. In my view, this perspective misses out on the main rationales behind international human rights law. Designed not only to help to articulate a set of relatively universal values (albeit subject to some areas of contention, usually—we ought not to forget—involving ‘culture’ and, inevitably, the rights and freedoms of women and children), international human rights law is to my mind a body of law with a distinct interest in the creation of synergies between these two alleged spheres. This is reflected in the fact that the clear preference of international human rights law’s institutions is for rights-related disputes to be resolved at the domestic level as expressed through the principle of subsidiarity/complementarity.
Recognising this requires us, as a body of scholars and practitioners, as well as political actors to recognise the parallelisms and reflections between international and domestic law. It also requires us to let go of the now somewhat outmoded hard dualism that suggests that there really are two separate spheres of operation when it comes to the actions of states vis-à-vis individuals. Rights-protecting law, whether we call it human rights law or civil rights law, is essentially based on a dignitary understanding of the individual as a person deserving of respect and of the state as an entity requiring of limitation. This basic, constitutionalist, understanding is common to constitutional and international human rights law, at least in the kinds of constitutional jurisdictions I am thinking of (i.e., as mentioned above, the liberal democratic state).
If this is the case, then it makes little or no sense to suggest that what a state does at home should be subject to different (and often more serious) limitation than is the state’s action abroad. It equally makes little or no sense to suggest that what a state does in relation to one of its citizens should be subjected to more strenuous limitation than what it does in relation to a non-citizen. Rather, the state is to be limited in its interactions with all individuals and the basic object of all rights-related law is to draw clear lines around states’ actions in this respect. To be sure, there will be some areas in which what domestic law allows and what international law allows differ. These ‘fuzzy lines’ (for the want of a better nomenclature) certainly represent the areas of the greatest contention and contestation, but even in those areas these two bodies of law can interact with one another; they can, as I put it in a recent article, become interlocutors with one another in a synergistic relationship towards harmonisation.
As the United States moves towards the appointment of its next Supreme Court Justice, it is appropriate for us to think about how these kinds of conceptualisations of the relationship between international and constitutional rights protections can impact on the decisions that our apex courts make. It is only if we accept that there are two different spheres of operation for a state that we can accept any proposition in favour of essentially limitless state action abroad or, indeed, in favour of undercutting domestic protections for certain classes of suspect individuals without having an eye to what international human rights law might have to offer to us by means of guidance. In her confirmation hearings for Solicitor General, Elena Kagan proposed that individuals suspected of offering material support might be subject to international humanitarian law (aka the laws of war) (New York Times article). But a true understanding of international law tells us that international human rights law standards are not discarded when international humanitarian law applies, albeit IHL is the lex specialis; what is her position on this and how it relates to domestic law?
It is to be expected that questions about international law and international human rights law’s relationship to the US constitution will arise in the course of Kagan’s confirmation hearings, and it will be interesting to see how she approaches the matter. The appropriate approach, I would argue, is to recognise the value in looking to international law for persuasive (and binding) guidance. My suspicion, however, is that admitting to such an approach might not be the smoothest path to confirmation for prospective Justice.

The Interlaken Declaration and the European Court of Human Rights

Last week saw the much anticipated Interlaken Conference on the Future of the European Court of Human Rights (conference website), intended to secure workable solutions for the future of the Court. The Court, which started as a part-time court working with a commission, is now full-time and has developed under the recently ratified Protocol No. 14 (which comes into force on 1 June 2010) in order to try to meet the very real challenges of resources and workloads. Those challenges, however, are not entirely resolved by Protocol No. 14 and further work is needed in order to try to ensure the stability and continuing operation of the Strasbourg Court as an important part of Europe’s human rights infrastructure. This raises questions as to what the role of the Court is: is it an adjudicative court that ought to focus mostly on resolving disputes and providing redress, or is it a constitutionalist court? Ought it to be both and, if so, is that a feasible objective? In this post I intend to outline some of the challenges faced by the Court, consider the extent to which this question as to role and function remains unresolved by Protocol No. 14, and consider how this debate might be relevant in the Interlaken process.
The European Court of Human Rights has four main formalised functions to hear inter-state complaints where they arise; to hear individual complaints where they arise and are deemed admissible; to provide Advisory Opinions when requested (Art.47, ECHR); to clarify interpretation of judgments and assess whether judgments are being abided by where requested by a super-majority of the Committee of Ministers (Art.46, ECHR). These are the formal functions of the court, however, and a mere recitation of them or even a detailed analysis of them does not answer the more fundamental question of what role the Court is intended to play.
It is commonly assumed that there is some tension between the Court’s roles as an adjudcative court in individual cases (albeit in a subsidiary manner as complainants must exhaust all domestic remedies first) and its role as a constitutionalist court for the Council of Europe. If the Court is primarily intended to carry out the former role then rules relating to admissibility, remedies, supervision of judgments etc… have an importance that must be jealously guarded. If, however, the Court also, or even primarily, has a constitutionalist role then what is important is not that every individual complainant would have her case heard and adjudicated upon, but rather that judgments of the court would outline and formalise (or ‘harden up’) the constitutionalist principles of the Convention. This kind of role does not require the Court to have particularly open admissibility rules or for every individual complainant to have satisfaction of some kind; rather it requires a more strategic kind of role in terms of case selection (not, one would think, entirely dissimilar to the certiorari decisions of the US Supreme Court)
While most superior courts in domestic jurisdictions carry out both of these kinds of roles without a great deal of difficulty, the European Court of Human Rights faces very particular challenges in doing so. First of all the Court was, until relatively recently, only part-time. Secondly, recent years have seen the expansion of the Council of Europe to more than 40 states from which complaints can flow. Thirdly, the Court was (and continues to be) under-resourced. Fourthly, the Court must deal with an enormous diversity of legal systems within its jurisdiction and to the extent possible master the relevant elements of domestic legal systems in order to effectively analyse the position of a complaint vis-à-vis the Convention. Fifthly, the Court has witnessed an enormous increase in complaints all of which have to be given at least an initial admissibility consideration even if the vast majority of them are never considered on their merits (for failure to be deemed admissible) leading to an essentially unmanageable workload. These five points (which might be boiled down to resources, scope and scale) are perhaps the main areas where the Court’s future—as either an adjudicative court or a constitutionalist court or both—looks vulnerable.
Protocol No. 14 represents an important, although on its own insufficient, attempt to tackle these difficulties. Protocol 14 introduces some important changes into the way in which the Court works especially in relation to admissibility decisions which can now be made by single-judge chambers with the assistance of a rapporteur. In addition, Protocol No. 14 provides that if a single-judge chamber finds that an application is ‘not inadmissible’, forward it to a committee of three judges. The committee of three judges may also make decisions as to admissibility. In addition, these three-judge committees may deliver a judgment in the case if it determines that it is one where the underlying question that arises is “already the subject of well-established case-law of the court” (Art.28, ECHR). The concept of ‘well-established case-law of the court’ is problematic, especially as the ECHR does not operate a system of stare decisis that we are used to in the common law world and may well result in less cases progressing ‘up’ to the seven-judge chambers or, indeed, the Grand Chamber where arguably the most constitutionalist decision making takes place. In addition, Protocol No. 14 introduced the principle that the Court can reject an application where “the applicant has not suffered a significant disadvantage” (Art. 35(3) ECHR).
In some important ways, then, Protocol No 14 attempts to deal with one of the most serious challenges facing the Court from a practical perspective, namely the sheer volume of complaints and the need for effective case management as between the different compositions of the Court. However, these mechanisms as introduced seem also to be focused on trying to maintain the dual functionality of the Court as adjudicative and constitutionalist. This is notwithstanding the concerns expressed by some commentators that the new admissibility requirement and the ‘well-established case-law of the court’ principle might undermine the capacity of the Court to carry out either or both of these functions well. In a new book coming out this summer entitled The European Convention on Human Rights Act: Operation, Impact and Analysis (Round Hall/Thomson Reuters, 2010, forthcoming) which I co-authored with Dr. Cliona Kelly of NUI Galway, we deal very briefly with these concerns (brief merely because the book’s focus is primarily domestic). We argue that in fact the changes introduced by Protocol No. 14 will allow for the continuing performance of both kinds of functions and, inasmuch as Protocol No. 14 increases the role of the Court in supervising judgments, it may “accelerate the hardening of norms within the Convention system and, combined with the now facilitated accession of the European Union to the Convention, greatly advance the process of regional constitutionalisation” (Chap.6).
However, there is genuine concern that the reform of the Court in order to secure its future will result in the sacrificing of one or another of those functions. This is well demonstrated by the following extract from a statement submitted from 156 different NGOs:

The European Court of Human Rights must be a strong Court, accessible to individuals claiming violations of their Convention rights when they have had no effective redress domestically. It should be a Court which will give a reasoned decision on whether a case is admissible, or a reasoned judgment on the merits of a case, without undue delay. The Court should be given the resources by states to function properly, and not at the expense of other Council of Europe human rights mechanisms.

This is no lean demand, and it is one that in my view clearly expresses a desire for the Court to continue to carry out both adjudicative and constitutionalist functions. It asks for the Court to be accessible to individuals who have no domestic redress and to give reasoned decisions without undue delay: an adjudicative and a constitutionalist demand. The submission goes on to call for the strengthening of national enforcement of the Convention. This would enhance the Convention’s constitutionalist character and relocate adjudicative functions under Convention principles to the domestic sphere in a manner that is entirely in-keeping with the subsidiary nature of the regional human rights regime and indeed with the idea of the Convention as a constitutionalising—or if one would prefer, harmonising or synergetic—document. The group of NGOs then goes on to make the following exact proposals:

Any reforms to the European Court of Human Rights should ensure that:
• the fundamental right of individual petition is preserved and not further curtailed;
• there is an efficient, fair, consistent, transparent and effective screening of applications received, to weed out the very high proportion (around 90 per cent) of applications that are inadmissible under the current criteria;
• judgments are given within a reasonable time, particularly in cases where time is of the essence, or that raise repetitive issues where the Court’s case law is clear and those that arise from systemic problems;
• the Court is given adequate financial and human resources, without adversely impacting the budgets of other Council of Europe human rights mechanisms and bodies;
• solutions to the problems faced by the Court, including the varied reasons for inadmissible applications, are devised on the basis of informed analysis, transparent evaluation of both the root of the problems and recent and future reforms.

Again, these more exact and specific requests display a desire for the Court to be both adjudicative and constitutionalist. The reality is that continuing with that duality of function is resource-heavy and it is right to argue that the Court must be fully resourced including by the continuing development of research units, rapporteurs, clerks etc… and the continuing cultivation of a body of expertise in Strasbourg both for the benefit of the Court and for the benefit of the legal systems to which people working in Strasbourg might subsequently return. However, no amount of resourcing will bring about the concrete enforcement of the Convention at domestic level and that is necessary for the Court and Convention to work. This is something that Interlaken can not secure; it must be brought about through domestic politico-legal action in every one of the member states (and some, inevitably, will need to do more than others). What is certain, however, is that Interlaken and the process that follows it must confront this question of role and function and, if the duality is to be maintained, must frame its proposals for the future of the Court with the demands of such duality fully in mind.
On Friday the Interlaken Declaration was issued. Although it contains a lot of material of interest (much of which is really about nuts-and-bolts resourcing of the Court), for the purposes of this post it is worth noting that individual petition is reaffirmed as a “cornerstone” of the Court and Convention. That notwithstanding, there is also a call for further ‘filtering’ to be introduced which suggests that the focus within the Court itself—and certainly within the larger compositions and the Grand Chamber—will be on cases that present opportunities for constitutionalist decision-making; a development that may not please those who believe in the importance of the Court’s adjudicative role if it results in the watering-down of the principle that all applications will be considered to at some degree.

(Cross-posted at Human Rights in Ireland)