Jackie Jones addresses the United Nations on women’s human rights

Posted on

By Jackie Jones:

Professor Jackie Jones was one of only 9 representatives of all UK Non-Government Officials (NGOs) speaking at the United Nations in Geneva.

Professor Jones was author of the United Nations Wales Shadow Report on Women’s Human Rights that has been submitted to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW).  The Shadow Report compiles  evidence from the Third sector (NGOs) on how well the Welsh and Westminster governments are complying with their international law obligations.

The report highlights some serious gaps, including, closure of courts, rape crises centres, lack of funding opportunities and increases in violence to name but a few. It also calls for transposition of the CEDAW into domestic law to ensure no regression in rights for women in the future. The report has been received by the Committee and is on its website.

CEDAW monitors the implementation of the Convention on Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979).  Countries who have become party to the treaty (States parties) are obliged to submit regular reports to the Committee on how the rights of the Convention are implemented.

During its sessions, the Committee members discuss these reports with the Government representatives and explore with them areas for further action by the specific country. The Committee also makes general recommendations to the States parties on matters concerning the elimination of discrimination against women.

In this instance, Jackie Jones was giving evidence to the pre-session of CEDAW. The Committee heard evidence about the compliance of the UK with its human rights obligations towards women.

Professor Jones focused on domestic transposition/implementation of CEDAW into UK law – and the effects of devolution on women’s unequal position in the 4 nations – as reflected in British society, policy and law.

 

For more information about the process, please see:

https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx

Jackie Jones’ submission heard at the Supreme Court of Moldova

Posted on

By Jackie Jones:

In July, Professor Jackie Jones submitted an amicus brief on behalf of the European Women Lawyers Association in support of the Women Lawyers Association of Moldova. This was then received and considered by the Supreme Court of Moldova.

The case concerns women lawyers right to the same treatment in relation to payment into the health insurance system while on and after maternity leave. Female lawyers are treated differently to other self-employed female workers.

The amicus brief is based on international and domestic constitutional laws to equality and dignity. It argued that Moldova was in breach of its international law obligations and discriminated against women in the lack of provision of health insurance for women lawyers whilst on maternity leave.

The amicus brief was accepted into evidence by the Court, yet the case was lost, denying the remedy suggested by the national equality body that ruled in the Association’s favour.

The Association now plans to appeal to the United Nations CEDAW Committee. Professor Jones will remain involved in the process. 

Note: Amicus briefs are legal documents filed in court appeal cases by non-litigants with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider.

Second CALR Staff Research Seminar

Posted on

A second staff research seminar was held on 19 March 2018 and featured two presentations from members of the International Law and Human Rights Unit.

***

Noëlle Quénivet, Associate Professor in International Law and Head of the aforementioned Unit, started her presentation entitled ‘Is Duress a Successful Defence for Children Having Committed War Crimes?’ by explaining that often child soldiers are viewed as victims although they are involved in international crimes. Scholars argue that if they were to be prosecuted they would not be found guilty, notably because they would be able to use a number of defences to negate and/or excuse culpability. One of the most common defences cited in literature is duress which is defined as the compulsion of a perpetrator to commit a crime because he/she fears for his life and limb, the threat stemming from another person.

Noelle contended that the strict application of the requirements of duress actually leads to the conclusion that this defence cannot be successfully invoked by child soldiers. This is mainly due to 1) the lack of a contextual approach in the application of the defence of duress and 2) duress being viewed as a justification rather than an excuse. A potential solution would be to understand duress as an excuse and integrate some contextual elements into the elements of this defence.

First, it recognises the wrongfulness of the act whilst stressing that there is no criminal intent. This would ensure that the gravity of the acts children commit is recognised whilst the children’s lack of criminal intent is acknowledged too. Indeed, research shows that children who commit international crimes are not devoid of moral values and in fact feel culpable.

Second, the defence of duress would not require sacrifice or martyrdom. Duress as a justification requires the act to cause no greater harm than the harm that would be inflicted upon the perpetrator. Understood as an excuse, the defence of duress would mean that children only need to make an ‘understandable choice’.

Third, it would acknowledge the lack of autonomy of the child soldiers. After all excuses focus on the actor whilst justifications focus on the act. In the case of child soldiers it would mean understanding the limits of their agency as they are reduced to a tool by means of which another person commits murder. Yet, as Noelle explained, even such a broad understanding of the defence of duress does not offer a comprehensive defence to children who have perpetrated international crimes. In other words, child soldiers are unlikely to be able to avail themselves to this defence.

***

The next speaker, Amy Man, Lecturer and PhD Candidate at the Bristol Law School, presented a paper on ‘New Players and Old Rules: A Critique of the China-Ethiopia and China-Tanzania Bilateral Investment Treaties’ which is due to be published in late 2018. Amy began by explaining that international investment agreements which are formed by specific chapters in free trade agreements, regional agreements and a complex network of bilateral investment treaties (BITs) are often silent on social issues such as human rights.

The neoliberal assumption is that investment treaties boost the economy of developing States. However, this is still unconfirmed. The reality is that increasingly such treaties have a negative impact on the society of developing States. Indeed, such treaties create competing obligations in the name of investment protection. These obligations often lead to the host State to freeze its legislation (which is known as ‘regulatory chill’) to avoid disputes with foreign investors. This ‘regulatory chill’ prevents the host State from introducing labour and welfare laws as well as from development policies and measures that comply with the concept of sustainable development.

Amy argued that China, as an emerging and prominent actor in international investment law, is an innovator inasmuch as it has included the principle of sustainable development in bilateral investment treaties whilst recognising the importance of economic development and mutual cooperation. The most notable example is the China-Tanzania BIT. Under this BIT, the concept of sustainable development is explicitly referenced in the preamble, which highlights that the substantive provisions in the Agreement need to be read from the perspective of sustainable development. Furthermore, under the national treatment principle articulated in Article 3(2), the host State (which is most likely to be Tanzania) is allowed to adopt measures to promote local entrepreneurship. In contrast, the principle of national treatment is conspicuously absent from the China-Ethiopia BIT. Since Tanzania is the main recipient of capital in that particular relationship, the inclusion of this provision is remarkable as it demonstrates China’s more nuanced approach to its host partners. It also alludes to a Chinese approach to investment that is more in line with the concept of sustainable development, which is based on intergenerational equity.

Amy argued that incremental changes, such as Article 3(2) in the China-Tanzania BIT, in Chinese investment agreements are a step in the right direction. However, China is only one actor in a complex regime. The more traditional capital-exporting actors in international investment law must also develop an approach based on sustainable development, which needs to be evident in their investment agreements.

Noelle Quenivet Lectures at the International Criminal Court Summer School in Galway

Posted on

By Noelle Quenivet:

For the second year, Dr Noelle Quenivet, Associate Professor in International Law at Bristol Law School, was invited to lecture on ‘Prosecuting Crimes of Sexual Violence’ at the International Criminal Court Summer School organised by the Irish Centre for Human Rights of the National University of Ireland Galway.

The prestigious and long-standing school opened on 18 June with a public lecture by Judge Solomy Balungi Bossa of the International Criminal Court. The school also offered a special session on Africa and the ICC in collaboration with the Institute for Security Studies.

Besides, as previous years, eminent scholars, including Professor William Schabas who founded the school, and practitioners such as Dr Fabricio Guariglia (Director of the Prosecution Office of the ICC) and Peter Robinson (Defense Counsel at the Mechanism for International Criminal Tribunals), shared their knowledge and expertise with LLM students, PhD candidates and practitioners, all specialised in international criminal law.

Noelle Quenivet offered the participants a tour of the jurisprudence of the international criminal tribunals, focusing on the ICC and especially the latest case, Bemba, that has signalled the Court’s willingness to condemn sexual violence perpetrated against men as rape.

Noelle Quenivet explained that she was particularly pleased with this groundbreaking case, as in her PhD thesis, (later published in 2006 as a book Sexual Offenses in Armed Conflict and International Law), she had already argued in favour of a gender-neutral definition of rape and sexual violence. Despite the fact that the defendant had been acquitted on appeals she stressed that the jurisprudence on the definition of sexual crimes remained unaffected by the latest judgment.

 

Dr. Young presents Interdisciplinary Research on Organized Crime Control to the Ministry of National Security, Jamaica

Posted on

By Mary Alice Young:

Dr. Mary Alice Young (Law) and Dr. Michael Woodiwiss (History) are in Jamaica today to conduct a series of evidence-informed research presentations with members of the Jamaican law enforcement and policy making communities (the project has been fully funded by ACE).

Based on empirical research carried out in January 2018 in Kingston (one week before Jamaica’s government declared a State of Emergency in Montego Bay due to a rise in firearm deaths), the two UWE staff will present their research findings to law enforcement officers in the Jamaica Constabulary Force, and also in separate meetings to ministers from the Ministry of National Security.

They will also be presenting a preliminary paper for consultation, with a view to informing future policy making in the area of organized crime control in small island and developing states.

Professor Chinkin gives the Annual Lecture of the Welsh Institute for International Affairs (co-sponsored by UWE)

Posted on

By Jackie Jones:

The Annual Lecture of the Legal Affairs Committee of the Welsh Centre for International Affairs took place on 3rd May 2018, co-sponsored this year by the Law School. Professor Christine Chinkin, Director of the Institute for Gender, Peace and Security at the LSE, spoke about the Council of Europe Istanbul Convention: the negotiations, the sticking points and the value added of the newest regional convention to eliminate violence against women and girls. She also mentioned the ongoing campaign to pass a UN convention to eliminate violence against women and girls, which Prof Jackie Jones is heavily involved in – having just published a co-edited book making the legal case for a new treaty (with Prof Rashida Manjoo). Jeremy Miles, AM, Counsel General for Wales, was present to listen to the added value for Wales outlined by Prof Jones – lobbying to encourage Wales to pass legislation complying with the provisions of the Istanbul Convention. Wales is a world leader in eliminating violence against women, passing world-first legislation in 2015 and appointing National Advisors to eliminate violence against women. The entire lecture was recorded by BBC Radio.

Professor Chinken speaking next to WCIA banner

Dr. Philippe Karpe attends Centre for Applied Legal Research as Visiting Scholar

Posted on

By Noelle Quenivet:

Between 10 February and 10 March 2018 the Centre for Applied Legal Research hosted Dr Philippe Karpe as Visiting Scholar. Dr Philippe Karpe is a senior legal researcher and international expert working for CIRAD, a French agricultural research and international cooperation state organization working for the sustainable development of tropical and Mediterranean regions. Worldwide there are 850 CIRAD researchers assigned in 40 countries involved in an array of projects. Dr Karpe is currently posted in Nairobi, Kenya. Invited by the International Law and Human Rights Unit and the Environmental Law Research Unit it was a pleasure to have him with us. Dr. Karpe took part in a wide range of teaching and scholarly activities offered by the Bristol Law School, as well as pursuing his own research on indigenous people and the management of natural resources.

By education Dr Karpe is a public international lawyer who studied at the universities of Nancy, Paris 10 and Strasbourg in France and holds a ‘habilitation à la direction de recherche’ (Accreditation to supervise research) – a French post-doctoral degree allowing him to supervise PhD students. Besides supervising PhD candidates at CIRAD he also teaches at the universities of Strasbourg (France) and Hokkaido (Japan). The bulk of his work however consists in planning and running projects with and for international organisations (eg United Nations Development Programme-UNDP, World Bank), NGOs (eg Rainforest Foundation Norway, Organisation des Nations Autochtones de Guyane-ONAG) and other stakeholders applying his expertise on governance and rule of law, including indigenous peoples’ rights (general and particular rights, especially land rights, forest’s and carbon’s rights, forest users’ rights, women’s rights), socio-environmental safeguards, sustainable forest management, rural and forest land tenure (including for the implementation of the Voluntary Guidelines on the Responsible Governance on Tenure of Land, Fisheries and Forests in the Context of National Food Security-VGGT), participative management of lands (including the use of artificial intelligence), participative mapping, institutional arrangements and stakeholder commitments (civil society, forest communities, etc.).

Dr Karpe led workshops on three modules (‘Natural Resources’, ‘Corporate Governance and Corporate Social Responsibility’ and ‘European Environmental Law and Policy’) offered on our LLM programmes. In each of these modules he shared with the students his extensive knowledge and practical expertise in the relevant fields. He brought law to life by using concrete legal problems he had been confronted with in his own field work.

For example, in the module ‘Natural Resources’ led by Prof Jona Razzaque Dr Karpe produced real forest legal texts that were enacted by regional, national and local public authorities. The students could thus see how forests are protected (or not). This helped the students to better understand the practical application of the law as well as its (sometimes unintended) consequences on local populations.

In the module ‘Corporate Governance and Corporate Social Responsibility’ the students were asked to engage in a discussion on ethical aspects of activities carried out by multinational enterprises using real contracts that were agreed upon between indigenous people and organisations. Passionate discussions in this workshop run by Dr Karpe and Dr Sabine Hassler on (for example) the protection of traditional knowledge in India and the protection of the intellectual property rights of the indigenous peoples ensued.

This inquisitive and practice-oriented type of engaging with the students was again displayed in the workshop on the EU Common Agricultural Policy (CAP) in the module ‘European Environmental Law and Policy’. Together with the module leader, Christian Dadomo, Dr Karpe challenged the students to analyse the current CAP reform and its interface with the environment and, more largely, the future shape of the society. He notably discussed with the students the negative and positive connections between agriculture, the society and the environment (eg pollution, deforestation, drying up of rivers, etc) and how the reform of the CAP deals with these issues. Dr Karpe’s visit was a great asset to our practice-led and student-centred teaching culture on the LLM programme at UWE.

Throughout his stay at UWE Dr Karpe also took the opportunity to attend a number of external engagement events organised by CALR such as the Brexit and Corruption talk by Dr Lorenzo Pasculli and the Brexit and Trade Relations panel discussion. As a scholar working often far away from European legal issues he particularly enjoyed this insight into one of the most commonly debated issue in the UK: the withdrawal of the UK from the European Union. In this context, he sincerely enjoyed the great variety and quality of the different UWE’s opportunities to develop and enrich the knowledge on many scientific and political vital present concerns.

Dr Karpe had the opportunity to deepen his present academic research especially on Harmony with Nature, the Commons, the indigenous peoples and the farmers by collecting many references and academic articles on the UWE’s virtual library and by daily discussions with colleagues on a variety of topics, some of them relating to research methods and methodology (eg epistemology, social-legal studies and critical legal studies). Furthermore his stay at UWE gave him the opportunity to consider some new academic concerns such as conflict, war and the humanitarian legal framework.

On two occasions Dr Karpe presented his work to UWE staff and students. At a first event he shared with us his practice-based research and at a second reflected upon his work as a lawyer in the field. A roundtable on ‘The Future of the Commons’ was organised on 28 February 2018 to discuss the definition of the concept of the ‘Commons’ and develop the ‘Commons Thinking’. Dr Karpe’s intervention focused on his own experience of the commons in the African context.

For example he was once confronted with what appeared to be an odd situation in a village. The local population did not seem to be related or linked, the concept of society did not seem to apply either and it appeared that each person was working for him/herself. A positive, classic lawyer would have undoubtedly failed to realise that there was something beyond that and that in fact these individuals were connected by a common, shared ‘space’. Dr Karpe then questioned whether the concept of the commons was an answer to this practical/technical problem which could be turned into a political concern. He posited that current values do not conform to aspirations of justice and that contemporary laws do not help support, protect and promote the life of individuals who live in such a situation. Yet, as a lawyer, his job is to establish justice between people and to find solutions to concrete technical as well as political problems. Thus in his view the concept of the Commons appear to be the most suitable tool. However, when trying to write the law of the Commons the lawyer faces the harsh reality of having to acknowledge that law simply is not the most appropriate tool. For example, law is usually split in different areas such as contract law, family law, property law, etc and yet the Commons transcend these separations. Also the Commons are a ‘space for development’ as they create opportunities for changes and evolution. This all makes it difficult to freeze the Commons into law.

Dr Karpe argued that for him it was crucial that human rights be at the centre of all these activities. Law should be created around human rights. He also challenged the vertical relationship of law whereby constitutional law sits at the top of the hierarchy of any national legal system. Whilst he admitted that this might sound revolutionary as lawyers struggle to understand law in anything but hierarchical terms and categories he emphasised that only a horizontal understanding of the law could avoid corrupting the Commons. As he explained his support for the Commons he however warned that the concept of the Commons might in specific contexts be used as a new form of colonialism enabling State and organisations, for example to deny rights to indigenous people on the basis that under the principle of non-discrimination and shared access to resources no special rights should be given to them.

Last but certainly not least Dr Karpe gave a talk entitled ‘Has the Wandering Lawyer Reached his Destination? – The Adventures of a Lawyer Working in the Field’ which gave him the opportunity to reflect on his work. It was an enlightening talk as Dr Karpe shared with us over 25 years of research in Cameroon, the Central Republic of Africa, Madagascar, Democratic Republic in Congo, Gabon, etc. He kicked off this presentation by asking ‘What am I? What is my purpose as a lawyer?’. Looking at the type of jobs he usually carries out he acknowledged that his work tends to touch upon a range of topics (eg weddings, contracts, etc) though it does focus on forestry. Yet, as a human being he questions what his real role is. For him, he should be promoting justice and more specifically social justice.

As a result he does not question the abstract internal coherence of the texts, the content of texts or their effectiveness and efficiency as such. Rather, these are only steps in this research work. The basic research question is ‘under which conditions may the lawyer contribute to improving the living conditions of the local population?’. The objective is thus to understand how law can contribute to improving the living conditions and ensure the protection of a certain idea of a community of life. For this, four assumptions must be made: 1) laws and rules may contribute to social change and lawyers are thus useful; 2) laws and rules have a political function; 3) there is a community of life and 4) the function of laws and rules is to guarantee social peace. Likewise Dr Karpe conceded that there were a number of challenges: 1) working with disadvantageous groups such as indigenous people, rural women, etc; 2) the status of users’ rights in developing countries and 3) the status of peasants. All these challenges relate to various aspects of vulnerability and deprivation of rights. With this in mind the lawyer must think about how he can have a positive impact on society.

In Dr Karpe’s eyes the most suitable way to understand societies and to then be in a position to support them is to conduct extensive research in the field. This means using involved, immersed and applied research techniques so that a concrete and continuous contact with the relevant people can be established.

Dr Karpe also stressed that the nature of the field obliges all actors to adopt an interdisciplinary approach and so he works with economists, anthropologists, biologists, pharmacologists, etc, bearing in mind that each person brings his/her own views and perceptions of the situation and that all these views as well as methodologies need to be integrated into one’s work. Does that mean that the lawyer disappears? Dr Karpe stressed he remains a positive lawyer (one that is trying to find the best solution to a problem that affects people), a humanist (there is no doubt a need for empathy and humility in these circumstances) and a ‘questionnaire’ (a person who asks questions) and thus a ‘wandering lawyer’. In his opinion this ‘wandering lawyer’ has a fundamental political and moral obligation to remember, think, defend and realise the key destiny of a lawyer: social justice. As a result he/she must revise his/her vision of the law, its essence, substance and form. Four main research themes derive from this stance towards law and the role of the lawyer: 1) the commons, the harmony between nature, humanity and values (justice); 2) the nature and the content of the law (juridicity); 3) the tools for implementing the law and 4) the methodologies of knowledge of law.

Dr Karpe presented some of the results of his reflection, explaining that the law should not be in the form of specific provisions, that the new ‘Common Law’ should correspond to a right of communion, a transcendental right and that the new Common Law must correspond to an idea, that of a community of life. Under the Common Law individuals enjoy the same rights and there is no hierarchy of rights. That being established, Dr Karpe questioned the way law is created, articulating the idea that law is often crafted by a certain type of persons for a certain type of person and for a specific objective and that consequently law may not be really that ‘common’ in fact.

As Dr Karpe left UWE he had made contact with many colleagues in the Bristol Law School and hoped to be able to involve these colleagues in his work. He proposed to establish an opened think-thank on the Commons, the Wandering Lawyer, Law and the Juridicity, named: “the Rainbow Team”. Discussions were also had about future collaboration notably in the form of common projects relating to the protection of the environment, biodiversity and conflict. It was with regret that we had to let Dr Karpe go back to his work as it was such a pleasure to talk to him on a variety of topics.

 

Guest Talk – Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict

Posted on

By Noelle Quenivet:

The International Law and Human Rights Unit of the Bristol Law School welcomed on 14 March 2018 Dr. Jane Rooney, Lecturer at the University of Bristol, who presented a paper on ‘Article 2 of the European Convention on Human Rights in Armed Conflict’. Dr. Rooney began by explaining that she was challenging the commonly held view that human rights law (and the European Convention on Human Rights more particularly), subject States to a higher threshold than international humanitarian law.

Continue reading “Guest Talk – Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict”

Law Student Research Report on Rape and Sexual Assault

Posted on

On 20th March, a student authored research report was presented to Rowan Miller, who is CEO of SARSAS (Somerset & Avon Rape and Sexual Abuse Support). The authors are all undergraduates on the LL.B Sexual Offences and Offending: Criminal Justice Responses module. Each year, student volunteers from the module research and write a report for SARSAS staff which explains topical legal policy issues and reforms. During the presentation, Rowan noted how useful and impactful the report will be for her staff and that previous research reports had been widely read by people from across the sector.

The report is an excellent example of how students, working with academic colleagues, can engage with the world outside of UWE and apply specialist, socially useful knowledge to the work of local organisations.

The report authors are: Karishma Boodhun, Charlie Ellis, Abigail Laborero, Hayley Lewis, Molly Mackenzie, Momin Mohamed and Annabelle White.

The report was edited and fact checked by Phil Rumney, Ed Johnston and Anneleise Williams.