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Mobilising for a Just World: Legal Mobilization for Whom?

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Both scholars and practitioners engaged in either researching or advancing legal mobilization recognize that law can be used to guide legal interventions seeking to trigger transformative justice. A persistent question faced by legal mobilization practitioners and researchers alike is: who are we mobilizing for, and with whom? As a member of the Legal Mobilization Platform (LMP), I sought to answer this question during the platform’s launch on 12 January 2023 in The Hague.

Who takes the lead in legal mobilization claims?

It should be a standard response that any legal mobilization claim should be led by individuals and organizations who experience violations. However, this is not always the case. The structure of the legal profession often obscures the agency of those whose rights have been violated. Contradicting the approach of Systemic Justice, those who are centred in strategic litigation are often the NGOs and law firms – however well-intended – that are officially presenting a particular claim, rather than the communities and individuals affected by violations.

As a researcher wanting to understand these dynamics better, but also as someone with a long history of advocacy in my earlier career as a human rights lawyer, it has always been important for me to understand the objective of a legal mobilization claim and to critically reflect on my role in it.

The Legal Mobilization Platform (LMP) is a large and broad platform of researchers and practitioners, where legal mobilization researchers and practitioners can interact with each other in a dynamic and reflective shared space. From the overwhelming responses we have received thus far, there appears to be a very strong interest in better understanding and reflecting upon which forms of legal mobilization work and which don’t to trigger transformative change. To give an example, LMP-member Systemic Justice orient their work around “community-driven litigation”. Their goal is

…to radically transform how the law works for communities fighting for racial, social, and economic justice. Centring affected communities in joint litigation, Systemic Justice will help broaden access to judicial remedies for those fighting for justice and equality. This will help dismantle the power structures that underpin and fuel racial, social, and economic injustice.

 

People can certainly be both a researcher and advocate. However, these roles are different: what researchers aim for are solid arguments based on a convincing methodology; for practitioners, the aim is for transformative change. Without being clear what one’s role is, one can end up being of little use to either scholars or to activists. Nevertheless, for both researchers and practitioners, being a critically reflexive researcher or a conscientious advocate may involve standing up for cause, just as much as it may be necessary to step back, allowing others to take up the research or advocacy space and above all supporting others, or what Aminata Cairo refers to as “holding space”.

 

Recognizing one’s privilege

The questioning of who represents what goes even further than this. Before deciding whether one has the legitimacy to either research or represent a cause, it is critical for one to recognize one’s privilege. Critical scholars problematize this from the fields of critical race studies, critical feminist studies and critical legal studies, such as TWAIL. From a methodological standpoint, it is critical to recognize one’s positionality in relation to both the issues and people that are the focus of research, as well as the importance of praxis.

However, even more crucially, social justice activists frequently insist on questioning who, and in what manner, individuals can credibly speak out on issues such as the Dutch slavery and colonial heritage, which is currently a topic of much debate in the Netherlands and a focus of the LMP.

 

The challenges of patriarchy, racism, elitism, and anthropocentrism

Apart from crucial matters of ownership and positionality, there are myriad institutional structures and systems that can pose challenges for legal mobilization practitioners to navigate. To begin with, the patriarchal character of law, legal process and systems, including universities and the legal profession, structurally privileges men. But this is not the only problem. Patriarchy also corrodes the way institutions operate, with a tendency towards non-collaboration, individualism, and a high level of competitiveness. Similarly, the racialized character of law, legal processes, and systems structurally privilege white people. We see this problem in efforts to accomplish gender diversity and inclusion, within the public sector, courts, and universities where racist stereotypes persist, and even within NGOs, as Doctors Without Borders has acknowledged.

Alongside patriarchy and racism is the elitist character of the law and legal process that systemically protects the interests of a handful of affluent people, the so-called 1%, allowing some individuals to acquire massive opulence that can eclipse the GDP of entire nations, while allowing ample opportunities to avoid the payment of tax, hindering the equitable distribution of wealth.

And finally, the law and legal process tend to be highly anthropocentric, which means that they structurally privilege humans and disregard non-human interests. Here we are talking about the rights of nature, which researchers such as Dr. Daphina Misiedjan focuses much of her research on.

All of this involves (or at least it should) a great deal of legal learning, which Karim Knio and Bob Jessop recognize are part and parcel of a pedagogical approach to understanding how crises, whether they be of a financial, social, or political nature, are construed and managed.

 

More than litigation

Finally, legal mobilization is much more than litigation alone. As Eva Rieter and I have argued, it is about many different uses of law, incorporating other confrontational forms, including, but not limited to, litigation, e.g. protests, corporate shaming, civic boycotts. But legal mobilization can also adopt cooperative forms, such as participation in policy-making processes, training courses on systemic racism awareness, and partnerships with municipal and national government actors and law enforcement officials to develop, monitor, and implement policies for tackling systemic racism.

In all respects, solidarity is key. Solidarity involves first and foremost, listening to those affected by racial, climate, and socio-economic injustice, which is not always easy for researchers and practitioners alike as systemic justice involves one fundamentally questioning liberal values that are dominant both in systems of law and governance, not to mention economic relations.

 

The future of legal mobilization

So how should one take these reflections forward in practice? A key strategy for tackling all of these dilemmas in legal mobilization practice has been demonstrated by Amsterdam-based member of the Platform Public Interest Litigation Project or PILP, which applies a broad understanding of strategic litigation and asks, “Where does it hurt?”.

Another example of going beyond litigation is De Zwart Manifest (“Black Manifesto”), which recognises that, according to the Dutch Constitution, “everyone in the NL is treated equally in equal circumstances”. However, “the reality is different. In the NL there is a racialized order”. In other words, the claim of the manifesto is not to champion equality, but rather to redress systemic inequalities, or what Gloria Wekker, a member of the Legal Mobilizational Platform, refers to as “radical equality”.

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies and, together with Margarethe Wewerinke-Singh at the University of Amsterdam Law School, a member of the Steering Group of the Legal Mobilization Platform

 

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When should you ‘Call It What It Is’? Enabling disclosure of sexual violence by Chris Dolan and Onen David

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The international criminal law (ICL) system can only hear and describe a tiny fraction of what people experience, particularly when it comes to sexual violence. The ICL system not only makes it difficult for victims to disclose their experiences, but often misplaces, deprioritises and erases the sexual elements of violence under other headings such as ‘torture’ and ‘inhumane treatment’. This is what inspired ‘Call It What It Is’, a campaign designed to enable victims to freely testify in a system where sexual violence is better articulated.

Back in 2009, when the Refugee Law Project at Makerere University in Uganda ran its first-ever workshop for male refugees on the topic of sexual and gender-based violence (SGBV), a male Congolese workshop participant commented at the close of the day that ‘it has happened to all of us’, referring to having been subjected to conflict-related sexual violence. Similarly, a Somali participant reported that ‘if it happened to me, I would have to commit suicide’.

Their use of the word ‘it’, and their assumption that we (as social workers and refugee rights advocates) would somehow understand which of the many forms that ‘it’ (sexual violence) can take they had experienced, epitomises the yawning gap between people’s lived experiences, how they talk about those experiences, and definitions and the language available in legal systems intended to bring justice to victims. At present, the international criminal law (ICL) system for prosecuting perpetrators specifies only a handful of the multiple forms that sexual violence can take. The Rome Statute of the International Criminal Court refers to “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”[1].

It is the need to specify further the forms that might be considered under the catch-all “any other form of sexual violence of comparable gravity” that gave rise to the ‘Call It What It Is’ campaign, launched in 2019 by The Hague-based Women’s Ik1-1024x515nitiatives for Gender Justice. The key premise of the campaign is that, if survivors of SGBV are to get the support they need, it is imperative to call and describe a range of forms of violence as ‘sexual’. Second, and related to the first, for each victim/survivor, it is important to be able to name which of the numerous possible forms of sexual violence they have actually experienced. This is in order to allow correspondingly informed and appropriate responses that consciously sidestep the hierarchy of forms of sexual violence. Assumptions that rape is both the most important and most prevalent form of sexual violence are reflected in legal frameworks and service providers alike and are at the heart of this hierarchy.

The campaign is catalysed and coordinated by the Women’s Initiatives for Gender Justice, with varied contributions from more than 500 survivors. The collection of these was supported by dozens of organisations, including the Refugee Law Project which ran focus-group discussions. The campaign is raising the definitional bar for international criminal lawyers in general and the International Criminal Court in particular. The Civil Society Declaration developed as part of the campaign gives survivors and allies a new tool to deploy in the search for justice, calls for an end to impunity of perpetrators and an end to the inaction that is characteristic of many self-styled ‘responders’ in the fields of sexual violence.

Calling ‘it’ what it is cannot be a politically neutral process, however, and this raises particular challenges for institutions. ‘Rape’ as a ‘weapon of war’, laden as it is with a range of unevidenced assumptions about prevalence and gendered distribution of harms, is not an adequate descriptor of the complex universe of sexual harms that people, whether male, female, or gender non-conforming, experience in conflict settings. Establishing a more comprehensive understanding also demands a corresponding diversification of medical, psychosocial and legal services for the survivors and use of broader terminology to encompass ‘sexual violence [rather than only rape] as a weapon of war’.

The Refugee Law Project’s experience is that this diversification is possible. Back in 2009, no individual male refugee whom we were working with would identify himself in public as a survivor of conflict-related sexual violence. Ten years later, the male survivor support group Men of Hope was able to pull together 310 male refugee survivors in Kampala alone for the International Day for the Elimination of Sexual Violence in Conflict. Just two months earlier, their leader, Mr Aimé Moninga, addressed the UN Trust Fund for Victims of Torture in Geneva.

These successes have also taught us a lot about when not to call it what it is. The ‘When’, ‘Where’, ‘Who’ and even ‘Why’ of enabling disclosure of sexual violence—of making it possible for survivors accurately to call it what it is—has to be viewed as a complex process. Disclosure cannot be scripted or predicted. For some, the ‘When’ may be months after the incident. For others, it may take decades. For very few will it be within the 72 hours that Post-Exposure Prophylaxis demands to try and prevent the transmission of HIV.

The ‘Where’ of disclosure can also be a difficult choice: how do you balance the needs for access to support with the demands for privacy? In many refugee settlements in Uganda, for example, there are no spaces purpose-built to receive survivors needing help; meeting in a survivor’s home is rarely advisable as (s)he generally has not disclosed their exposure to SGBV to family members. Transporting a person to a supposedly neutral space, such as a hotel, carries further risks, as observers (which could include security forces or family members) are likely identify the vehicle and draw their own (sometimes dangerous) conclusions about what the survivor is doing sharing information with the institution associated with a particular vehicle.

‘Who’ should be asking such questions can be yet another conundrum when developing inclusive services for a broad spectrum of survivors. While it is often assumed that women wish to talk to women and men to men, it is rarely that simple. Ethnicity, age, prior reputation, or familiarity built through prior interactions can be even more important determinants of whether someone feels comfortable to talk to a particular person.

Last but not least, ‘Why’ would a person choose to ‘Call It What It Is’? Naming and disclosure are high-risk actions, the more so for people made vulnerable by their experiences and the context in which they seek to survive. In our work with forced migrants living in Uganda, the tangible benefits that make the biggest difference are the availability of high-quality medical referrals, treatment, and related psychosocial support. Without that, even after years of trust building, the risks that can arise from calling it what it is may continue to outweigh the benefits.

These considerations help us to see that, while for policy and law makers it is essential to start from a position of articulation, such as the Declaration, for survivors themselves, and for practitioners working to support them, calling it what it is may often be the end-point of a lengthy process.

[1] The Rome Statute of the International Criminal Court, Article 7.1 (g)

The ideas presented in this article were originally presented in the seminar “Call it what it is: when should we talk about conflict-related sexual violence?” at the ISS in cooperation with the Refugee Law Project.

About the authors:

19 02 26Chris Dolan is Director of the Refugee Law Project and Visiting Professor at the Transitional Justice Institute and INCORE at Ulster University. Onen David manages the Gender & Sexuality Programme of the Refugee Law Project. They are both based in Kampala, Uganda. They can be contacted directly on dir@refugeelawproject.org and gender@refugeelawproject.org

 

Onen David OngwechOnen David is the Programme Manager of the Gender and Sexuality Programme of Refugee Law Project, Makerere University. He has ten years of experience in working with Persons with Special Needs, identifying and offering inclusive physical and psychosocial support to survivors of conflict-related violence. Subsequently, he has significantly contributed to national and international advocacy and training of Police, Military, Health workers, UN agencies, and Civil Society Organisation on inclusive response to and prevention of conflict-related sexual violence, and on the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (First & Second Edition), including the annex on men and boys. Currently, Mr Onen is coordinating a Dutch funded project titled “Securing Refugee-Host Relations in northern Uganda through Enhanced Protection” .

 

Beyond the binary: negotiating cultural practices and women’s rights in South Africa by Cathi Albertyn

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In a recent lecture at the ISS, Professor Cathi Albertyn of the University of the Witwatersrand discussed how South African women navigate civil and customary laws to claim women’s rights within culture. Here she shows that women in South Africa do not seek to oppose culture and custom, but desire equality within their own communities.

Women in South Africa have long opposed discrimination in the family, in both civil and customary law. When the South African Constitution was negotiated in the early 1990s as the apartheid dispensation made way for a democratic political system, few expected the conflict that occurred between women pursuing equality and traditional leaders seeking to affirm culture and custom. Women fiercely opposed the traditional leaders’ 1993 call for customary law to be excluded from the equality guarantee in the Bill of Rights, arguing that all South Africans should be recognised as rights-bearing citizens in the new democracy. In the end, the 1996 Constitution created a plural legal system that recognised customary law, as the written and unwritten indigenous law regulating the lives of many black South Africans (especially in rural areas), and subjected it—together with all law—to the values and rights of the Constitution.

As with earlier forms of civil law, women suffered multiple inequalities under customary law, including unequal status and rights in the family, to inheritance and land, as well as participation in customary courts and positions of leadership. But in calling for equal rights, they did not seek to oppose culture and custom. On the contrary, organisations such as the Rural Women’s Movement were very clear that women wanted equality within their communities. In constitutional terms, they asserted both the right to equality (section 9 of the Constitution) and the right to participate in their culture (sections 30 and 31).

The relationship between equality and culture

How, then, should we think about the relationship between equality and culture? In the early 1990s, international law did not seem to be particularly helpful. Whilst the Convention on the Eliminations of All Forms of Discrimination against Women (CEDAW) set out important rights, it did not engage the cultural domain beyond calling for change. Rather, it seemed to imagine completely separate and hierarchical spheres of women’s rights and discriminatory culture. This tended towards a trumping relationship between women’s rights and a “cultural other”.

South African lawyers and policy-makers imagined a different relationship, drawing on the idea of “harmonising” customary law with the Constitution. Here they were influenced by the work of Women and Law in Southern Africa (WLSA), who recognised that women’s rights needed to be strengthened within their customary context. Their research pointed to ideas of custom and culture that were not bounded, rigid and unchanging, but more flexible and responsive to a changing world, and to women’s needs. In contrast to the official customary law, codified under colonial rule, the “living law” revealed practices in which women secured rights to inheritance, land, and so on.

This idea of “living law” in which women were agents within an evolving system, able to draw on multiple ideas to negotiate change from within, became a key idea in both legislative and judicial reform of customary law in South Africa.

For example, research in South (and southern) Africa which showed that women actively seek out rights in marriage, reaching to civil marriage when they could not secure rights in customary marriage, influenced the enactment of the Recognition of Customary Marriages Act in 1998. The RCMA granted women equal status and rights in marriage, while preserving customary forms of celebration and—controversially and directly against CEDAW—recognised polygamy.

In addition, Classens and Mnisi’s research into land rights—with land usually held by men—has uncovered practices in which women (particularly single women with children) are able to negotiate access to land in their communities by drawing on customary and constitutional values of equality, democracy, need and dependency.

Criticism of “harmonising” two law forms

These examples point to the possibilities of claiming women’s rights within culture, and that cultural rules and practices can accommodate and affirm women’s rights and gender equality. But this approach is not without problems, nor is it uncontested.

A major criticism by writers, such as Himonga (2005) and Nhlapo (2017), is that legislative and judicial attempts to “harmonise” customary law with the Constitution are too reliant on civil forms and lack the imagination to embed customary values in new legal forms. As a result, they have not always been followed within rural, customary communities.

Others, such as Nyamu-Musembi (2002), point to the problems of power and vested (male) interests within communities, suggesting that the potential for change is limited as long as women lack authority and voice. Even where women succeed, it is by conforming to gendered “stereotypes”, such as the “dutiful daughter”. Further, meaningful cultural change is often only possible with support from “outsiders”, such as local NGOS (Nyamu-Musembi, Hellum and Katsande 2017,).

Working from within is a contradictory and uneven strategy. However, it cannot, and should not be dismissed. Women need rights within their communities and “top-down”, trumping strategies, while important, can have significant limits. In the end, there is no magic bullet for women’s rights.

List of useful references
Catherine Albertyn ‘Cultural Diversity, “Living Law” And Women’s Rights in South Africa’ in Daniel Bonilla Maldonado (ed) Constitutionalism in the Global South (2013) Cambridge University Press 163-.
Aninka Claassens & Sindiso Mnisi-Weekes ‘Rural Women Redefining Land Rights in the Context of Living Customary Law’ (2009) 25 South African Journal on Human Rights 491.
Anne Hellum & Rosalie Katsande ‘Gender, Human Rights and Legal Pluralities in Southern Africa: A Matter of Context and Power’ in Giselle Corradi, Eva Brems & Mark Goodale (eds) (2017) Human Rights Encounter Legal Pluralism: Normative and Empirical Approaches 119–136.
Chuma Himonga ‘The Advancement of Women’s Rights in the First Decade of Democracy in South Africa: The Reform of the Customary law of Marriage and Succession’ 2005 Acta Juridica 82.
Thandabantu Nhlapo ‘Customary Law in Post-Apartheid South Africa: Constitutional Confrontations in Culture, Gender and “Living Law”’ (2017) 33 South African Journal on Human Rights 1.
Celestine Nyamu-Musembi ‘Are Local Norms and Practice Fences or Pathways? The Example of Women’s Property Rights’ in Abdullahi A An-Na’im (ed) (2002) Cultural Transformation And Human Rights In Africa 126.
Bhe v Magistrate Khayalitsha [2004] ZACC 17 http://www.saflii.org/za/cases/ZACC/2004/17.pdf
Shilubana v Nwamitwa [2008] ZACC 9 http://www.saflii.org/za/cases/ZACC/2008/9.pdf
UN GA Report of the independent expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, A /HRC/14/36
UN GA Report of the Special Rapporteur in the field of cultural rights, 10 August 2012, A /67/287
UN GA Report of the Special Rapporteur in the field of cultural rights, 17 July 2017, A/72/155

Picture credit: Max Pixel

image-20160512-16407-1phc8djAbout the author: 

Cathi Albertyn is Professor of Law at the School of Law, University of the Witwatersrand, South Africa, where she teaches graduate and post-graduate courses in Constitutional Law and Human Rights. Prior to joining the School, she was the Director of the Centre for Applied Legal Studies (2001-2007) and headed its Gender Research Programme for ten years (1992-2001). She was appointed to the first Commission on Gender Equality and later served on the South African Law Reform Commission. research interests include Equality, Gender Studies, Human Rights, the Judiciary and Constitutional Law.

Human Rights Inside and Outside: Introducing the 2018 INFAR Conference

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The ISS next week hosts a conference organised by INFAR on “Human Rights Inside and Outside”, with a special focus on the Rule of Law and human rights. These two concepts are core normative ideas for law, yet their intrinsic value and application is contested. This blog details the conference proceedings and briefly describes the conference theme and the main questions participants will seek to answer. It also serves as an invitation for interested parties to attend the conference.

 

On 31 May and 1 June 2018, the International Institute of Social Studies (ISS) will host a conference titled “Human Rights Inside and Outside”. This conference is being organised in the framework of the Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) Research Excellence Initiative, a 5-year (2015-2020) joint project of the Erasmus School of Law and the ISS of Erasmus University Rotterdam. Over one and a half days conference participants will gather to discuss the application of the Rule of Law (RoL) and human rights norms in relation to civic participation, contested constitutionalism, and corporate responsibility.

What is the conference about?

The Rule of Law (RoL) and human rights are core normative ideas for law, yet their intrinsic value and application is contested. Some have even argued that the human rights movement is on a regressive path, frequently leaving the most vulnerable without voice, ignoring economic considerations, and lacking prospects of securing access to justice.

 International and supranational organisations today are dedicated to the promotion of the RoL and human rights, but they face problems in how to progress towards these purposes. The European Union (EU) finds that its new member states are unable to deliver on the RoL commitments made when they joined the EU. The United Nations struggles with RoL and human rights in post-conflict states, for instance when the UN takes on the role of government, as in Kosovo, and in transnational trade contexts, where the UN tries to provide guidelines for how business actors should take responsibility for human rights protection.

Part of the difficulty in realising and critiquing RoL and human rights interventions emanates from the divergence of views among actors regarding their overall meaning and purpose. The RoL and human rights are well-known legal and also political and economic concepts, as law and development scholars note. However, the content of these concepts is a contested subject. Policymakers, regulatory agencies and private actors tend to take a functionalist approach in which the RoL and human rights are viewed as instruments for stimulating economic growth or political stability. On the other hand, courts and most other legal actors view the RoL and human rights as intrinsically valuable norms, but fail to address the circumstances that lead to (dis)function. That is, they fail to realise how the application of RoL and human rights is contingent upon and vulnerable to economic and political struggles, and how battles over these norms are won and lost for economic and political expediency.

INFAR’s interest in RoL and human rights

A core assumption of the INFAR project is that it is not enough to shine light on the conceptual tensions and dilemmas of RoL and human rights arising through processes of globalisation and financialisation, such as in adjudications involving trade law and human rights. The global issues of inequality and political exclusion do not have a quick fix, but a fruitful approach towards them could be investigating the specific social settings where fallouts from the broader conceptual tensions and dilemmas are registered: the human consequences for people and groups and a fuller appreciation of which actors and what norms affected individuals must compete with. Micro ethnographic and other socio-legal studies within public and private settings that examine different forms of struggle against plural forms of expropriation and exclusion can tell us much about the success and deficits within a specific context.

Through these studies we find out more about the RoL and human rights elements that are frequently undermined by increasing economic inequality or political exclusion, and the processes surrounding and facilitating such outcomes. Such context-specific studies enable us to appreciate that both answers and obstacles to human rights and RoL questions are not controlled by the state and can involve private actors who bring their own understandings of what RoL and human rights mean within their operations.

Against this background, the conference will explore what RoL and human rights norms are invoked in different settings, involving constitutional courts, corporations, governments and regulators; how those rights interact with the political and economic purposes and incentives of those actors; and why the realisation of rights can involve innovative or adverse results. Accordingly, we will study how the substantive meaning of the RoL and human rights differs depending on circumstances.

We will explicitly examine the role of private actors in RoL and human rights conversations:

How might strategic litigation efforts assist in achieving social justice for Roma travelers under consistent threat of forced eviction?

How can legal guarantees for public participation be operationalised in private settings?

And how can human rights based constitutions remain a meaningful framework in divided societies?

When considering these questions we keep the people whose rights are at stake at the forefront of our discussions, while recognising the dangers of doing so from an epistemic standpoint.

Conference proceedings

The first session on citizenship and discrimination will focus on the global, European and Dutch responses to Roma rights, with papers from Julia Sardelić, Claire Loven and Leonie Huijbers, Helen Hintjens and Kristin Henrard. On the topic of contested constitutionalism we hear from Jeff Handmaker and Wil Hout, Otto Spijkers and Sanele Sibanda. On corporate social responsibility, Liesbeth Enneking discusses global value chains, Nicola Jägers, the Sustainable Development Goals, Peter Knorringa and Samer Abdelnour speak on global standards for sustainability, and Rachel Adams presents on transparency and human rights. On human rights and mining, Anneloes Hoff will present ethnographic research on the practical application of the corporate responsibility to respect human rights, Kinnari Bhatt discusses an unusual example of private contracting between a concessionaire and an Aboriginal group, and Jackie Dugard presents on the constitutional rights to property and equitable access to South Africa’s mineral resources.

After an exciting roundtable debate and Q&A on how human rights can be strategically mobilised for political and social change, the conference closes with a Keynote Address by South African Sociology of Law Professor Jonathan Klaaren of the University of the Witwatersrand in Johannesburg.

All are welcome! Register for the event here. A conference programme can be found at the same link.

Authors:

Nathanael Ali, Kinnari Bhatt, Jeff Handmaker and Sanne Taekema (conference co-organisers)

 

 

Striking at the glass ceiling: a tale of seven judges (and a lawyer) by Ubongabasi Obot

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Memories came racing back for Ubongabasi Obot during a recent book launch at the ISS. The book’s theme? Breaking through the glass ceiling as an African woman. Obot’s own journey to become a female lawyer in Nigeria had been fraught with challenges, and she identified with the seven female Africans who are now judges in international tribunals and whose stories are captured in the book. Here she reflects on the launch, and on trying to make it in a male-dominated sector.

I remember the day that I was called to the Nigerian Bar Association as an admitted attorney. How happy and proud I was. But after graduating, people around me already began giving me unsolicited advice. Get a job in a private company! You should join the civil service and push the ranks! Get married, have children and build a good home! I wanted to engage in legal practise, and by that I mean litigation. A courtroom-style kind of life is what I yearned for. However, it was already made clear to me that litigation was men’s turf and that the perception existed that you could not be a successful litigation lawyer and a good wife.

I began practising as a lawyer in a private law firm. I also engaged in voluntary work for non-governmental associations, pursing my passion. Not too long after, I got married and moved to a different state. I became engaged in voluntary work, again while looking for a paid job. Oh, how tough and glaring it became. This was now the survival of the fittest, and by fit, I mean you had to be a “man”!

I wrote examinations for many private legal firms. I wanted the best, so I applied to those. I had the grades to match it. I passed the written examinations, moved to the oral interviews, and then the rejections kept on coming. I was broken. How was I ever going to get to the top? I had bills to pay, too. It was better to work in good law firms, as this would help me acquire more knowledge, build my clientele, and I could be on big profile cases. If I did well, worked with the right crowd and won the right cases, I could eventually be recommended for the position of a judge.

However, I did not get the big law firm jobs. I never understood why until one day, I received a call from one of the law firms I had applied to. ‘Hello is this Ubongabasi,’ I replied. ‘Yes, oh, I thought you were man,’ said the recruiter on the other line. You see, my name is quite masculine, which some may feel is misleading, but I do not apologise for that. The recruiter continued, ‘we received your application. Are you single or married?’ I answered, ‘I am married.’ The recruiter responded, ‘I’m sorry, but we cannot give you the job.’ No other explanation. I was denied the job by reason of being female and married. Therefore, in their opinion, I could not be a good lawyer.

I received the next blow from a regional manager of one of the top banks in Nigeria. Here, I did have connections. The manager and my uncle were friends. He mentioned that they had a vacancy for a legal / loan recovery officer. My uncle told him he knew a young and intelligent lawyer who fitted that profile. He asked that I send him my CV. Not bad, I thought—I could still go to court. The manager later called my uncle after and said I could not get the job, stating: ‘a married woman could not do that kind of job.’

The importance of sharing narratives

Thus when, on 7 May 2018, the book International Courts and the African Woman Judge: Unveiled Narratives was launched at the International Institute of Social Studies (ISS) in The Hague, the stories of the powerful women resounded with me, and resided with me. I had dreamed of a life in the courts, but my reality was different. It is so important for those who did make it to share their journeys through such books. And it is equally important those who didn’t make it to do the same.

The book launch was attended by numerous dignitaries from the International Courts and other organisations, was sponsored by the African Foundation for International Law, the ISS, and the Institute for African Women in Law. Edited by Dr. Josephine Jarpa Dawuni and Akua Kuenyehia, this book narrates the lives of seven female African judges who, through hard work and determination, now sit as judges of International Tribunals. Drawing on legal theories, feminist legal theories, post-colonial feminism and feminist institutionalism, it provides an intersectional analysis of how gender, geography, class, politics of the judiciary and professional capital contributed to shaping the lives of these women. Dawuni, who attended the launch, explained how the book celebrates the lives and laudable achievements of great African women judges.

The launch was followed by a panel discussion, beginning with Judge Julia Sebutinde of the International Court of Justice. She remarked on a number of questions that people ask her. Questions such as: ‘what you regard as the most important achievement of your life?’ This, she said, is a “curious question”, insinuating that women who did well in their careers had to sacrifice their family life to get to the top or that connections secured their jobs.

Listening to Dawuni’s and Sebutinde’s words, I knew I was in the right place! Daniela Kravetz talked about the Gqual campaign and their strategies to promote gender parity in international tribunals and bodies. When Judge Liesbeth Lijnzaad, the third and final panellist of the International Tribunal on the Law of the Sea, later referred to the books on the shelves of her library, there were four books on how to succeed in the legal career—and none was written about women. All were about men who had succeeded in the legal field.

The book is thus also an important contribution to scholarship. The personal narratives of successful women in the legal sector have not been systematically written about. Women often find it very difficult getting to the top of their careers and if they do so, many in society immediately draw a number of presumptions. For example: they ‘had connections’; or ‘it was just by a stroke of luck’; or ‘they are not doing well as family women.’

We will see each other at the top!

I am glad that I attended this event. The words of these women continue to resonate in my head. As Lijnzaad offered me a bitterbal and smiled at me at the reception, I asked her, ‘how can I make it to the top?’ She answered, ‘become an expert in your field, work hard, and you will be able to play with boys on the same field. You will shine.’

I agree with her, but thought about how, in addition, some structural and cultural factors work against some women especially in less developed societies. These factors can be challenged through legal recourse, and through continuous and consistent exhibition of the works and achievements of successful women in all fields. We can also create movements to pressurise the government to create/implement laws against discrimination of married women in this and other professions.

Women should not be discouraged. These women judges have made it to the top, and there are other women who are extremely successful in their careers, too. We need to read about them more often. Every young girl or woman can make it if they put their mind to it. We will work hard, and we will see each other at the top!

An ebook has been made available to students of Erasmus University

ubby picAbout the author:

 

Ubongabasi Obot is a practising lawyer from Nigeria who is currently on leave to complete her MA in Development Studies at the ISS.

 

Toward ‘fisheries justice’?: the global ‘fisheries crisis’ and how small-scale fishers are fighting back by Elyse Mills

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The global ‘fisheries crisis’—in which fish stocks are depleted, environmental destruction has reached an apex, and small-scale fisheries are disappearing—is causing irreversible damage to both the fisheries sector and communities sustained by fishing activities. Governments implement stricter regulations and resource management strategies in an attempt to solve the crisis, but these approaches typically leave out the perspectives of small-scale fishers. Despite this, fishing communities are constructing innovative ways to make their voices heard and to protect their lives and livelihoods.

Transforming global fisheries

The overlap of the global food crisis (sparked by the 2007-2008 food price spike), and rapid economic growth occurring in the BRICS countries (Brazil, Russia, India, China, and South Africa) has contributed to significantly altering patterns of food production, consumption and trade worldwide. Economic growth has also facilitated changing dietary preferences, contributing to a rising global demand for animal protein. Fish protein has become particularly popular in light of health warnings about industrially farmed animals and eating too much red meat. This has caused fish consumption to double worldwide in the last 50 years.

Rising consumption has intensified pressure on the global fisheries sector—particularly to meet the demands of highly populated countries like China. Even South Africa, which has the smallest economy and population among the BRICS, saw fish consumption increase by 26% between 1999 and 2012. In terms of production, China is by far the world leader, and at its 2012 peak contributed 70% of fish to the global supply. Between 2012 and 2014, it further expanded its capture fishing sector by almost 2 million tonnes and its aquaculture sector by nearly 5 million tonnes. India produced at a similar level, contributing 50% of the global fish supply in 2012—ranking third in global capture fisheries (after China and Peru) and second in aquaculture. South Africa has one of the largest capture fishing sectors in the African continent, contributing approximately US$ 435 million to the national economy in 2012.

Fighting for policy change in South Africa

Capture fishing in South Africa is an important source of livelihoods for many coastal communities, of which a large proportion engages in small-scale fishing. Of the 43,458 commercial fishers and 29,233 subsistence fishers in South Africa, approximately 50,000 are considered small-scale.[i] However, despite comprising almost 62% of the fishing population, the South African Department of Agriculture, Forestry and Fisheries’ national policies have historically not recognised the particular needs of small-scale fishers and the difficulties they are facing, focusing instead on expanding the large-scale industrial fishing industry. This has sparked intense resistance from fishing communities.

After the government adopted its 2005 long-term fisheries policy, leaving small-scale fishers without any access or fishing rights, a group of fishing communities, led by community organisations Masifundise and Coastal Links, took the issue to the South African Equality Court. The Court finally ruled in favour of the development of a new policy. In 2012, the new Policy for the Small-Scale Fisheries Sector in South Africa was completed, introducing new strategies for managing the sector, which aim to secure rights and access for communities by prioritising human rights, gender, and development as key issues. This marked an important victory for South African fishers, demonstrating their capacity for mobilisation and to achieve change. In 2014, Masifundise and Coastal Links also published Small-scale Fisheries Policy: A Handbook for Fishing Communities, providing fishers with accessible information on how the policy could be applied in their daily lives.

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Handline fishers off the coast of Cape Point, South Africa. Photo: Rodger Bosch

Fishers’ participation in governance processes

Considering South Africa’s 2012 policy was developed partly as a response to pressure from fishing communities, it has set an important precedent for future fisheries policies, both nationally and internationally. Masifundise and Coastal Links also played key roles in discussions with the FAO’s Committee on Fisheries (COFI), which led to the publication of the Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the context of Food Security and Poverty Eradication (SSF Guidelines) in 2015. These guidelines were the result of a bottom-up participatory process that included 4,000 representatives from small-scale fishing communities, governments, fish workers’ organisations, research institutes, and NGOs.

The development of the SSF Guidelines and South Africa’s national policy signal an important shift in the perception and governance of fisheries sectors. While small-scale fishers have been crucial contributors to the global food system for generations, their rights are only now beginning to be more formally recognised. There appears to be an important connection between this newfound recognition and increasing mobilisation within fishing communities both nationally and around the world.

The rise of a global ‘fisheries justice’ movement?

Increasing mobilisation among fishers, particularly within the last few decades, has demonstrated their commitment to participating in, and shaping, the transformation of the fisheries sector and its socio-political context. Fishers are also joining forces with farmers, pastoralists, rural, and indigenous peoples, as overlapping food and climate crises highlight common struggles between social movements. Their shared commitment to creating a fair food system has contributed both to a transnational convergence of resource justice movements (e.g. agrarian, climate, environmental), as well as the emergence of what I would argue is a global ‘fisheries justice’ movement.

A key actor in this movement is the World Forum of Fisher Peoples (WFFP), of which Masifundise and Coastal Links are active members. Founded in 1997, the WFFP now links 43 national small-scale fishers’ organisations in 40 countries around the world. It focuses on addressing the issues threatening small-scale fisheries (e.g. privatisation, climate change) and advocates for fishers’ human rights and secure livelihoods. The WFFP holds a triennial General Assembly and an annual Coordinating Committee meeting for member organisations to come together, reflect on their goals and actions taken, and develop new strategies for the future.

In an era when power within the food system is increasingly being concentrated in the hands of a few huge corporations, movements of small-scale food producers and their allies offer alternatives based on social justice, sustainable production methods, and protecting the environment that rejuvenate hope for the way forward.

[i] Small-scale fishers refers to: ‘Persons that fish to meet food and basic livelihood needs, or are directly involved in harvesting/processing or marketing fish, traditionally operate on or near shore fishing grounds, predominantly employ traditional low technology or passive fishing gear, usually undertake single day fishing trips, and are engaged in the sale or barter or are involved in commercial activity’. Definition from Department of Agriculture, Forestry and Fisheries (DAFF) (2012), Policy for the Small-Scale Fisheries Sector in South Africa.

Untitled.pngAbout the author:

Elyse Mills is a PhD researcher in the Political Ecology Research Group at the ISS. Her PhD research focuses on the dynamics of fisheries and fishers’ movements in the context of global food and climate politics. She also co-coordinates the Initiatives in Critical Agrarian Studies (ICAS), and is part of the Emancipatory Rural Politics Initiative (ERPI) Secretariat.

 

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

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JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.

In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.

Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath.  From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

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A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy”1, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.

1The “extinction policy” is known in Dutch as the “uitsterfbeleid”.