Monday, 4 April 2011

Pierre Menard, author of the Universal Declaration of Human Rights

In “Pierre Menard, author of the Quixote”, first published in 1939, Jorge Luis Borges evokes the imaginary contribution of a French author from the first half of the twentieth century, Pierre Menard, whose known output is completed in a fundamental way by the reproduction of chapters 9 and 38 of Part I of Don Quixote, as well as a fragment of chapter 22. What Menard would have done is not recopying of the original text, nor the production of a sequel or prequel, nor the adaptation of the story to a different context, but rather follow a process whereby he sought to arrive at exactly the same text as produced by Cervantes three hundred years earlier. Borges describes seeing piles of drafts written by Menard, slowly crafting the text that eventually became identical to parts of the Quixote. The suggestion carried by the short story is that it is conceivable that two authors which many things separate – their language, their culture, the political context, the literary tradition – can arrive at an identical text through intellectual processes which are radically different. When this idea is appropriated to consider the authority and origins of basic humanitarian norms like the Geneva Convention or, even more forcefully, the Universal Declaration of Human Rights, we can imagine an explanation of the universal appeal of the text that leaves asides arguments centred on its origins. In the case of the Universal Declaration, cultural relativist arguments often include tracing the origins of the document to European Enlightenment ideas translated into the French Déclaration des droits de l’homme et du citoyen as well as the Unites States Bill of Rights; the same also decries the absence of much of the developing world from the political process which lead to the adoption of the Universal Declaration in 1948, subsumed as it then was in the colonial empires of a few powerful states. And yet, many counter-claims underscore the existence of principles in non-Western settings which are similar to those entrenched in the Declaration. This is the main message conveyed by the limited literature on principles of humanitarian law in exotic, non-Western cultures. What “Pierre Menard, author of the Quixote” offers is a creative and provocative suggestion that it is entirely conceivable that we may arrive at an identical text from intellectual processes divorced from one another, under the influence of divergent ideas. The result is to render moot the question of origins, including the suggestion of transplant, to replace it by a different quest to determine whether it is possible that this document might be the outcome of parallel and distinct evolutionary processes in different parts of the world. Borges uses the Quixote as the vehicle to advance the idea, but there seems nothing specific about the written form which would preclude the same from obtaining for unwritten ideas, principles, or norms. As such, the legitimacy of an international norm would not be exclusively tied to a single narrative, but rather be opened to multiple narratives linking the same norm to multiple sources.

There is more still to “Pierre Menard, author of the Quixote”. The text at which Menard painstakingly arrives after years of work is identical to that of Cervantes, and yet radically different. In the short story, Borges quotes a passage from Cervantes in which the Spaniard evokes “truth, whose mother is history, rival of time, depository of deeds, witness of the past, exemplar and adviser to the present, and the future’s counsellor”, to be taken as an instance of rhetorical praise of history. Borges then quotes the same passage from Menard, identical in every detail, but which is to be accorded a completely different meaning given the context in which Menard – as opposed to Cervantes – came to write these lines, amidst a movement to reject essentialist readings of history. The point is, of course, the necessary contingency of interpretation of any text, but coloured this time by the suggestion that the contingent nature of text is reflective not only of the process of interpretation but also its very production. Seen in this light, there can be no debate about originalism in the interpretation of documents like the Universal Declaration or the US Constitution, because a single text can be borne out of different lineages. “Every man should be capable of all ideas”, Pierre Menard is quoted as having written, and indeed this is the challenge posed by legal pluralism to the existence and validity of any legal norm. Even if we have instruments like the Geneva Conventions and the Universal Declaration of Human Rights which have attracted adherence from nearly every government, this does not foreclose the possibility that the norms they contain may be arrived independently at by other agents. In seeing every class of legal actor we seek to regulate as the potential co-author of legal norms, we move beyond the notion of normative commitment articulated by Robert Cover to a more creative and polycentric process whereby norms are created and recreated at every invocation. This seems to resonate as particularly true in the context of warfare, in which the state and its institutions are partly unable to reach the very actors we wish bound by international humanitarian law. Each actor, from the armed forces to rebel groups and even individuals, must make a determination to live by a given norm in order to give it salience. There is no guarantee that these multiple authors will, like Pierre Menard and Cervantes, arrive at fully identical formulations. Even if they do, the meaning to be given to these will not necessarily be consistent. The result is legal polyphony, a global commons in which narratives about humanitarian standards interact to give shape to a legal regime far more complex but far more meaningful than the written text of the Geneva Conventions.

Saturday, 27 November 2010

Resisting Recruitment into Criminal Gangs

Note: An updated and revised version is available at:

In a number of countries, criminal gangs have de facto control over vast geographical spaces and the people that live in these territories. They maintain their dominance through oppressive and coercive means. Although many would argue that such gangs and their activities exist outside the law, they in effect control and maintain a harsh legal system of their own. Resistance to the prevailing legal norms advanced and enforced by criminal gangs within such a system results in severe punishment.

One of the norms promulgated by many criminal gangs is that people must submit to "conscription" into their ranks when called upon. Acceptance of such conscription essentially means the eventual incorporation of the conscripted individual into criminal activities and their participation in the oppression of the local populations under the thumb of the criminal gang. This will in turn lead to a number of human rights violations. The efforts to conscript however are not accepted by everyone. Some choose to resist the advances of criminal gangs only to suffer for their refusal to join.

Take for example the case of Somali-born Ismaele Khalif Abdulle recently featured in an article in the Toronto Star. Abdulle refused to be conscripted into a Somali criminal gang that has been designated a terrorist group by Canadian and United States officials. Abdulle and three other young men who refused were mutilated for their disobedience. Their right hands and left feet were amputated in public as a warning to others refusing to conform to this norm of conscription.

Abdulle managed to escape to Nairobi, Kenya and was designated by the UNCHR as a "Mandate Refugee" as he fit the description of a refugee under the 1951 United Nations Convention Relating to the Status of Refugees (as modified under the 1967 Protocol Relating to the Status of Refugees). He is a person who is outside of his country of nationality and is unwilling or unable to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. His refugee status would likely fall within the category of political opinion - which is expressed through his refusal to participate in criminal activity engaged in by a terrorist group that maintains de facto control in the area where Abdulle hails.

Abdulle's story, amongst others that I am presently examining in my research fits within a larger context of individuals who face a well-founded fear of persecution or have experienced persecution on the basis of their resistance. The UNHCR's act of granting him refugee status provides (at least implicit) support for the idea that individuals who have been targeted for their acts of resistance to oppression should be recognized as deserving protection. However, he still needs a state willing to grant him protection.

Furthermore Abdulle's story (amongst others) also demonstrates the possibility of refugees to embody more than just the notion of a victim (and often times strictly one of a passive kind). It allows us to re-imagine refugees as both victims (and possibly one of a more agentive variety) and simultaneously as resisters who confront the oppression surrounding them.

However this more nuanced picture often escapes many people and may deprive worthy individuals of the full measure of sympathy that "pure victims" would otherwise receive. This is perhaps well captured in the title of the Toronto Star article mentioned above - "Somali double amputee recognized by UN as refugee." There is a stress on the nature of his suffering (his double amputation) paired with his refugee status. Nothing is said of his act of resistance that led to it and his role as a resister (which is not to suggest that he deserved the double amputation or any other punishment for his defiance). One alternative title might read: "Somali resister recognized by UN as refugee."

Would he gain as much immediate sympathy or openness to his claim for refugee status as he might from the original title? For many, a refugee is simply not a resister, but a victim who has clearly suffered and who has done nothing that might be deemed as "provocation" thus lead to his/ her suffering. However the telling of Abdulle's and others' narratives might help to challenge this prevailing idea.


Michelle Shephard, "Somali double amputee recognized by UN as refugee" The Toronto Star (26 November, 2010), online: The Toronto Star,

Cross-Posted at:

Monday, 8 March 2010

Droits et Démocratie: absent du podium

En encourageant les athlètes canadiens en compétition à Vancouver à se hisser parmi les meilleurs au monde, nous célébrons une certaine idée de ce que représente ce pays, nous projetons l'image d'une nation forte, diversifiée et engagée dans la poursuite de ses idéaux.

Pendant ce temps, à l'autre bout du pays, la confirmation de Gérard Latulippe à titre de président de Droits et Démocratie et le congédiement des trois dirigeants de l'organisme accélèrent la débâcle entourant Droits et Démocratie, menaçant une autre facette tout aussi importante de ce que plusieurs considèrent comme étant la nature même du Canada: un modèle offert au reste du monde d'une société inclusive au sein de laquelle les libertés sont respectées et la diversité, célébrée.

Un vrai rôle

Ne vous y méprenez pas: Droits et Démocratie n'est pas un obscur bureau gouvernemental grâce auquel des bureaucrates se baladent aux quatre coins du monde pour assister à des conférences inutiles.

Bien au contraire, Droits et Démocratie est probablement la première et la seule institution canadienne à assumer un véritable rôle international, grâce à 20 années d'action dynamique et créative. Elle fait partie intégrante d'une certaine conception du Canada qui a fait du pays l'un des principaux contributeurs aux opérations de maintien de la paix des Nations unies, un joueur clé des négociations relatives au Statut de Rome de la Cour pénale internationale, et le moteur qui a conduit à la conclusion de la Convention d'Ottawa sur l'interdiction des mines antipersonnel.

Malgré le fait qu'il ne figure pas au rang des grandes puissances, le Canada a réussi à accomplir tout cela en raison de la crédibilité dont il jouit et qu'a bâtie, en plusieurs années, un petit groupe d'institutions canadiennes, au sein duquel Droits et Démocratie occupe une place non négligeable.

Le linge sale de Droits et Démocratie lavé en public, marqué par le décès tragique de Rémy Beauregard, est devenu un incident dont la visibilité a largement dépassé nos frontières et eu des répercussions notamment en Israël, en Irlande et en Afghanistan.

Un outil du gouvernement

Jusqu'à maintenant, on considérait que Droits et Démocratie reflétait la force du modèle canadien de la protection des droits de la personne et de la gouvernance démocratique. Les fonds que l'organisme reçoit du gouvernement lui permettent d'élaborer d'ambitieux programmes en portée et en durée, d'une envergure dont les ONG ne peuvent que rêver.

Tout en exerçant une influence typiquement canadienne, sans coût politique pour les affaires étrangères du Canada, l'organisme pouvait conclure des collaborations avec des entités habituellement méfiantes des motifs ultimes d'agences gouvernementales, car il était perçu comme une entité indépendante de l'État.

Ce que l'on retiendra désormais des récents événements est que Droits et Démocratie n'est pas un organisme indépendant, mais plutôt un outil permettant au gouvernement au pouvoir de poursuivre des objectifs spécifiques en matière de politique étrangère.

Alors que l'ACDI s'attachait déjà à élaborer des politiques similaires, l'on a justifié la création de Droits et Démocratie en soulignant la nécessité de se doter d'un organisme indépendant ayant son siège au Canada et grâce auquel l'on ouvrirait de nouveaux canaux pour diffuser le modèle canadien en matière de protection des droits de la personne et de démocratie. Pour un investissement financier qui correspond, selon les rapports, à environ 0,003 pour cent du budget de l'ACDI, il s'agissait d'une très, très bonne affaire.

On n'imagine pas qu'une institution comme Droits et Démocratie puisse jouer un rôle utile sans bénéficier d'un certain niveau d'autonomie, réelle et perçue, par rapport à la ligne d'action politique du gouvernement fédéral. À défaut, elle pourrait tout aussi bien devenir un simple programme de l'ACDI. Comme l'illustre bien le pouvoir judiciaire, l'idée d'une entité financée par le gouvernement bien qu'isolée de l'interférence politique est pourtant banale.

Retrouver un appui bipartisan

Comment peut-on sauver cette composante unique de l'arsenal du Canada qui contribue à un plus grand respect des droits de la personne et des principes de démocratie dans le monde? Nous aurions tort de croire que l'on puisse facilement convaincre la communauté internationale en entreprenant une opération superficielle de maquillage.

Sans égard aux torts reprochés, la tempête politique résultant de cette affaire a privé le présent conseil de la crédibilité nécessaire pour soutenir l'organisme. Le conseil d'administration tout entier devrait être remplacé par des membres qui jouissent d'un appui bipartisan, ouvrant ainsi la voie à la nomination d'un nouveau président apte à rétablir la réputation de Droits et Démocratie et, ce faisant, sa raison d'être.

Le Canada a investi pendant vingt ans pour se doter d'une institution unique en son genre. On semble tout faire aujourd'hui pour la vider de son contenu et ne laisser qu'une coquille vide sans utilité réelle.

Thursday, 12 November 2009

Refusing To Take The Pledge

The pledge of allegiance in the United States, recited by millions of schoolchildren on a daily basis has once again caught the public's attention. Unlike those who take issue with the pledge's "one nation, under God" phrasing, one ten year named Will Phillips objects to standing up at the appointed time and participate in a collective and daily rote recitation of the pledge in his fifth grade class. However, he does so for other reasons. In Will's own words: “I really don't feel that there's currently liberty and justice for all.” This is in connection with discriminatory laws that prohibit gays and lesbians from entering same-sex marriages or the ability to adopt in Arkansas as well as other states in the union.

During the week of October 5th, when Will began his refusal to stand up and take the pledge, he had a rather terse and open confrontation with a substitute teacher. The confrontation resulted in Will respectfully advising the substitute teacher that she could "go jump off a bridge" after she admonished that Will's mother and grandmother would not be pleased by his persistent refusal to recite the pledge. For Will's "insubordination" he was dispatched to the principal's office. The principal instructed Will to look up information on the flag and what it represents, although it seems rather clear that Will already had a sense of what he felt it meant at present and what it ought to mean.

For Will's continued refusal, he has received support not only from his parents but some colleagues at school. However, he has also been the target of bullying and epithets for his defiance. Still he remains steadfast and resolute in his positions and interpretations about what liberty and justice for all ought to mean.

What can these circumstances tell us about the nature of law and legal subjectivity? Well for one, there are more than just one legal order or source of law at play here. Clearly, there are the laws mandated by the government and state actors. However, as scholars of legal pluralism have noted, there are multiple normative legal orders that operate outside of the state that impact upon the lives and decisions of those whom they touch. Then there are the rules and values espoused by Will's family. Furthermore, there are those norms that operate within Will's peer group that exact punishment on those who fail to conform.

What is in play here are a clash of these multiple normative legal orders - each of which, Will experiences on some level. First, there is Will's family that openly espouses the right to equality and justice for the gay community as part of a larger vision of equality and equal protection. In his mother's words - "We raised him to be aware of what's right, what's wrong, and what's fair.” Second, there is the state that mandates the recitation of the pledge of allegiance and the values that are ascribed to it while it denies a specific community some of the very concepts that are supposedly inherent in its recitation. Its agent in this respect was the substitute teacher who attempted to coerce Will to join in and participate against his wishes. Third, there is his peer group which includes those who support his decision but also others who attempt to coerce and bully Will into conformity.

Like all human beings, Will is impacted and influenced by the various legal orders that he is exposed to. However, equally, he is not a mere object upon whom law is simply imposed by these various legal regimes. Will has agency and the capacity to interpret legal norms for himself. As McGill University Faculty of Law professor, Rod MacDonald once asserted, "non-conforming behaviour in any particular regime is not simply a failure of enforcement or civil disobedience. It may be the reflexion of an alternative conception of legal normativity."

Therefore, for Will (who states: "I've always tried to analyze things because I want to be lawyer"), his continuous refusal to recite the pledge of allegiance is not merely an act of stubborn disobedience with respect to the norms of the state or the peer group that ostracize and denigrate him. It is also the manifestation of a legal mind at work seeking to interpret what is right and fair and to take a firm stand, in light of the normative legal structure that he has allowed to influence him the most - his family, and particularly, the values of equality and human dignity they espouse.

Sources consulted:

John Brummett, "Hey, kid, you'd better make that pledge" Arkansas News (15 October 2009), online: Arkansas News .

David Koon, "A boy and his flag" The Arkansas Times (11 November 2009), online: Arkansas Times .

Roderick A. MacDonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Ariz. J. Int'l & Comp. L. 69 at 79.

Wednesday, 15 July 2009

Harry Potter and the Supreme Court of Canada

The recent Supreme Court of Canada case of A.C. v. Director of Child and Family Services of Manitoba confirmed the overriding of a 14 year old’s religious refusal of medical treatment. A.C., the teenager in the case, argued that she had been wrongly denied the respect she would have been given had she been 16. The judgment gives a nod to A.C.’s faith, imagines the possibility that someone her age might be competent to make her own medical decisions, and, in the end, underlines the need to protect young people from the grave consequences of their own decisions. As a story that illustrates the complexities of adolescent autonomy, it’s not bad. But, for a full picture of the turbulence of teenage life and its characteristic mix of real needs and authentic strength, a more promising place to look is the fictional world of Harry Potter. As the sixth story Harry Potter and the Half-Blood Prince - opens in movie theatres this month, we are invited to reflect on adolescence in ways not captured by the language of law.

Right from birth, Harry Potter embodies a mix of true vulnerability and impressive power. It is as a student from ages 11 to 17 that Harry develops his abilities and maturity. In precisely the same period, a network of people provides support for his emerging autonomy. Harry’s story reminds us of the truths of growing up, and of the misleading promise of clean cut lines dividing incompetent youth from capable adulthood.

In the Supreme Court’s story, fourteen year old A.C. is presumed unable to make serious decisions regarding her health. Those are decisions reserved for later in life, specifically age 16 according to the law in A.C.’s home province of Manitoba. But, just as Harry Potter at 14 competes in the Triwizard Tournament, even if officially deemed too young to do so, so too has A.C. had maturity thrust upon her. She is aware of the grave risk to her life caused by her medical condition, and turns to faith for guidance and direction. Neither adolescent at 14 is ‘of age’, but both have voice, beliefs, desires, and capacities. For both teenagers, this is a time of alternating and coexisting vulnerability and confidence. And it is a time of individual dignity. Professor Dumbledore says to Harry, “You have shouldered a grown wizard’s burden and found yourself equal to it”. As A.C. shoulders her own adult burden, her voice deserves attention, and her expressed wishes and beliefs deserve appropriate consideration.

Lines drawn on the basis of age are both ubiquitous and mythical. They necessarily imagine “typical teenagers” at a given age and create rules based on the attached assumptions. Yet, as Harry indicates, not all teenagers are typical. It is in the crucible of crisis that an adolescent like A.C. emerges. Again, in the words of Dumbledore, “Youth cannot know how age thinks and feels. But old men are guilty if they forget what it was to be young…”. Trying to help young people avoid mistakes with serious consequences is part of the responsibility of members of an adolescent’s support network. But J.K. Rowling’s stories show us that trampling on a young person’s expression of desire in the name of protection fails to ensure respect for dignity.

In the sixth book and movie, Harry Potter takes lessons in “apparition”, the adult skill of invisibly moving from one place to another. Apparition requires sustained individual focus on “Destination, Determination and Deliberation”, and its mastery takes much repetition and practice. Also in the sixth movie, Harry is taught the significance of the human soul and the horrific consequences of its destruction. Thus, at the same time that he prepares for adulthood by focusing on where he wants to go, Harry realizes that integrity of body and soul are crucial for getting there. The fictional story of Harry Potter, then, seems ideal for understanding the real story of A.C., a young person of faith considering the spiritual and physical consequences of her choices. All of us, including the judges of the Supreme Court of Canada, may want to stand in line for a movie ticket.

By Shauna Van Praagh,

Associate Professor and Associate Dean, Faculty of Law, McGill

(Author of Adolescence, Autonomy and Harry Potter: The Child as Decision-Maker (2005) 1 (4) International Journal of Law in Context 335).

Monday, 27 April 2009

Repatriating Khadr – Another Round

The Federal Court of Canada issued a decision on 23 April 2009 ordering the Canadian Government to request from the United States the return of Omar Khadr to Canada (Khadr v. The Prime Minister of Canada, 2009 FC 405). This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances. It remains to be seen whether the decision will be appealed (every indication is that it will be) and, in the affirmative, whether it will stand.

Since his involvement in hostilities against US troops in Afghanistan in 2002, at the age of fifteen, Khadr has been detained by the United States, first at the US military base in Bagram, Afghanistan, and then in Guantanamo Bay, Cuba. He is accused of war crimes, supporting terrorism, and spying, although the war crimes charge seems to be the only one being actively pursued by US authorities.

There are two aspects to the decision, which are quite distinct but which become fused to a certain extent in the judgment of the Federal Court. The first touches on the legality under international law of the treatment given to Khadr in Bargram and then Guantanamo Bay. The Federal Court decision follows a string of decisions by the highest courts in Canada, the United States, the UK and other jurisdictions, concluding that the way in which Khadr and his fellow detainees were treated violates binding treaties and customary international law, both under international humanitarian law and international human rights. In Khadr’s case, the fact that he was a minor when first detained adds a further layer of illegality to the treatment he received by the authorities.

Who these authorities are is the second aspect of this decision. Clearly, the capture and detention of Omar Khadr are actions of the United States. In order for the Federal Court to issue an order against the Canadian Government in this respect, some link must be found between Khadr’s detention and Canada. Upon Khadr’s arrest in 2002, Canadian consular officials sought access to him, which was refused by the United States. Canadian officials protested Khadr’s transfer to Guantanamo Bay as inappropriate for a minor, and sought assurances that the death penalty would not be imposed on him. Such steps are standard measure suggesting that Canada was attentive to Khadr’s fate and unable to control his detention in any meaningful sense. Critically, however, CSIS and DFAIT agents interrogated Khadr in Guantanamo in 2003 and 2004 for the purpose of gathering intelligence. On at least one occasion in 2004, Khadr was subjected to a ‘frequent flyer’ program by US authorities, involving the intentional deprivation of sleep for several weeks in order to ‘soften him up’. The Federal Court, echoing other court decisions to the same effect, found that such a treatment violates not only international law but also the Canadian Charter of Rights, which becomes applicable due to the fact that Canadian agents were aware of the treatment given to Khadr when they questioned him. As a result, earlier litigation by Khadr before Canadian courts led to several orders prohibiting further Canadian involvement in his interrogation as well as the disclosure of evidenced obtained by Canada in relation to such interrogations.

In this case, rather boldly, the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter. What is surprising here is that the relevant Charter violation remains the same as in earlier cases dealing with Khadr, necessarily connected to Canadian involvement in Guantanamo Bay. The Federal Court appears to find in Canada’s decision not to seek Khadr’s return an endorsement of his detention in general, including all the violations of international law at the hands of US authorities. In that light, the appropriate remedy is an order directing the Canadian Government to request Khadr’s return. This is unusual because as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.

In the end, the order issued by the Federal Court may be prove a limited victory. Even if the decision stands and courts are found to have the power to order the Canadian Government to seek Khadr’s return, such a request will be received by the United States as meaningful only inasmuch as it is infused with political will. The real impact of the decision, regardless of its ultimate legal validity, may well be that it stands as one more unambiguous statement that Canada’s callous indifference to repeated violations of the fundamental rights of a Canadian child cannot be tolerated.

RDI Interview on the case.

Wednesday, 15 April 2009

Human rights and legal pluralism meet gender equality and geopolitics

As part of the legal remaking of Afghanistan, President Karzai signed a law on the Shia minority which stipulates that “a wife is obliged to fulfill the sexual desires of her husband.” The law is commonly interpreted to effectively licence marital rape. It also limits a woman's right to have an education unless she can get her husband's consent (Article 133: “The husband can stop the wife from any unnecessary act”), and even a woman's ability to leave the home. Simultaneously, a video has surfaced from Pakistan showing a woman being flogged publicly in the Swat valley, apparently for having declined a mariage offer to a Taliban. The threat to women in Afghanistan has created an international outrage, much Western soul-searching about the reasons for an international presence in Afghanistan (including by such prominent figures as Ban Ki-moon, Navi Pillay and Hillary Clinton), and may have some implications for NATO's involvement.

In both cases, legal pluralism seems to have advanced in great strides - the "state" essentially outsourcing norms to certain communities - and human rights, particularly women's rights, seem to have been the victim. Although the international media only become attentive to this by the time it has burgeoned into a scandal, legal pluralism in Afghanistan in particular was long in the making and is part of a legitimate attempt to allow a degree of normative autonomy. It takes hold in what is an exceptionally multi-layered and complex legal environment, rich with customary and religious laws, alongside the legacy of Soviet reforms and, increasingly, the influence of international law. It is also important to note that the new Afghan constitution, adopted in January 2004, coincides with adherence to the main international human rights conventions. In Pakistan, although the details of legal autonomy in Swat remain slightly fuzzy, religious courts will coexist with the possibility of going to the appeal courts under the federal judicial system, itself a mixture of British colonial law and Sharia regulations.

Of all the ways of reconciling universality and diversity, entrusting the law to the power of men is clearly not what legal pluralism consonant with fundamental rights was meant to be. In both cases, the laws were adopted as a result of dubious political tradeoffs. In the case of Afghanistan, it seems designed to boost Karzai's chances of being reelected, by pandering to the demands of a minority. In the case of the Swat valley, it is part of a dangerous gamble by the Pakistani military that, having failed to defeat them, the Taliban can at least be appeased by allowing imposition of the Sharia. Pluralism in this context can be a slippery slope. It creates an incompatibility with the Afghan constitution which is supposed to guarantee equality between men and women (but also, problematically, makes Sharia the supreme law), and inequality between different women or different groups. Moreover, it is already begging the question of "whose pluralism?" given competing interpretations of the Sharia. The few protests by women, including one in Kabul by members of parliament alleging that the law was an "insult to the dignity of women", were quickly dispersed. It is difficult not to tie the adoption of the law to growing insecurity for women, and indeed growing insecurity anywhere in Afghanistan. The murder of a senior Afghan female member of Parliament is part of a very worrying trend. Pakistani and international critics are talking of the official "talibanisation" of the North West territories.

Yet, there is also some support for this sort of legal pluralist decentralization in a context where the state's legal system is thoroughly discredited, as a result of corruption and incompetence. Although the status of women has rightly created indignation, there is evidence that Shariah courts in Swat for example are up to the task of litigating property disputes. Communal forms of justice in Afghanistan may be much more acceptable locally, and thus much more effective. The emphasis on consensus in addition to Koran interpretation may be more suited in some cases. Moreover, there is no doubt that legal pluralism in some cases is the a possible prescription to protect minority autonomy and rights, especially in a context where, like in Afghanistan, a minority has historically been oppressed (this was particularly the case of the Shia Hazara minority). Finally, pluralism is also a away to address the specificities of a country like Afghanistan or even Pakistan, rather than simply imposing a unitary system based on the Western experience, a point made emphatically by some local women (not to mention that the West is a bit quick to forget how its own legal tradition long tolerated marital rape and condoned various forms of oppression of women, not to speak of continuing difficulties). Shia family law supporters include women who staged a peaceful counterprotest in Kabul and, however imperfect, Afghanistan is now supposed to be a democracy.

This is why there is much need for the sort of intermediary position that the Afghan government itself highlighted (even though it seems to have fallen short of it), in which it held that it:

"must engage with the traditional system, to seek to eliminate its unacceptable elements and maximize its positive features. The aim should be to improve the quality of traditional justice, perhaps offering training to elders and others, incentives to follow the best approaches, and linkages to the state system where agreed procedures are followed"
Of course, that is more easily said than done. The debate on legal pluralism and human rights is nonetheless definitely worth more than the inevitable simplifications that will arise as a result of the recent revelations. The tension is not simply between just and unjust laws, but also between law in the books and law in practice, law that people recognize as their own and law that is only applicable in Kabul or in theory. In many ways, it is not the central governments that created legal pluralism, as much as the persistence and even dominance of certain pluralist practices that makes it necessary for central authorities to recognize them.

Different concepts of rights also seem involved (during the Kabul demonstrations both sides chanted “We want honour and dignity for women", thus vividly illustrating the divide). For some, dignity is based on the ability to come under the jurisdiction of one's community's religious laws; for others, it is based on the ability to either be free from community bounds, or to redefine those bounds.

Saturday, 4 April 2009

Lord Hoffmann speech on European Court

Lord Hoffmann of the House of Lords made a speech to fellow judges in the UK this week in which he accused the European Court of Human Rights of imposing "uniform rules" on states, creating a "federal law of Europe," and behaving as a "supreme court". Lord Hoffmann went on to say:

“I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such.”

This seems a bit bit strange given the fact that in many ways this is very much what the European Court itself has been saying throughout its existence. The Court has always insisted that national judges are better suited to deciding complex domestic issues. In fact, the Court is often accused of having bent backwards in some areas to accommodate national traditions and sensitivities through the idea of the "margin of appreciation".

Of course, the "margin of appreciation" is only that, and one can fall beyond it, otherwise supranational control of human rights adherence would be meaningless. But it bears emphasizing that the Court will require states to be very significantly in the minority in terms of practices to consider that they fall foul of their ECHR obligations. Take for example the recent Grand Chamber decision on the possibility of retaining indefinitely the DNA and fingerprint records of unconvicted suspects. The Chamber was unanimous in considering the practice in the UK to be unlawful. Crucially in this case, the UK was the only of 47 member states of the Council of Europe to condone such a practice. Moreover, the Court did point out the better Scottish practice of keeping the records of only some of those cleared (e.g.: of sexual offences), for a limited duration, and with a judge's supervision.

In his speech Lord Hoffmann made a link between this claimed ECHR assumption of supranational powers and the fact that it is threatening to drown under the number of petitions. That there is a severe backlog of cases in Strasbourg is obvious and requires some innovative solutions, but it is not clear how this is in any way linked to the level of scrutiny of domestic decisions. It is, rather, a symptom of the Court's success and the fact that many European citizens do see it as legitimate and as anchored in their reality.