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Global injustices: getting access to the law is still impossible for most
by Guardian News, UNDP, agencies
Martyn Day is famous for winning ‘unwinnable’ David-Goliath cases, but the head of the legal firm who took on Shell Nigeria is gloomy about the state of international law.
“Well, it’s a fairly depressing landscape,” says Martyn Day. He doesn’t seem particularly depressed as he says it. In fact, he seems positively cheerful, radiating all the satisfaction and energy of a man doing a job he loves.
That is probably at least partly because his legal firm Leigh Day, which specialises in ensuring “that the ordinary person has just as good quality legal advice as our state bodies, insurers and multinationals” has just pulled off a legal coup in the form of a settlement with Shell Nigeria for £55m. Leigh Day represented 15,600 Ogoni farmers and fisherman whose livelihoods were shattered after a two large oil leaks in 2008 and 2009. The original offer from Shell, back in 2011, was £4,000 for the whole community.
Day is, obviously, very pleased to have got the settlement, although scathing about Shell’s behaviour. “The Shell case has shocked me,” he says. “The idea that they could have offered that community £4,000. All they were interested in was seeing what they could get away with, that really shocked me to the core. Even I, cynical as I am about all these CSR things, assumed Shell would be better than a lot of other people.”
Holding corporations and governments accountable, and championing the human rights of individuals has always been the focus for Leigh Day. Their 2012 victory for the Kenyans who were tortured by the British government during the Mau Mau rebellion is, says one law expert, “one of the landmark cases of the last few years”. Day grins when I mention it. “Oh yes, I loved that case. Nobody thought we had the slightest chance.Being able to get them justice was absolutely fantastic. To give these people the power to take on the might of the British government was just fabulous, and it’s what we are about.”
But those cases, by and large, are exceptional. According to Day the UK’s justice system is “very good for bringing justice to people in the developing world for the operations of multinationals in that country”. He says that the unified judicial system means that cases move forward quickly. “Our judges have been excellent in saying ‘cut to the chase’.”
But in other parts of the world holding multinational companies accountable for their actions is extraordinarily difficult. Day says that the civil code in Europe “does not work in these big cases”. His colleague Daniel Leader clarifies that disclosure rules on the continent tend to be “much less onerous than in Britain”. Moreover a different financial set-up makes the cases “economically unviable”.
Meanwhile in the States, says Day, “you can get bogged down with procedural hurdle after procedural hurdle”. The difficulty has been increased with the recent Supreme Court decision which it ruled the Alien Tort Claims Act does not apply outside of the country and dismissed a case against Royal Dutch Shell.
In an ideal world, people seeking justice from a multinational would go through their local court system. “Normally you’ve got a subsidiary, so you can nearly always go through the courts of the local place where it all took place,’ says Day. “The problems are firstly that you have to find the costs, secondly the process will take many years and third is corruption.” Day gives examples in Nigeria where he traditionally chiefs bring a case against a company. “If the case is ever resolved, even decades later, the money will go to the chiefs and the poor fisherman or farmers who suffered most of the loss are very unlikely to see any of it,” he says.
Leader adds that the situation in places like South Africa is improving. “But in some countries, like the Congo, there’s no chance of any justice at all, and a corporate accountability case is 20 years off.”
So, if a government abroad or a multinational company is acting up in some way - perhaps dumping waste or mistreating workers - what can be done about it? Do they get a free pass? Day nods. “Yes, I think that’s absolutely true. It is a totally depressing landscape. I feel good that we’ve got a system here that works, but it is very unusual and we do not fall over other lawyers from other jurisdictions when we are out and about around the world.”
It’s an issue that should be seriously worrying the international community. At the turn of the century there was increasing recognition that as trade expanded across the world, it would be important to give citizens safeguards, and equally give corporations responsibilities. The UN drafted a document that would impose the same human rights duties on businesses that states have already accepted, but they immediately met fearsome resistance to any kind of regulation from the business community, and so in 2005 John Ruggie was appointed the UN Secretary-General’s Special Representative for Business and Human Rights, and given the task of coming up with a set of principles. The United Nations Guiding Principles on Business and Human Rights, published in 2011, is based on the idea of three pillars; “Protect, respect and remedy”.
The first pillar represents the duty of the state to protect its own citizens; the second the duty of corporations to respect the rights of those citizens, and the third “the need for greater access by victims to effective remedy, both judicial and non-judicial”.
The response has not been as powerful as anyone hoped. Day, who was pleased that “remedy” was seen to be a vital part of the UN’s principles, was nevertheless disappointed overall. “I thought he did as good job as you could, the disappointing thing has been the reaction to it.” Day says that politicians and NGOs should have built on Ruggie’s work, but instead “the impact of it is depressingly limited”.
Obviously he operated within massive restrictions. I think the job was really for the rest - the politicians, the NGOs to get in there, and do something with it, but i think generally, the final implications are limited.”
In the meantime, his colleague Leader suggests that “we need to develop a network of international lawyers who will find remedies for multinational corporations acting with complete impunity in these countries”. They already have close links with lawyers in the US, France and the Netherlands. “Ruggie is not a lawyer,” he points out. “And I think he’s seriously underestimated the steps that need to be taken to bring true remedy.”
Leigh Day is currently preparing for a particularly titanic case; representing the Caribbean nations in a claim for reparations for slavery. It’s exactly the sort of case that enrages critics on the right wing (“Yeah, I’m not waiting for my Christmas cards from the Mail and the Torygraph”) and Day is guarded about the chances of success. “Much will depend on the determination of the Caribbean states and the response of the British government,” he says.
Societies can''t be inclusive without equal access to justice
Inaccessible judiciaries can make women and minorities more marginalised. Training judges in local languages and targeting legal aid can help make legal systems more inclusive
justice. The lack of access to justice is widespread in many countries in Asia, Africa and post-Soviet bloc states says AH Monjurul Kabir.
Unhindered access to national judicial system is critical to human dignity and inclusive development. It gives meaning to the equality before law principle. In fact, the integrity, independence and impartiality of the judiciary are essential to protecting human rights and fostering economic development.
But is this enough to ensure social justice and an inclusive legal state? Unfortunately, for disadvantaged and vulnerable groups and marginalised communities across the world, the lack of access to justice is widespread.
The status of the judiciary has proven to be a key weakness of many post-communist regimes, as confirmed by many evaluations of national judicial systems, processes and components.
Can access to justice influences judicial integrity?
Most people associate judicial integrity with an accountability, transparency and integrity. But without unrestricted access to justice, does judicial integrity really exist? Can it survive beyond glorious declarations or official pronouncements? If people do not have access to judicial services, they will not be able to get redress, and, judge quality of justice. It is likely that public confidence in the judicial system will suffer.
The challenges for marginalised communities and vulnerable groups in accessing justice are even greater due to historic reasons, discrimination, economic deprivation, political marginalisation. All these, as Amartya Sen argued in his seminal book The idea of justice, " … will diminish the role of public reason in establishing what can make societies less unjust."
Based on a recent UNDP analysis of national studies carried out in Bosnia and Herzegovina, Kazakhstan, Kosovo, Kyrgyzstan and Serbia during 2011-12, it is fair to say that there are institutional capacity and knowledge gaps in judicial institutions to address the needs of specific segment of population: women, minorities, persons with disabilities.
This is worrying as it erodes people''s confidence in the justice system, and, limits the access to, and quality of justice. This strongly resonates in many developing and middle-income countries from Asia and Africa.
The Bangalore principles of judicial conduct set out six principles to guide the proper discharge of the judicial office: independence, impartiality, integrity, propriety, equality, and competence and diligence. Furthermore, the United Nations office on drugs and crime recently released an Implementation guide and evaluative framework for Article 11 of the UN convention against corruption.
These are positive first steps towards making equal access to justice a reality, but it is crucial that we now act on these guidelines to address the specific needs of those who are most in need of judicial services.
To act, we must first identify the key barriers faced by disadvantaged and vulnerable groups in protecting their rights and accessing legal protection mechanisms. A recent report from UNDP found that the main barriers experienced by women, people with disabilities and minorities are: widespread poverty, discrimination, public prejudice, low education, and illiteracy.
It was also found that judges, lawyers and court staff lack sufficient awareness of the specific needs of these groups.
Further compounding the issue is that marginalised groups do not have equal opportunities when it comes to political participation and are underrepresented in political decision-making within the legislative, executive and judicial authorities at all levels.
Also, a lack of political will and rigid cultural norms do not favour the improvement of conditions for women, people with disabilities or minorities.
Although most countries have adopted policies for addressing the judicial needs of marginalised communities, none has outlined specific activities or allocated resources to enact these policies in the real world.
In this light, many international organisations and national governments are working on providing a strong link between policy-level interventions and operational outcomes in order to make an impact on the lives of target groups. This will require a comprehensive approach throughout the region to maximise connections among the different stakeholders and to act as a platform for promoting the co-ordination and capacity development of national actors to engage in planning, reform and multi-stakeholder dialogue.
Inclusion and participation of poor people can be ensured through a range of mechanisms. For example, the World Bank in Latin America taking concrete measures through projectised interventions. It is training judges and other court personnel in local languages and cultures to promote access to marginalised communities in Guatemala.
Projects in Colombia, Guatemala, and Peru are experimenting with decentralised court services as well as services offered by travelling judges and public defenders.
Recently, UNDP introduced legal aid for justice, an initiative designed to provide comprehensive support to legal aid systems across different regions, using the UN principles and guidelines on access to legal aid in criminal justice systems as its foundation. This initiative will be further deepened by a series of related studies and publications based on the needs of individual countries.
Achieving judicial integrity is not a top-down, supply-driven process. We need to ensure genuine civic engagement, especially with young people, in order to empower women, disadvantaged and vulnerable groups—and create a bottom-up demand for judicial accountability.
* AH Monjurul Kabir is a lawyer and governance adviser, specialising in rule of law, justice and human rights. This is an abridged version of this blog was originally posted in the United Nations Development Programme''s Voices from Eurasia: http://www.theguardian.com/global-development-professionals-network/2014/feb/20/justice-women-social-inclusion-development
Mexican state hands down historic sentence for femicide
by Reuters, CIP Americas Program, agencies
Mexico City, July 28, 2015 (Reuters)
Five men in northern Mexico were sentenced to an unprecedented 697 years in prison for the gender-driven killing of 11 women, in a state where hundreds of young women have been murdered since 1990.
The sentence was the longest-ever given for a femicide, the killing of a woman due to her gender and was based on scientific evidence, said an official at the attorney general''s office in the state of Chihuahua, home of the border city of Ciudad Juarez, which in 2008 recorded one woman missing each day.
"They used ploys to recruit young women into prostitution" Chihuahua''s attorney general''s office said in a statement. "Then, when they were no longer ''useful,'' they took their lives and threw their bodies in the Navajo Arroyo, in the Valley of Juarez."
In addition to prison time of nearly 700 years each, those sentenced also have to pay a total of 9 million pesos ($550,000) in damages to the families of the victims, whose bodies were found in 2012.
Authorities have prosecuted some of the cases but have not always handed down long prison sentences due to the ambiguity around declaring femicides, and also to the overall high rate of impunity in the country, where many crimes go unpunished.
Mexico''s Supreme Court in March for the first time ordered that a case be probed as a femicide, after prosecutors in the State of Mexico initially labeled it a suicide, based on an investigation seen as plagued by anomalies.
The National Citizen Femicide Observatory, a coalition of human rights groups, believes that some 3,892 women were murdered in Mexico between 2012 and 2013, but only 16 percent of cases were investigated as femicides.
http://www.cipamericas.org/archives/15598 http://www.cipamericas.org/archives/13916 http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/CDDandCMDPDH_forthesession_Mexico_CEDAW52.pdf
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