Opinio Juris http://www.opiniojuris.org/ en-us 2008-07-09T04:07+00:00 How to Buy a Child in 10 Hours http://www.opiniojuris.org/posts/1215578095.shtml ... Chris Borgen 2008-07-09T04:07+00:00 This deeply unsettling experiment starts on a typical Monday morning on Manhattan's leafy Upper West Side, where commuters stroll by Starbucks and Central Park.

At 7:10 a.m., I'm off to see how long it takes to buy a child slave.So begins a report by ABC's Nightline. By 5:00 pm the journalist is in Port-au-Prince, Haiti, and he has made a deal to purchase an 11 year-old girl for $150.

The report shows not only the ease with which children are bought and sold but also explains the phenomenon of very poor families giving children away to be servants for slightly better-off families in the hope that they would at least be fed and clothed. But the reality includes beatings and all sorts of abuse.

To appreciate the scope of this crisis, note that UNICEF estimates that there are 300,000 child slaves in Haiti. And this is just a small part of modern-day slavery.

Read the transcript of the Nightline report here.

I'll close with an excerpt (with some boldface I have added for emphasis), in which, after making the deal for $150, the journalist meets with a second trafficker at a hotel...
This second trafficker is asking a much steeper price for an 11-year-old girl: $10,000.

"It's something definitive," explains our translator. "After the sale, he doesn't mind what happens to the kid."

"So for $10,000, I can have the child and do anything I want to do is what he's saying?" I ask.

"Yeah, definitely."

As further enticement, the trafficker says he can even get me fake papers that would allow me to take this child back to the U.S. with me. Both traffickers say they have experience providing children to Americans. According to the U.S. Department of Justice, officials have no idea how often this sort of transaction transpires. As the slightly menacing slave trafficker describes this girl he's promising to provide, I hear him use the French word "belle." French, along with Creole, is one of Haiti's official languages.

Did he use the word 'belle'? Like, pretty girl?" I ask the translator.

"Yeah."

"So he's saying this would be a pretty child?"

"Yeah."

"Do you think he's hinting that the child would be a partner of some sort?"

"Yeah, it's up to you because that kid is yours."

Once again, I can't believe I'm having this conversation -- sitting in the sunshine so casually transacting such diabolical business. Just to make sure I fully understand the offer on the table, I ask, "If I pay $10,000 I essentially own this child?"

"Yeah, it's yours. You do whatever you want."

I've heard enough. I conclude the meeting, once again making sure the trafficker doesn't actually act on my request.

But now comes the craziest part of this wildly disturbing day.

Two waiters sitting nearby call me over. They say they've heard my conversations. At first I think they're going to yell at me or something. I'm bracing for shame. Instead, the waiters offer to sell me a child.



]]> Problems in Lubanga Resolved? http://www.opiniojuris.org/posts/1215242585.shtml According to the ICC President and Prosecutor, Lubanga's trial can now continue, because the UN has agreed to turn over the disputed evidence to the Trial Chamber and the defense:... Kevin Jon Heller 2008-07-05T07:07+00:00 has agreed to turn over the disputed evidence to the Trial Chamber and the defense:
"The obstacles have been lifted," chief prosecutor Luis Moreno-Ocampo told journalists on the sidelines of a ceremony in The Hague to mark the 10th anniversary of the Rome Treaty that led to the court's creation.

Lubanga's trial would be the ICC's first.

Court president Philippe Kirsch said the main point of contention, over the prosecution's alleged abuse of a confidentiality allowances, should be resolved "shortly".

On June 13, judges imposed an indefinite stay on proceedings, due to have started last Monday, after finding that prosecutors had wrongly withheld evidence, notably from the United Nations, from Lubanga's lawyers.

This "misuse" inhibited Lubanga's ability to prepare a proper defence, they said.

Lubanga subsequently applied for release, and on Wednesday the ICC ordered him to be freed from detention. But the prosecution lodged an immediate appeal that suspended Lubanga's release.

"The UN has sent a letter authorising the other parties to have access to the documents," Moreno-Ocampo said Thursday, reiterating that he was confident the trial would kick off by autumn.
If true, this is good news indeed. It would have been very unfortunate if the ICC's first trial had been derailed by the Prosecutor's overbroad use of confidentiality agreements. But at the same time, a Gitmo-style show trial involving secret evidence would have done lasting damage to the Court's legitimacy. The Trial Chamber's decision to stay the trial was thus the right move, because it forced the UN, which is obviously deeply invested in the success of the ICC, to do the right thing and release the evidence.

The judges of the Trial Chamber deserve praise for their willingness to defend the integrity of the system at all costs. I can only imagine the political pressure that was being exerted on them behind the scenes to permit Lubanga's trial to continue. Their bravery led to the only satisfactory resolution of the problem — and helps establishes the critical judicial independence of the Court.]]> ECHR Decision on Confessions Under the Threat of Torture http://www.opiniojuris.org/posts/1215062415.shtml Antoine Buyse at the ECHR Blog has posted an analysis of Gafgen v. Germany, a decision handed down by the ECHR on Monday concerning the admissibility of evidence... Chris Borgen 2008-07-03T05:07+00:00 the ECHR Blog has posted an analysis of Gafgen v. Germany, a decision handed down by the ECHR on Monday concerning the admissibility of evidence resulting from statements made under the threat of torture. Here's the background:
In 2003, the applicant, Magnus Gäfgen, was sentenced to life imprisonment for the murder of J., the eleven year old son, of a rich bankers family from Frankfurt am Main. Gäfgen had lured the boy into his home and subsequently killed him. That same day he dropped the corpse of the boy into a pond. He had then demanded a ransom of one million euros from the family, without disclosing that J. was already dead. Shortly after picking up the ransom, Gäfgen was arrested.

The case centres on what occurred next: thinking that the boy was still alive but in grave danger, the police officers questioning Gäfgen threatened him with considerable pain if he did not reveal where the child was. As a result, Gäfgen disclosed where the corpse could be found. At the start of the trial, Gäfgen complained that his confession had been made under the threat of torture.
Buyse explains that:
The Court first concluded that the threat, would it have been carried out, would have amounted to torture and that a threat of torture amounted to inhuman treatment. The threat itself, however, was not torture.
The opinion then states:
the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture. However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (...), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.'s life, elements which can be regarded as mitigating factors...
Buyse's post considers this issue of mitigation (which he finds "somewhat puzzling" in light of the absolute prohibition on torture) and the balancing test that the ECHR seems to use in deciding whether or not torture has taken place. For a full explanation of these issues, as well as how this affects evidentiary and fair trial issues under the European Convention, see his full post.
]]> Lubanga Released -- In Theory http://www.opiniojuris.org/posts/1215026433.shtml As I anticipated a few days ago following the UN's refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga... Kevin Jon Heller 2008-07-02T19:07+00:00 a few days ago following the UN's refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga Dyilo's unconditional and immediate release:
30. As just set out, the Chamber's Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.
The Trial Chamber's decision, however, does not mean that Lubanga will walk out of the Hague anytime soon. First, despite releasing him "unconditionally" and "immediately," the Court stayed his actual release pending appeal of its order by the Prosecutor:
35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.
The Prosecutor will no doubt ask the Appeals Chamber to suspend the release order, which means that Lubanga will remain in detention until the Chamber resolves the appeal, however long that takes.

Second — and I doubt this aspect of the order will receive much media attention — the Trial Chamber indicated that Lubanga will be released only if a State is willing to take him:
36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.
That requirement could be a serious problem for Lubanga. I predicted in my forthcoming article "What Happens to the Acquitted?" that ICC acquittees will find it no less difficult to find new homes than ICTR acquittees like Ntagerura and Rwamakuba, and I am confident — sadly — that Lubanga's "release" will prove me right. There is no way the DRC will take him; he is, after all, a rebel. And it is very unlikely that any other State will be enthusiastic about having an accused war criminal walking free on its territory. So I fear that Lubanga may end up sharing the same fate as Ntagerura and Rwamakuba: being "free" to enjoy living as a virtual prisoner in a UN safehouse. ]]> A Response to Galit Sarfaty http://www.opiniojuris.org/posts/1214934863.shtml Sarfaty’s reply addresses a fundamental problem with conflating norms with binding legal rights. In my article, I argue that the classification of a potential human right—like participatory development—may be seen... Martin Totaro 2008-07-02T17:07+00:00 Sarfaty’s reply addresses a fundamental problem with conflating norms with binding legal rights. In my article, I argue that the classification of a potential human right—like participatory development—may be seen as operating on a continuum. On one end of the continuum exists a norm. On the other end exists a rule of customary international law. As a norm “crystallizes,” it has the potential to move along the continuum toward attaining recognition as legal right. My article suggests that, while the norm/law continuum is fluid and dynamic, the current requirements of CIL mandate that an international human rights norm not be viewed as an international human rights law until states and major intergovernmental organizations like the World Bank consistently practice participatory development out of a sense of legal obligation.

Sarfaty responds by correctly noting that “it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation.” As Andrew Guzman and others have pointed out, one reason for this difficulty is that major international actors talk and act, but do they really “think?” If not, then we are left with studying what these actors say and do to understand whether these actions are taken out of a sense of legal obligation. With respect to participatory development, that means looking at how the World Bank and its biggest donor engage in the practice of participatory development.

The examples I provide demonstrate that the World Bank has been slowly internalizing some version of a participatory development norm. The Bank has devoted a large number of resources in an attempt to practice (or, at a minimum, to have the appearance of practicing) participatory development. Sarfaty, however, challenges my choice of internalization examples because “project-level participation is a better indicator of whether the norm of participatory development has been internalized.”

I think Sarfaty must be correct. I also think that her critique tends to support two of my points.

First, while the participatory development norm has been slowly crystallizing within the Bank, that process is neither complete nor certain to achieve full internalization. The World Bank has set up bureaucratic structures to support participation by various stakeholders, but Sarfaty points out that these structures do not guarantee that stakeholders on the ground are having a say in Bank projects that will affect their lives in a very real way. Still, if we compare the Bank’s willingness to, for example, fund projects that are “community-driven” (p. 759), shift its country directors from Washington, D.C. to the particular country (p. 760), or augment its funding of civil society partnerships (p. 760) with Bank practices prior to the mid-1980s, we see a marked difference in how the Bank practices participatory development. While participation at the project-level could certainly be more robust, greater internalization at more macro levels also suggests that the norm is in some form being crystallized.

Second, there is no generally-agreed definition for what counts as “participatory” in “participatory development” (pp. 736-39). This definitional quagmire returns us to the problems of satisfying the requirements of CIL. On the one hand, it is difficult to show that a more specific definition of participatory development—Sarfaty’s, for instance, seems to require project-level participation by affected stakeholders—has satisfied the two requirements of CIL. On the other hand, a vague definition runs the risk of being empty rhetoric that does not require the World Bank to do much of anything, let alone out of a sense of legal obligation.

Sarfaty concludes her response by asking whether one should distinguish between legal internalization and social or political internalization. My answer, both here and in the article, is an emphatic “yes,” and the current requirements of CIL provide the place for us to look to discern whether a moral norm has attained status as an international human rights law.
]]> Unpacking the Participatory Development Norm: Galit Sarfaty Comments http://www.opiniojuris.org/posts/1214934373.shtml [Galit A. Sarfaty is a Fellow at Harvard Law School's Program on the Legal Profession, and a Ph.D. Candidate in Anthropology at the University of Chicago]... Galit A. Sarfaty 2008-07-02T14:07+00:00 Galit A. Sarfaty is a Fellow at Harvard Law School's Program on the Legal Profession, and a Ph.D. Candidate in Anthropology at the University of Chicago]

I would like to thank Opinio Juris and Martin Totaro for the opportunity to comment on this engaging article. The piece is an excellent contribution to existing literature on norm development and international human rights law. Particularly important is his discussion of the “crystallization” process by which a norm shifts to a human right with corresponding legal obligations. This process has been largely overlooked and is very worthy of study. Totaro is correct to observe that classification of a norm as a legal right is not binary but operates on a continuum. One goal of his article is to distinguish between moral norms and legal human rights. While I agree that such a distinction is useful on a theoretical level, it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation. I would welcome Totaro’s thoughts on this issue and his recommendations on how scholars can distinguish the two in practice when conducting research on norm internalization.

My comments primarily focus on the second half of the article. Here, Totaro provides a case study of how the norm of participatory development is beginning to crystallize into a legal human right. Yet in attempting to demonstrate that the World Bank is slowly internalizing the participatory development norm, Totaro relies on insufficient examples that do not adequately establish his claim. Advocates often interpret the norm of participatory development as referring to participation by stakeholders in project design and/or implementation, rather than participation in country-level dialogues. Totaro’s examples are all from the latter category—e.g., the development of Country Assistance Strategies (CASs) and Poverty Reduction Strategy Papers (PRSPs)—so they do not fully address whether the Bank has internalized the participatory development norm in its operational practice. Furthermore, he argues that Global Monitoring Reports “represent a major step forward” in the Bank’s adoption of the norm, yet his main evidence is the level of transparency and accountability in the reports rather than participation (p. 752). His only example of participation around the reports involves the Center for Global Development, a U.S.-based policy NGO that does not represent the typical stakeholder of Bank projects.

I argue that project-level participation is a better indicator of whether the norm of participatory development has been internalized. Instead of only examining participation in country dialogues by select NGOs, one should also evaluate the level of participation by community-based stakeholders that are directly or indirectly affected by development projects. This type of participation is usually mediated by the World Bank rather than the state government. In order to provide an example of project-level participation, I suggest that Totaro discuss the important debate over prior informed consent by potentially affected communities, which was a central issue during the recent revision of the Bank’s Indigenous Peoples Policy (Operational Policy 4.10). Many indigenous communities and human rights advocates have argued that there is a right to prior informed consent, while others claim that it is simply an emerging norm that is not yet recognized under customary international law. The example of prior informed consent suggests that whether the Bank is internalizing this important component of participatory development is highly contested.

Totaro’s final example of “the fluid process between moral norms and legal human rights” is former Bank President James Wolfensohn’s embracing of human rights in non-legal terms (p. 762). This section appears to conflate the right to participatory development with human rights in general. It also relies solely on Wolfensohn’s statements as an indication that the Bank is not implementing the norm out of a sense of legal obligation. But one cannot make this assessment without examining how actual Bank employees are implementing the norm and whether they are accepting it as a binding legal obligation. Totaro raises a related point a bit earlier in his piece, when he rightly observes that the Bank’s governing body and the bureaucrats working inside the institution may hold competing preferences (p. 757). Yet his discussion of “the inevitable bureaucratization of rhetoric” fails to account for the internal tensions within bureaucracies over whether and how to operationalize rhetoric (pp. 758-61). Based on my own experience ethnographically studying the organizational culture of the Bank, the bureaucratization of rhetoric is certainly not inevitable. It is important to recognize the complex decision-making process within bureaucracies that may work against norm internalization, even when those norms are supported in rhetoric.

Finally, it would be useful if Totaro outlined what he sees as the conditions for norm internalization. If Totaro is correct that it operates on a continuum, then what are the different levels before full internalization is reached? Should one distinguish between legal internalization and social or political internalization? Addressing such issues would further strengthen this article and its contribution to existing literature in international law and human rights.

]]> Legal Positivism, Constructivism, and International Human Rights Law: The Case of Participatory Development http://www.opiniojuris.org/posts/1214934090.shtml [Martin Totaro is an associate at Baker Botts in Washington, D.C. These views are his alone. Please find his SSRN author page here.]... Martin Totaro 2008-07-02T11:07+00:00 Martin Totaro is an associate at Baker Botts in Washington, D.C. These views are his alone. Please find his SSRN author page here.]

Thanks to Opinio Juris for providing an outlet for VJIL authors to express their ideas to a wide audience, and thanks to VJIL for including me as one of those authors. Galit Sarfaty has graciously agreed to respond.

In my article, I attempt to make two modest contributions regarding the relationship between international law and norm internalization. First, I offer a typology that bridges the basic tenets of legal positivism and constructivism for the purpose of providing a useful framework to separate moral norms from human rights that have attained customary international law (CIL) status. Second, by using an illustrative example—the purported right to participatory development—I aim to demonstrate how the sociopolitical process of pushing toward the legalization of a moral norm can be a vibrant, robust procedure that need not prematurely accord CIL status to a norm still in the adolescent stage of rights formation under international law.

Under a commonly accepted definition of CIL, a norm only becomes a part of CIL because of general and consistent state practice taken out of a sense of legal obligation. My article focuses in part on how an international human rights norm may be internalized such that states engage in or respect the validity of a moral norm (the usage or practice prong), but states might not do so out of a sense of legal obligation (the opinio juris prong). In other words, a state may respect the moral legitimacy of a norm while simultaneously opposing the norm as a binding legal obligation.

Several scholars, including Galit Sarfaty, have focused on the dynamic process of norm-internalization at the supra-national, national, and sub-national levels. My article enters this debate by concentrating on the fluid process of norm-internalization, paying particular attention to the crystallization period but prior to a norm attaining CIL status. My analytical framework borrows from legal positivism and constructivist theory in international relations literature. As used here, at its most basic, oversimplified level, legal positivism emphasizes “the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be.” H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 594 (1958). Constructivism, in contrast, refers to the process by which states and other major international actors internalize norms in a manner that has the potential to change these actors’ interests. For constructivists, a norm entrepreneur has the potential to change these actors’ interests. When combined as an analytical tool, “constructo-positivism” retains the key insights from both schools of thought—while CIL and non-CIL norms should not be conflated (i.e., distinguishing between the “is” and the “ought” in CIL), CIL can expand when a norm crystallizes to the point that major international actors engage the norm consistently and out of a sense of legal obligation. Put differently, the constructo-positivist as an explanatory matter separates moral norms from legal human rights but as a normative matter recognizes and even supports the process of legalization of certain norms.

The constructo-positivist framework provides a fresh look at the relationship between international human rights norms and legal human rights. These norms, grounded in a moral claim that a right should be viewed as binding in an international legal sense, do not attain this legal status simply because advocates push for such recognition. Rather, advocates of a particular right-claim must demonstrate that this right has become part of international law through accepted legalization conduits like treaties or CIL.

After laying out a typology of constructo-positivism, the article then applies it to the current debate over whether participatory development is a legal human right. I conclude that it is not—while major international actors like to United States and the World Bank may accept the legitimacy of participatory development as an aspirational norm, these actors do not engage in participatory development out of a sense of legal obligation.

While I argue that participatory development is not a part of the body of CIL, I then turn to how norm entrepreneurs are pressuring the Bank to internalize the right to participatory development.

These efforts have been partially successful. I examine the rhetoric and practice of the Bank with respect to participatory development, and find that, over the past twenty or so years, there has been what might be called “the inevitable bureaucratization of rhetoric.” In 1985, the World Bank discussed the virtue of participation in broad terms. Ten years later, we saw a shift toward more specific rhetoric about what participation really means. In 2005, we saw not only more complicated rhetoric, but also more structures built around this rhetoric. I focus on World Bank programs like Poverty Reduction Strategy Papers and Global Monitoring Reports that illustrate how, as the rhetoric itself developed, a wide array of norm entrepreneurs pressured and worked with the Bank to enact accountability structures to match the participatory rhetoric.

I conclude by suggesting that this process of norm-internalization indicates growing acceptance of the virtues of participatory development and its widespread practice by major international actors like the World Bank. The next shift for participatory development norm entrepreneurs will be to attempt to push for the internalization of the legal status of the norm rather than the legitimacy of the norm itself. While this norm has not yet been internalized to the point where the World Bank engages in participatory development out of a sense of legal obligation, it has been internalized as an aspirational norm.

]]> Italy to Fingerprint Roma -- But No One Else http://www.opiniojuris.org/posts/1214891520.shtml The persecution continues:... Kevin Jon Heller 2008-07-01T05:07+00:00 The persecution continues:
Italian Foreign Minister Franco Frattini said Monday the government would press ahead with plans to fingerprint ethnic Roma, including children - a move branded as discriminatory by European Union officials. Frattini - the EU's top justice official before he joined Prime Minister Silvio Berlusconi's cabinet - was commenting on remarks made Sunday by Interior Minister Roberto Maroni, who described critics of the plan as "hypocrites."

"I think Minister Maroni has done well to continue on the path he has outlined," Frattini said. "We are not talking of raids (against Roma communities) or anything of the sort, but a measure to identify those living in our country."

"These things are being done by many other countries in Europe without causing any scandal, and as such, they should also be done here," Frattini added.

The measure, according to Frattini, would serve to protect Roma children, who often live in shanty settlements and are not registered to attend school.

Maroni, who is from the anti-immigration Northern League wants to include the fingerprinting in a security package designed to crack down on illegal immigrants and child beggars, many of whom are ethnic Roma (colloquially known as gypsies).

The plan has drawn widespread criticism including from Catholic and United Nations officials, human rights groups and Italian opposition parties.

Last week a spokesman for the European Commission, the EU executive, said member states singling out an ethnic group for fingerprinting would be breaking EU rules.
Shameful. No, they're not talking about raids now -- they're talking about a way to make future raids more effective, by dramatically increasing the government's ability to identify and locate citizen and non-citizen Roma alike. What's next, making the Roma wear brown triangles? ]]>