Thursday, December 16, 2010

IntLawGrrls

IntLawGrrls

The European Court of Human Rights on Abortion in Ireland

Posted: 16 Dec 2010 09:56 AM PST

This morning in A, B & C v Ireland the European Court of Human Rights held that Ireland's failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right". That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a "real and substantial risk" to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a "human right to abortion". That should immediately put any claims of 'European interference' to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the "chilling effect" of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland's most persistent social and legal controversies.

There is more commentary, including from IntLawGrrls alum Máiréad Enright, on Human Rights in Ireland.

Guest Blogger: Lesley Wexler

Posted: 16 Dec 2010 03:25 AM PST

It's IntLawGrrls' great pleasure to welcome Lesley Wexler (right) as today's guest blogger.
Lesley's an Associate Professor of Law at the University of Illinois College of Law, Urbana-Champaign, also the home institution of IntLawGrrls guest/alumna Jacqueline Ross. Lesley joined the Illinois faculty this year from Florida State University College of Law. She also has taught at the University of Chicago Law School, as a Harry A. Bigelow Law Fellow. Her courses include Torts, Laws of War, and International Environmental Law.
Lesley earned her B.A. with honors from the University of Michigan and her J.D. with honors from the University of Chicago. She was an Articles Editor for the University of Chicago Legal Forum and an Associate Editor of the Chicago Journal of International Law. She clerked for Judges William Wayne Justice, U.S. District Court for the Eastern District of Texas, and Thomas Reavley, U.S. Court of Appeals for the 5th Circuit.
The subject of a prior post by IntLawGrrl Jaya Ramji-Nogales, Lesley focuses her scholarship on the intersection of social norms with the areas of international human rights, the law of war, and anti-discrimination law. The focus is evident in this list of publications and works in progress.
In her guest post below, Lesley uses her recent article on "Resource Curses" as the basis for analysis of recent efforts to put an end to human rights violations in diamond fields in Zimbabwe.
Heartfelt welcome!

Kimberley Process & Zimbabwe diamonds

Posted: 16 Dec 2010 02:00 AM PST

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which natural resource abundance creates governance problems.
Yet international legal scholarship has been slow to recognize the relationship between freer trade and the financing of internal conflicts. My recent article, "Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime," published earlier this year in the Cardozo Law Review, looks closely at a recent effort to address the global trade in so-called blood diamonds as a potential model for resource curses more generally.
I develop a case study of the Kimberley Process, an international diamond tracking regime (prior IntLawGrrls post), by investigating both the scope of the institution's regulatory reach as well as the mechanisms by which members promulgate and enforce those regulations. The article focuses on the unique coalition of nongovernmental organizations, corporations, and states, and on the unusual international arrangement upon which they agreed.
Evidence from the evolution of that institution suggests that although designers may indeed seek to maximize their own interests, what determines whether an institution can regulate effectively, and when it may move beyond the designers' original interests, are legalization elements of that international institution. These include:
► The obligations the regime creates;
► The precision with which those obligations are defined; and
► The possible delegation of interpretive and enforcement efforts.
In accumulating and assessing this evidence, my article contends that while skeptics may correctly identify the Kimberley Process's initial alignment with state and corporate interests, this lightly legalized regime provides an opportunity for substantial progress on human rights. Although the Kimberley Process might appear as an attempt to whitewash state and corporate abuses, over time, the institution can -- even though it need not necessarily -- evolve to address both the rebel-induced and state-inflicted human rights violations related to the diamond trade.
The article acknowledges 2 factors:
► The importance and potential stickiness of initial design choices; and
► The fact that institutional evolution in favor of issue expansion and greater enforcement is merely feasible rather than inevitable.
Thus, this article demonstrates some of the possibilities and limitations of looking to the Kimberley Process as a model for resource curses, and more generally for other areas in which NGOs seek to align state, corporate, and human rights interests.
Developments which occurred after my article went to press suggest that the Kimberley Process has in fact tried to address state-initiated human rights abuses. In so doing, it is facing some substantial state resistance:
► In 2009, the Kimberley Process sanctioned Zimbabwe for bad behavior in the newly discovered Marange diamond fields. Rather than expel Zimbabwe, members suspended its exports. By November 2009, Zimbabwe agreed to a joint work plan to restore compliance by eliminating smuggling, allowing greater monitoring, and reducing military abuses against civilian miners. Despite these promises, Human Rights Watch reported that as late as September of 2010, soldiers still control large portions of these Zimbabwe fields and continue to violate the human rights of the local miners. (credit for 2006 photo by Tsvangiray Mukwazhi/Associated Press of women and men miners at Marange)
► A November 2010 Kimberley Process meeting failed to reach agreement on whether to lift all export limitations, and thus kept the suspension in place. Zimbabwe's monitor responded by unilaterally certifying millions of diamonds which are already beginning to make their way to market.
►Many speculate that a December 2010 WikiLeaks posting will influence an ongoing Kimberley Process meeting on the Zimbabwe export question. The 2008 U.S. government cable states:

'In a country filled with corrupt schemes, the diamond business in Zimbawbe is one of the dirtiest.'
► Meanwhile, NGOs such as Global Witness and World Vision have stopped short of calling a boycott, but asked consumers and retailers to act more vigilantly in ensuring that diamonds purchased over the holiday season have not funded violence.
If Zimbabwe continues on its current path of non-compliance, or pulls out of the process entirely, many fear the diamond industry will return to the bad practices of the 1990s, in which widespread human rights abuses were common.
Others suggest, however, that targeted pressure campaigns could convince industry networks to reject working with those that trade in these blood diamonds and persuade individual consumers not to purchase them.
Only time will tell. But this article illuminates the institutional mechanisms that will facilitate success or failure on the Zimbabwe problem.

'Nuff said

Posted: 15 Dec 2010 11:10 PM PST

(Taking context-optional note of thought-provoking quotes)

'On the battlefield it does not matter who you love. Only the flag that you serve.'

-- U.S. Rep. John Lewis (D-Georgia), commenting on yesterday's House OK of a bill to repeal "don't ask don't tell," the 1993 statute that bars gays and lesbian from serving openly in the U.S. armed forces. The House vote was 250 to 175. Still unclear whether the Senate will consider this standalone bill during the soon-to-end term.

On December 16

Posted: 15 Dec 2010 09:04 PM PST

On this day in ...
... 1773, the deadline date for the collection of taxes pursuant to the Tea Act recently passed by the Parliament in London, "some 50 men, unconvincingly disguised as Mohawk Indians," broke out in "war whoops" as they boarded 3 English vessels, split open its cargo of tea, and threw it into the harbor. This Boston Tea Party


was quickly restaged in other port cities in America and tended to polarize the sides in the widening dispute.


(image credit) As time would tell, the American Revolution was just a few years away.

(Prior December 16 posts are here, here, and here.)
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