Ecuador opens its borders to universal citizenship: a step forward on the way to equality of peoples?

In principle, open borders might tend toward the respect of international equality; but in practice it does not necessarily provide more equality for vulnerable populations. It can actually enable profiteers to benefit from less supervised borders and trick desperate people into leaving their home for the American dream. Opening borders may not be enough: if an immigrant finds himself inside the country but excluded from the local community, like those who do not have papers in Ecuador, he may not be illegal but he is not legal either. Future experiences of open-borders may be more positive, who knows; but the Ecuadorian situation can hardly be called a success.[i]

Borders are quite representative of the current state of international affairs: each state, as the supreme authority, decides who comes in and who gets to stay on its territory. Some countries are lucky, like Canada: being very attractive to most, Canada can pick and choose as it pleases. For immigrants, coming to Canada generally means an important improvement of living conditions and revenue. Thus, Canada has strict immigration policies that allow it to discriminate against immigrants that may not be as “desirable” for the Canadian society.

Now this raises the question: are borders and discriminatory immigration legitimate? Is it possible to administrate a country without borders? Does international equality require open borders? If a country suddenly changes its policy and opens…

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Is the Pedestal-ing of the “Rule of Law” Cause for Concern?

The “rule of law” has been put on a pedestal in international political and development discourse. No other “idea” (I am not quite sure what it is) shares its privileged place in our legal imagination. No other idea, Brian Tamanaha says, has achieved such a “global endorsement”.[1] Thomas Carothers laments that:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where…

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Les droits de la personne sont-ils vraiment un “concept occidental”?

Les droits de la personne sont-ils seulement une expression moderne des ambitions impérialistes de l’Occident? Sont-ils une façon détournée de permettre aux pays occidentaux d’imposer leurs valeurs et leurs perceptions ? Devrait-on s’en méfier comme des représentants du néo-colonialisme? Manquent-ils de légitimité?

Je ne remets pas en question que l’application des droits de la personne puisse soulever des discussions et des désaccords. Je crois qu’il va sans dire que le concept de « liberté » ne représente pas exactement la même chose pour tous les habitants de la planète. Par contre, est-ce que quelqu’un s’est déjà prononcé contre la liberté? …Et si quelqu’un le faisait n’userait-il pas pour ce faire de sa liberté d’expression?  Les droits de la personne ne sont pas que des concepts juridiques, ils représentent des réalités bien concrètes.

Sans s’étendre dans l’analyse de chaque « droit », il est préférable de tenter de circonscrire le débat aux droits fondamentaux, aux droits qui peuvent trouver une représentation ou une autre dans diverses cultures, mais qui demeurent présents dans les systèmes de valeurs. Pour partir de droits très généraux, voici ma liste[1] : la liberté, l’intégrité, la dignité, la vie. Ces droits en englobent de nombreux autres, mais leur interprétation dépendra des choix culturels.

Il est important de revenir à l’objectif fondamental des droits de la personne : assurer un respect à la dignité de chaque être humain, donner une valeur juridique…

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Two Worlds Apart: Canada Supports the Rights of a Niqabi Woman while France Approves Law Banning the Niqab in Public

If there existed an award for Controversial Clothing Garment of the Year, surely the niqab would grab the prize for 2010.[1] The niqab took the spotlight earlier this year when Quebec proposed legislation that would prohibit the wearing of the niqab for an individual seeking a government service. After a pause of several months, the hearing on the proposed legislation resumed on Tuesday (19 October 2010), though this issue has temporary drifted away from national interest.

However, the niqab has been garnering increasing attention elsewhere. In the past two weeks, two important decisions were released concerning the niqab. On 13 October 2010, the Ontario Court of Appeal opined that a niqab woman’s right to wear to the niqab in a sexual assault trial must be given due consideration. A week earlier in France, the Constitutional Council gave its approval on the constitutionality of legislation banning the niqab in public spaces. Admitted, the two decisions do not touch on exactly the same matter. Nonetheless by contrasting the decisions, one starts to sense a “Canadian flavor” in they way our courts address controversial issue where freedom of religion is implicated. The Court of Appeal’s strong push for reconciliation of rights, as well as its interest in affording a niqabi woman substantive (over formal) equality, provides some indication that multiculturalism is actively playing a role in the way the Canadian…

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Legal Pluralism – A Primer

A number of my previous blog postings made extensive reference to the buzzword “legal pluralism” which one finds abound in contemporary legal literature. Instances of legal pluralism can be found in the recent debate on faith-based arbitration in Ontario, in the Beth Din courts of New York, and in the family law structure of the Philippines.[1] A discussion on the very term “legal pluralism” is important so that its underlying assumptions can be uncovered and scrutinized rather than passing the relevant discussion unnoticed.

I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the…

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Legal Pluralism in Afghanistan Revisited: From Theory to Practice

In one of my earlier blogs focusing on Afghanistan, I spoke about the possibility of reconciling the various systems which exert authority within the country. The next question that arises is what this actually mean for Afghanistan.

Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all

…

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Balancing liberty and security

The balance between individual liberties and national security was the subject of much discussion at the first-ever Symposium on Counter-Terrorism and Civil Liberties last week at McGill University’s Faculty of Law. The conference, co-hosted by the Human Rights Working Group, the Arab Law Students Association, the Muslim Law Students Association, the Comparative Constitutional Law Society, and the Centre for Human Rights and Legal Pluralism, brought together prominent policy-makers, practitioners, academics, and members of the public for an engaging series of lectures and panel discussions.

The panels revolved around three central themes: the securitization of immigration policy, the role of civilian oversight of intelligence and security agencies, and Canadian intelligence cooperation with the United States in the war on terror. The challenge from the point of view of the organizers was to avoid creating a “false dichotomy” between security and civil liberties. While panelists approached the issues from a wide range of perspectives, all acknowledged the seriousness of both the threat of terrorism and the erosion of constitutionally-protected freedoms, and proposed various mechanisms for bridging the two. “We have to recognize that it is the responsibility of states to ensure that citizens are able to exercise their rights,” said Paul Kennedy, former chair of the Commission of Public Complaints against the RCMP, “terrorism is a direct attack, a direct threat, on those very rights and freedoms. The challenge for the state…

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Islamic Hardliners Rattle Their Sabres in Aceh, Indonesia and the West Listens Attentively

Recent reports of the legislative passing of hardline Islamic laws in the Aceh province of Indonesia, including the punishment of stoning for adultery, have unnerved Western observers who believe that basic human rights will be ignored under such a system. While the laws are severely flawed, a closer look at Acehnese and Indonesian political and legal structures reveals that such strict punishments under the system are legally impossible to achieve.

Indonesia is a country of over 230 million people, spread out amongst 17,000 islands and islets along an archipelago that stretches for more than 5,000 kilometres. The province of Aceh, lying at the archipelago’s most westward tip, is itself a diverse region, where some fifteen languages are spoken, and where, for the better part of 150 years, conflict and outright war have been the norm.

Islam came to Aceh in the 9th century. It has long been a unifying force throughout the country, but the Acehnese people in particular focus on Islam as a defining characteristic of their identity. As such, the creation of a system of Islamic law (Syariah in Bahasa-Indonesia) was a central factor of the peace plan agreed to by the Acehnese liberation group Gerakan Aceh Merdeka (GAM). However, it must be noted here that GAM was a purely secular movement, and that the achievement of Syariah was just one of many negotiation goals –…

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Afghanistan – Reconciling State and Customary Legal Systems

Nearly 30 years of war and conflict in Afghanistan has left the country’s already weak legal system in total disarray. The question on the minds of many policy-makers, academics and politicians – both local and international – is how to structure a legal system conducive to stability and accountability. Afghanistan has never had a strong legal system. Officially, the country is a civilian jurisdiction, whose civil code is strongly influenced by Islamic law, particularly the Hanafi school of thought. The reality is that the country exhibits a complex relationship between civilian, Islamic, and – most significantly – customary Law (1). Rather than treating customary Law as an impediment to progress, it should be viewed in terms of its potential for creating greater inclusion into the overall legal system, particularly for rural Afghans.

Increasingly, recent scholarship on Afghanistan has suggested that the way forward for the country’s legal system is greater cooperation between state and customary laws (2). This assertion simply reflects the reality that most Afghans, particularly those in rural areas, have far more trust in legal mechanisms at the local level than at the state level. In a 2008 survey done by the Asian Foundation, less than half of respondents trusted state courts, versus customary mechanisms, which have the support of the overwhelming majority of respondents. As of 2007, up to 80% of legal claims…

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