Derecho Internacional/International Law

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IMG_0649Fuente: ONU 

El Grupo de Trabajo envió a la Asamblea General sus objetivos de desarrollo post 2015

22 de julio, 2014 — El Grupo de Trabajo que ha estado diseñando los objetivos desarrollo sostenible que deberán abordarse después d 2015 ha elevado ya su propuesta a la Asamblea General de la ONU y será evaluada durante la cumbre a celebrar en septiembre de ese año.

La propuesta recoge 17 objetivos con 169 cotas y cubren un amplio espectro de asuntos relacionados con el desarrollo y la mejora de las condiciones de vida de la gente.

En esas metas se incluye acabar con la pobreza y el hambre, mejorar la salud y la educación, hacer ciudades más sostenibles, combatir el cambio climático y proteger los océanos y los bosques, se informó en un comunicado.

También, lograr la igualdad entre los géneros y fortalecer el rol de las mujeres y las niñas, garantizar el acceso universal y el buen uso del agua y de la energía y reducir la inequidad dentro de los países y entre ellos.

Además, se insta a promover un crecimiento económico sostenible e inclusivo y la innovación, así como un empleo productivo y decente para todos, entre otras metas.

Con los Objetivos de Desarrollo Sostenible se pretende dar continuidad a los progresos conseguidos con los Objetivos de Desarrollo del Milenio (ODM), una agenda para la que se estableció el 2015 como plazo de referenca.

Source: IntLawGGRLS

Can better access to citizenship help resolve conflict and refugee crises in Africa’s Great Lakes Region?

The manifold problems of conflict and displacement in Africa’s Great Lakes region[1] seem as complex as they do intractable. After all, with the exception of Tanzania, all the countries in the region have generated refugees and internally displaced people (IDPs) in large numbers over the past decades. But while not wanting to diminish the problems facing the region past and present, scale should not be conflated with either inexplicability or insolvability.
Of course, there is no silver bullet either. But research carried out by the International Refugee Rights Initiative over the past six years in the region, all of which focuses in one way or another on conflict and displacement in a number of different settings, indicates that a framework of citizenship can contribute positively to a better understanding of, and better policy responses to, forced displacement in this troubled region.
Citizenship in this context is understood as access to legal citizenship, but also more broadly as recognition of the right of a person to belong in a community and the power of that acceptance/belonging as a means of accessing other rights. And the research suggests that while there are many causes of political conflict and displacement in the region, unequal or inadequate access to citizenship has been a major contributing cause. At the same time, not only has the failure to ensure inclusive citizenship contributed to displacement, it has also made it harder to resolve: exclusive understandings of national citizenship limit refugees’ access to citizenship in host states and inhibit local integration, and the continued operation of exclusionary policies has made return “home” impossible for many.
As a result, the research underscores the fact that proper realisation of citizenship is one factor that determines whether or not a particular person or group will be forced into displacement; whether they will be able to repatriate; whether they will be accepted by those in their home communities if they do return; how they are perceived in exile both by host communities and those “at home”; whether durable solutions are possible; or whether they will end their lives in exile.
This assertion suggests that there needs to be a paradigm shift in responses to refugees in the region whereby discussions around “durable solutions” to displacement are viewed through a citizenship lens. In the case of repatriation, this means recognition that repatriation can only be a solution when there is a genuine re-assertion of the bond of citizenship between citizen and state, permitting the latter to protect the former and the former to engage in dialogue on the nature of the protection required. Without re-establishing the state/citizen bond and the realisation of their full rights as citizens, refugees will continue to resist return – and others who face similar exclusion will continue to flee.
It also means that repatriation should not be assumed to be the preferred – or, at times, the only – solution. The preconception that the only place refugees can legitimately belong is in their original homes both drives, and is driven by, an emphasis on repatriation that has been promoted by both national governments and the United Nations High Commissioner for Refugees (UNHCR). This attitude has inhibited the possibilities for refugees to forge new forms of belonging, whether through local integration or resettlement to a third country. It also prevents refugees in protracted situations from integrating meaningfully (unless they choose to fall off the official radar and “self-settle”, albeit with a different set of challenges), creating strong feelings of marginalisation and alienation.
Therefore, greater emphasis needs to be placed on local integration as a lasting solution to exile and as a means of re-establishing citizenship rights. Those in exile desire meaningful citizenship, not least in situations where returning “home” is unlikely to be possible for the foreseeable future. In this context, local integration should be promoted as both a temporary and long-term solution to displacement. Integrating refugees into the host community empowers them to act as rational actors capable of addressing their own needs, as opposed to passive recipients of humanitarian aid in camps.
One of the key ways in which local belonging can be supported is through the way in which humanitarian assistance is given to refugees and their hosts. The findings have shown that refugee policy, by isolating refugees in settlements or camps, reinforces separation, undermines local integration and should be avoided wherever possible. The benefits to humanitarian programming in the short-term – as well as the misappropriated policy assumptions that underlie the settlement policy – are small compared to the benefits of supporting and allowing refugees to integrate freely within their country of exile.
Ultimately, therefore, the problem of conflict, displacement, and refugees in the Great Lakes region is intertwined with the crisis of citizenship and the logic of inclusion and exclusion. The way forward, therefore, lies in a process by which refugee policies and practices in the region are re-aligned to become more inclusive, and to have a focus on building the dignity and supporting the resourcefulness of refugees. Refugees need to be viewed as rational actors, who are best placed, either as individuals or as communities, to determine what their interests are and how to protect their rights. This assertion translates into a policy that promotes an organic process of interaction between refugees and host communities that starts at the onset of a refugee influx and allows both to mutually benefit from each other; that identifies potential areas of tension and encourages collaboration between both communities to identify ways of removing the cause of that tension; and that allows local actors to benefit from the economic and business opportunities that result from the presence of the refugees and thereby minimises xenophobia.
[1] The Great Lakes region consists of the territory covering 12 states that are members of the International Conference on the Great Lakes Region (ICGLR): Angola, Burundi, Central African Republic, Republic of Congo, Democratic Republic of Congo, Kenya, Uganda, Rwanda, South Sudan, Sudan, Tanzania, and Zambia.

Source: IntLawGRRLS

Possible U.S. Policy Change on Unaccompanied Minors and the International Legal Obligation of Non-refoulement

The last few weeks have seen numerous reports on the growing number of unaccompanied minors seeking entry to the United States through the Mexican border. The reasons for the uptick in crossings are numerous and complex, and, like the question of whether the children meet the definition of refugees, are not the focus of this post. My question here is a simpler one: whether the adjudication mechanisms under consideration in response to this crisis afford these children a fair hearing focused on a determination of credible fear and other harm which, if identified, would trigger international protection. If the contemplated changes do not comport with a good faith application of the principle of non-refoulement, we run the risk that the U.S. will be in breach of its international obligations.
A “fast-track” process eases the short-term administrative and resource burden at the risk of returning children in need of protection, and would violate the principle of non-refoulement. Non-refoulement, or a prohibition on forcible return, compels States to ensure that no person is forcibly returned to a place where they face persecution, torture or inhuman treatment. In the context of refugee law, States have an obligation of non-refoulement until a negative refugee status determination has been made and States have a good faith obligation to ensure that this takes place. Refoulement can be explicit or it can be constructive, but the UNHCR has stated that it applies at the border, even before an entry is made.
While U.S. law does not explicitly recognize the obligation of non-refoulement, U.S. Immigration Law has a number of built-in protections to prevent the return of individuals to countries where they may face persecution, inhuman treatment or torture, including “withholding from removal” (where removal proceedings are ongoing and there is a high probability that life or freedom would be threatened upon return) and “asylum” for refugees physically present within the US.
There are also multiple mechanisms specific to minors in the immigration system under U.S. law. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), created a two-tiered system that separates arrivals into two groups: citizens of contiguous countries (mainly Mexico) and citizens of non-contiguous countries. Children from non-contiguous countries or children who are found to be vulnerable to trafficking, who express a credible fear, or who are deemed unable to make a determination on voluntary return, are turned over to the Office of Refugee Resettlement for formal deportation proceedings. During this time, they are able to make an asylum claim and seek relief under the withholding provision, in addition to other forms of relief. As immigration courts remain backlogged, the children are placed with families while proceedings are pending. This takes anywhere from a year and half to five years to resolve. Minors arriving from contiguous countries (Mexico or Canada) who are deemed capable of requesting voluntary return and do not fit the risk criteria are processed within 48 hours and returned “home.”
The TVPRA 2008 process was an improvement on previous practice where no such determinations were made for Mexican children. Instead they were subject to “expedited removal” and repatriation, pursuant to which they were removed from U.S. territory after an examination by a CBP Officer and without an appearance in immigration court. As the term suggests, expedited removal is designed as a fast track process, and still applies to adult arrivals. Though individuals are able to make an asylum claim during this process, they are not able to seek relief under the withholding provisions. Based on recent reports, it now appears that some parties in the Administration and Congress are contemplating applying the “contiguous country” standard to all children arriving at the southern border, and quite possibly amending the TVPRA so that only the expedited removal process applies – both to adults and to children.
A number of human rights reports have raised concerns with the existing processes. The Appleseed Foundation has noted that interviews are not being conducted in a “child-centric” environment and without sufficient regard to the arriving childrens’ vulnerability due to trauma or the fact that they may be victims of trafficking. The UNHCR recently conducted interviews with more than 400 children from Central America and found that the majority left their homes to escape situations of violence. The report noted that it was particularly difficult to gather details regarding children from Mexico simply because they were returned to their “homes” so quickly. Similar concerns are reiterated by advocates, including a group of law professors who recently authored a letter to the President.
So what does this mean? Does it even matter if we violate international legal obligation of non-refoulement? The U.S. is a party to the 1967 Additional Protocol and is therefore subject to Article 33 of the Refugee Convention, but the 11th Circuit ruled in 1991 that Article 33 was non-self executing and therefore did not grant enforceable rights. And it has been identified as a rule of Customary International Law by the UNHCR, but the U.S. has contested the position that it is customary law.
I’ll ask one more time – so what does this mean? As a professional who has worked with survivors of trauma, I know from my own experience that traumatized minors often take weeks to re-build the trust necessary to fully tell their story – and those are the minors here in the U.S., with families and geographic familiarity. The move to a fast-track process is therefore worrisome. It is highly unlikely that international litigation would arise from this scenario, but we do have the opportunity to deal with a humanitarian crisis in accordance with international law. Process adjustments might be more difficult in the short-term, but at a basic level, the energy required now to reinforce a solution with an established legal framework represents a worthwhile investment on our part in making a bad problem better instead of worse in the long-term. Or in other words, leading by example.

Source: TheGuardian

Central America’s biggest nickel mine reopens amid violent clashes

Guatemala’s Fenix mine, closed for 30 years, faces disputes over land ownership and lawsuits for gang-rape and murder
The biggest nickel mine in Central America has restarted operations amid violent clashes between indigenous people and security forces, disputes over land ownership, and ongoing lawsuits for gang-rape and murder.
The Fenix mine in Guatemala had been closed for 30 years, and was inaugurated by a recent visit to the site by president Otto Pérez, who called it the biggest investment in the history of the country.
But just one week later a community bordering Fenix known as Lot 8 Chacpayla, who are part of the predominant Maya Q’eqchi’ group in the region, say there were invaded by private security forces working for the firm which runs the mine, Compañía Guatemalteca de Níquel, now a subsidiary of the Cyprus-based Solway Investment Group.
Residents of Lot 8, where large nickel ore deposits are believed to lie, and the neighbouring community, Lot 9 Agua Caliente, told the Guardian that about 10 men turned up unannounced, “armed to the teeth”, intent on preventing a meeting from taking place.
“When we asked why they were there, they said they had been asked to protect the lands of the company,” says Lot 9’s Rodrigo Tot. “They said they wouldn’t leave and assumed a position to shoot. They were out in the corridor, but pointed their weapons at us.”
The community say the private security only pulled out the next day after the intervention of a justice of the peace, the decision by the community to spend the night in the surrounding forest, and the arrival of more private security personnel and then the army and police, which led to a tense standoff.
“Don Rodrigo said ‘kill me’ and started to walk towards them,” said Manuel Xó Cú, from the Defensoria Q’eqchi’. “The others said: ‘If you kill Don Rodrigo, you’ll have to kill us all.’ Neither the army nor police wanted to witness any of this. They left. Then the private security went too.”
Tot told the Guardian that people were particularly concerned that there would be a repeat of events in 2007 when Lot 8 residents were violently evicted by company security, the army and police, and 11 Q’eqchi’ women were allegedly gang-raped.
According to Xó Cú and media reports, Lot 8’s recent invasion was followed two weeks ago by an attempt by police and company security to violently evict another Q’eqchi’ community, Nabalija, in actions that involved burning houses, destroying crops and firing teargas at men, women and children.
These latest events follow years of alleged killings, violence, intimidation, harassment and evictions of Q’eqchi’ residents in the Fenix region – many of whom are attempting to obtain legal title to their land and pose a potential obstacle to mining operations.
Three lawsuits are currently ongoing for the 2007 gang-rapes – allegedly committed by company security, the army and police – and for the 2009 murder of Q’eqchi’ man Adolfo Ich Chaman and shooting of German Chub – allegedly committed by company security – who survived but was left paralysed.
Last year a landmark ruling by an Ontario court stated that the lawsuits can proceed to trial in Canada, given that the rapes were allegedly committed when Fenix was owned by Canadian firm Skye Resources and the murder and shooting after Skye had been acquired by another Canadian firm, Hudbay Minerals.
Hudbay says the allegations are “without merit”, calling the Q’eqchi’ people “illegal occupiers” and saying that the 2007 evictions were “implemented under court orders”, that the rape claims are not credible, and that, “based on internal investigations and eyewitness reports, CGN personnel were not involved with [Ich Chaman’s] death.”
Hudbay sold the Fenix mine to Solway in September 2011 after the lawsuits were filed – a move which MiningWatch Canada’s Jennifer Moore describes as Hudbay “bailing out”.
“The context is a militarised, authoritarian regime that is systematically criminalising mining-affected communities in order to put these projects into force,” Moore says. “There have been continual threats against the Q’eqchi’ people around the mine over the last few months.”
“Impunity and repression are the norm in Guatemala and the global mining industry knows this very well,” says Grahame Russell, from US- and Canada-based NGO Rights Action.
Tot told the Guardian that in 2011 Guatemala’s constitutional court ruled in favour of the Q’eqchi’ legal ownership of Lot 9, but to date it has been ignored. Solway, Guatemala’s ministry of defence and the ministry of the interior did not return requests for comment.

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