Rule of Law

Emerging Voices features contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article is by Ashok Sircar and Tim Hanstad of Landesa, a global development non-profit that works to secure land rights for the world’s poor. Here they discuss how coordinating development projects can help lift families out of poverty. In 2005, our non-profit, Landesa, partnered with the government of West Bengal, a state in eastern India, to develop a micro-plot program. The goal was to provide hundreds of thousands of landless rural families with a plot of land about the size of a tennis court (one-tenth of an acre) – enough space to build a small hut and plant a kitchen garden. Our research and previous experience elsewhere led us to believe that this could help save families from extreme poverty and constant hunger. We expected that after our government partners provided land, these families would soon build their homes, start planting crops, and begin their newly improved lives. Some did. But others did not. After speaking with officials, farmers, beneficiaries, and those who had not yet benefited, we learned that obtaining land was an essential first step, but that some families needed more support in order to move forward. In particular, they needed help building hand pumps to obtain drinking water and toilets. That’s when we started working on what we now call our “convergence model.” National and state government agencies in India spend billions of dollars every year helping the rural poor. In West Bengal, there are organizations that provide land, work, food, housing, drinking water, sanitation, electricity, livestock, farming supplies, and many other goods and services. A poor family may need all or some of these benefits. The challenge we faced in West Bengal was that these benefits often did not come together, in the right order, or at the right time. There was no coordination of projects. After determining that a family needed to own land in order to qualify for most government benefits, we spoke with our government partners about better coordination with the micro-plot program. The program, we thought, could begin a cascade of support and services. In theory, the plan was simple. In reality, it was not; each government support program had its own guidelines, funding mechanisms, bureaucracy, quotas, target populations, and waiting list of candidates. Nevertheless, all of the implementing agencies eventually agreed to collaborate and formulated a new model: a location-based development plan, focused on land. We tested out the new model in Bagda, a small village near the Bangladesh border where officials and local leaders agreed to coordinate aid to seventy-five families who had recently received land. These families previously lived on the margins, squatting on government land for years after losing their homes in a flood in 2000. First, our government partners provided each family with a small plot. Then the Total Sanitation Campaign Fund provided simple sanitation hookups, Rajiv Gandhi Drinking Water Mission provided water, and Rajiv Gandhi Rural Electrification Program provided electricity, the Indian government’s national rural housing program provided small grants to help the families to buy homemaking materials, and the Agriculture-Horticulture Department provided government-subsidized seeds and saplings. The total cost was about $1,000 per family. Over time, families invested $90-$300 of their own money in purchases such as livestock, animal sheds, and saplings. They finally had the security, opportunity, and incentive to climb out of extreme poverty. Spurred by its success, governments in eleven districts across West Bengal began following this model. Today, more than 4,300 formerly landless families have started new and productive lives on their micro-plots. The cost is one that the government was already investing, but in a less coordinated and effective way. We learned that once families have what they cannot provide themselves, they do the rest by the sweat of their brow. They invest in the land, become environmental stewards, provide their children with nutritious food, and pay school fees. More than 450,000 people in eleven Indian states have now received micro-plots. It seems all they needed to climb out of poverty were the right tools at the right time.

Extreme poverty, defined as living on less than $1.25 per day, has declined significantly in recent decades. Thirty years ago, more than half of the world’s population lived in extreme poverty - today, less than a quarter do. Still, that translates into some 1.2 billion people living in extreme poverty, and a disproportionate number of them are female. Overall, seventy percent of the world’s poor and about two-thirds of the world’s hungry and malnourished population are women and girls. This is surprising given the fact that many women are employed: they make up forty percent of the international labor force. In the developing world, there are eight to ten million small and medium-sized women-owned businesses, and millions of other women work in the informal economy. However they earn less than ten percent of the world’s income and own less than one percent of the world’s property. On average, women’s businesses tend to be smaller and less productive than male-owned operations. Boosting the productivity of businesswomen in the bottom billion could reduce poverty, grow economies, and create jobs. But what is the best way to support women-owned enterprises? Do poor women need more capital, more skills training, or both? A Roadmap for Promoting Women’s Economic Empowerment -- a new report from the ExxonMobil Foundation and the UN Foundation --explores these questions and offers some interesting insights. The report is unique in that it takes a comprehensive look at both effective and ineffective strategies aimed at helping women launch, sustain, and grow small businesses. Based on empirical evidence from eighteen commissioned studies across four categories (entrepreneurship, farming, wage employment, and young women’s employment), the Roadmap identifies proven, promising, and high-potential interventions that increase women’s productivity and income in developing economies. The report also lays out a diverse set of “lessons learned” derived from the research – including the finding that giving electricity and mobile phones to the ultra-poor  increases their productivity, and the realization that providing capital or skills training alone is usually not enough to help women grow and sustain their businesses. The Roadmap report pays extra attention to agriculture.  According to the World Bank, agriculture employs sixty-five percent of Africa’s labor force and accounts for thirty-two percent of the continent’s gross domestic product. And sub-Saharan Africa still accounts for more than one-third of the world’s extreme poor. It is also the only region where the number of poor people has increased significantly over the past three decades, rising from 205 million in the 1980s to 414 million as of 2010.  Improving African agricultural productivity is critical for reducing poverty. Numerous studies, including some cited in the Roadmap, show that investing in women-owned smallholder farms not only gives women a source of income, but also alleviates malnutrition and hunger. Women account for forty-three percent of the agricultural workforce, but women-run farms underperform those owned by their male counterparts, most likely because female farmers do not have the same access to resources that male farmers enjoy. The Food and Agriculture Organization (FAO) estimates that giving women equal access to agricultural resources could increase yields by twenty to thirty percent. Eliminating gender inequalities in agriculture could raise total output in developing countries by up to four percent, and reduce the number of hungry people in the world by about fifteen percent. As the authors of the Roadmap report point out, “By expanding and sharing knowledge of what is most effective, funders, implementing organizations and policymakers will be better equipped to achieve greater impact for women, and the benefits for families and communities made possible by women’s economic participation and empowerment.” The Roadmap itself is an excellent contribution to that effort.

In conflict zones, some families view child marriage as a way to preserve their daughter’s honor and protect her from the sexual assault and gender-based violence that commonly occurs in warzones and refugee camps. In reality, however, child marriage only further threatens girls in unstable environments.  In its 2013 report, Untying the Knot: Exploring Early Marriage in Fragile States, the aid organization World Vision found that of the twenty-five nations with the highest rates of child marriage, the majority were countries affected by conflict or natural disasters. The report also cites “poverty, weak legislative frameworks and enforcement, harmful traditional practices, gender discrimination and lack of alternative opportunities for girls (especially education)” as other driving factors of child marriages. Whatever the causes or justifications, once married, these girls are no longer children: they are wives. And they face daunting obstacles in completing their education and finding employment. Child brides are often trapped in a cycle of poverty that leaves them and their future children especially vulnerable in already unstable contexts. The health consequences of sexual activity at a young age can also be catastrophic, both physically and psychologically. According to the International Center for Research on Women (ICRW), pregnancy-related complications remain the leading killer of girls aged fifteen-nineteen years old. Girls under the age of fifteen are five times more likely to die in childbirth than girls over the age of twenty. The most recent example comes from Yemen, where an eight year old girl bled to death from internal injuries sustained during intercourse with her forty-year-old husband. The ICRW report also notes that girls married before the age of eighteen are more likely to experience domestic violence and depression than those who marry later. Some even choose to end their own lives. And the consequences of child marriage go beyond the bride herself. UNICEF’s State of the World’s Children report found that an infant born to a mother under the age of eighteen is sixty percent more likely to die in its first year of life than one born to a mother over the age of nineteen. Despite the grim data, few programs and laws are implemented in conflict zones, such as Syria and Afghanistan, to prevent this dangerous practice. Even when laws protecting the rights of girls and women have been passed, many governing bodies are not held accountable when they fail to uphold them. For example, in 2009, Afghanistan’s President Hamid Karzai signed The Law on the Elimination of Violence against Women, which “imposes criminal penalties for child and forced marriages, domestic violence, and numerous other abuses against women.” Yet according to the recent Afghanistan: Ending Child Marriage and Domestic Violence report from Human Rights Watch (HRW), this law and others intended to prevent violence against women are not being sufficiently enforced. Child marriages are still common in Afghanistan, with an estimated thirty percent of Afghan women married before they reach eighteen years old. Accordingly, maternal mortality and morbidity rates in the country are some of the highest in the world. The HRW report calls on the Afghan government to take urgent measures to prevent child marriage and domestic violence, including passing a law to make the minimum age of marriage eighteen and launching awareness campaigns. Governments around the world should adopt these measures, otherwise women in conflict zones will continue to be threatened by dangers both outside and inside of their homes.  And the world will lose even more young women who might have changed it for the better.

My blog post last week proposing a global "Lawyers Without Borders" organization to represent local communities on international economic law issues generated such an unusual number of emails and comments I think it is worthwhile to highlight a couple responses. Robin Ford wrote: "Thanks for this timely  article. I agree, but would go further.  There are many organizations that provide pro bono assistance... Advocates for International Development, the international wing of the American Bar Association, the Human Rights Institute of the International Bar Association, Human Rights Watch, and more.  I am sure they talk to each[other] from time [to time], but an overall coordinating and strategy-setting body would help them all be more productive.  In addition, I would like to see the creation of a group of superb commercial lawyers willing to work for less to assist lesser developed countr[ies’] governments with matters such as debt financing and public-private initiatives.  Far too often such governments are disadvantaged...when their legal team is not as skilled as the one acting for the other side of a deal." Garth Meintjes, executive director of the International Senior Lawyers Project, wrote: "The solution that you propose already exists, albeit not yet at the scale and scope that you envision.  The International Senior Lawyers Project is a free resource for communities and developing country governments who need high-level legal expertise.  ISLP works internationally on an attorney-client basis to empower those who lack the legal knowledge or representation to manage their resources effectively and to develop their economies.  ISLP’s staff in New York, London, and Paris are working hard to reach more clients and to recruit more volunteers.  Please visit ISLP.org for more information." What did you think about the blog post? We’d love to hear your thoughts. Please post them in the comments below

Private capital flows through foreign direct investment and portfolio investment now exceed $1 trillion annually. This has deep income, wealth distribution, and human rights effects for people around the world—creating opportunity for many, but leaving some behind. International economic rules govern these capital flows by regulating banks and multinational investors, determining property rights, and establishing legal claims and mechanisms for redress. Yet vulnerable communities, such as subsistence landholders, informal workers and entrepreneurs, marginalized religious and ethnic groups, and slum dwellers, have virtually no voice in determining the rules of the global economy and lack effective representation to protect their interests within the developing international legal framework. Accountable governance is critical to protecting human rights, advancing shared opportunity, and promoting inclusive and sustainable development, but is fundamentally lacking at the global level. In the United States, organizations like the Legal Aid Society provide pro-bono services to poor clients faced with day-to-day legal challenges. But no such organization or network exists globally to represent poor communities regarding international matters. Although a number of international advocacy groups currently mobilize public action and pressure policymakers regarding some issues, these organizations are not directly accountable to the constituencies they serve because they do not directly represent vulnerable groups or individuals through client-based relationships. Moreover, all these efforts fall far short of addressing the real needs of affected communities in terms of capacity, reach, and scope. This challenge can be addressed by establishing a global network of legal offices to provide pro-bono client-based representation for vulnerable local communities affected by international economic policy. These advocates for local communities would help level the playing the field, improve social accountability, and ensure that the rules of the global economy work better for everyone. Similar to a standard consulting firm or corporate law firm, this network of pro-bono legal clinics would provide advice, lobbying, and counsel at all stages of the legal and policymaking process: including aiding legislative drafting by congresses and parliaments, rule-making by regulatory bodies like the Securities and Exchange Commission, treaty negotiation and drafting, arbitration within dispute-resolution forums like the International Centre for Settlement of Investment Disputes, policy-setting by international standard organizations like the Financial Stability Board, and litigation through domestic courts. International economic laws are complex and influence the lives of vulnerable groups in several different ways. Expert advocates would represent affected communities on the full range of issues and circumstances in which international laws and norms have significant local effects. This social accountability network should tackle the following challenges: representing communal landholders who are being forcibly displaced by foreign investment “land grabs” and development projects such as hydroelectric dams and oil and mining projects representing local communities whose access to subsistence livelihoods or resources are threatened by global climate change agreements influencing new global banking and finance regulations to protect the interests of small-scale microcredit borrowers and entrepreneurs in the global south protecting local fishing communities whose livelihoods are being eviscerated by the global fishing industry advocating on behalf of communities living near sites of fuel extraction and natural resource exploitation whose livelihoods are threatened by environmental pollution promoting intellectual property rights in trade and investment treaties that advance access to essential medicines and medical technologies A new network of advocates for vulnerable communities would address a critical challenge of global economic governance by advancing social accountability—a loosely based Lawyers Without Borders would ensure the rules of the global economy work for everyone, not just the rich and powerful.

Emerging Voices features contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article is from Ruth Canagarajah, a Fulbright fellow in northern Sri Lanka who is researching the intersection of natural resources, livelihoods, and post-war challenges. Here she analyzes the impact of military land grabs on Sri Lanka’s post-war recovery process. Weak and ineffective property rights pose many problems in post-conflict situations. Secure property rights are needed to revitalize an economy after a volatile period. For many workers, especially farmers and fishermen, their very livelihoods are dependent on secure rights and access to land. In addition, reliable property rights encourage investors to take more financial risks and invest in a post-conflict country. Unfortunately, the impacts of a conflict—including displacement and resettlement of people; secondary occupation of land by state and non-state actors; and loss or invalidation of property and other legal documents, such as death certificates, which affect succession—make land issues difficult to resolve. In the Sri Lankan civil war, which lasted almost twenty-six years and was only recently resolved in 2009, land was a central issue. Over the past three decades, the country, in particular the Northern and Eastern provinces, has been wrecked by man-made and natural disasters, leading to innumerable deaths and displaced people. The Sri Lankan government’s Commission of Inquiry on Lessons Learnt and Reconciliation declared in 2011 that ensuring land rights is a necessary step in the restoration and reconciliation process. However this finding has not been acted on. Although the government claims that managing the resettlement process has been one of their strengths in the post-war period, there are currently more than one thousand court cases filed by landowners who lost their land due to formalized land-grabbing policies. These government practices could result in a renewal of grievances and reemergence of civil unrest if the needs of original landholders are not met soon. Since the civil war, the Sri Lankan military has seized land under the pretenses of security and development. A circular released in January 2013 declares that land lost during conflict will be used for security purposes and vaguely-defined “development activities.” The act claims that the original land claimants are not traceable. Inhabitants of the Valikamam North region of the Jaffna peninsula, a hotbed of conflict during the civil war, have been greatly affected by these policies. The region’s Myliddy harbor, said to be one of the highest yielding and most important fish harbors in the country, is now under military control as part of the ad-hoc High Security Zone (HSZ): a swath of land that takes up fifteen percent of the Jaffna peninsula and was established twenty-four years ago to secure restricted, strategic military bases and industries. Meanwhile, the harbor’s original fishermen have struggled to resettle in areas such as Point Pedro and Valikamam East. Farmers in the Valikamam North province, who once grew cash crops such as red onions, chilies, and tobacco, in addition to bananas and tomatoes, were forced to abandon their fields and cultivable land when the HSZ was established. They once hoped to return after the war, but this seems increasingly unlikely as the military, which has now taken over farming activities within the zone, is legalizing its ownership of the land through section two of the 2013 Land Acquisition Act. Farmers that I spoke with in the small northern town of Tellippalai note that ever since they were forcibly displaced by the military, their lives have been in a constant state of flux: moving around the countryside, interrupting their children’s schooling; cultivating small plots offered by nearby neighbors; and remaining unable to accumulate physical assets due to numerous relocations. Decreases in relief funds over the last three years and inadequate to nonexistent government compensation have made matters worse. The government plans to turn the land it has grabbed into economic zones for the military and navy by constructing coal power stations, factories, and hotels, in addition to using the land for typical agricultural and fishing activities, but conducted by government workers instead of by the region’s original labor force. In areas neighboring the HSZ, government surveyors are assessing where military barracks might be constructed. These “land alienation” policies are meant to boost investment, tourism, and production, but in reality they hinder poverty-reduction measures and post-conflict reconstruction. To be sure, the military may have the resources and technology to make more optimal use of the land, but their actions undermine the post-war demilitarization and recovery process and threaten already unstable livelihoods that depend on restoration of private and public lands. In order for Sri Lanka’s development and peace-building process to succeed, property rights must be protected and local populations should be consulted in order to resolve land disputes and move the country forward.

Emerging Voices features regular contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article is from Dr. Ashok Sircar, India program director at Landesa, a global development nonprofit that works to secure land rights for the world’s poor. Here, he analyzes the obstacles preventing Indian women from exercising their right to inherit land and discusses potential policy solutions. It was like searching for that proverbial needle in a haystack. From September through December 2012, my colleagues and I searched three Indian states looking for 120 women in any district who had inherited farmland from their parents or their husbands in the last eight years. We wanted to interview these women as part of a study to determine how they exercised their rights to inherit land and what challenges they faced. Apparently the challenges were significant. Even though we searched an area with a population that included nearly one million rural women, we couldn’t find 120 such women. We looked in six districts in Andhra Pradesh, Bihar, and Madhya Pradesh. In one district we found five women who had recently inherited their land; in another twenty. But we couldn’t find enough to give us the sample size we needed for our study. As my colleagues and I searched the countryside, we saw no shortage of women laboring in the fields. Indeed, across India women are hunched over the ground planting, weeding, fertilizing, and harvesting in unprecedented numbers. Data across many states makes clear that Indian women do more than half the agricultural labor. And in orchards, cotton, and ground nut cultivation, they do the majority. More than 80 percent of rural women in India work in agriculture. But they don’t own the land they depend on. This is not just a matter of a piece of paper awarding them ownership rights. It is about power, security, equality, and opportunity. Without land titled in their names, women have no proof of residency and can’t access institutional credit, such as bank loans. They also can’t take advantage of agricultural extension programs, such as government offers of subsidized seeds and fertilizers. That women do not inherit land impacts India’s ability to climb out of poverty. First, it is clear that women lack access to the tools (credit) and programs (agricultural extension services) they need to climb out of poverty. Second, as a wealth of research indicates, when women have control over land, they direct more of their income than do men toward their children’s education and nutrition. This means that most rural women across India inherit poverty not property generation after generation. As a result, India is missing an opportunity. My country’s constitution promises women more than this. It says women are equal to men. India prides itself on gender-sensitive legislation. In fact, in an effort to eliminate any remaining doubt about women’s inheritance rights, the central government in 2005 passed an amendment to the Hindu Succession Act of 1956 that spelled out that all Hindu, Sikh, Buddhist, and Jain women (who make up the vast majority of women in India) have the same rights as their brothers to inherit residential property and agricultural land. However, as our research indicates, these progressive laws have not helped ordinary Indian women—those who live in rural areas and depend on the land to survive. Currently, many women tell us they are not aware that they can legally inherit land. A recent study by my organization (Landesa) and UN Women conducted in two states found that only 22 percent of families surveyed knew about the 2005 amendment that gave women equal inheritance rights. And those women who know they have a right to land say that powerful social customs prevent them from asking for their share. Women say that if they assert their right to inherit land, they will cause conflict in their families. Their brothers and extended family will see them as greedy. And should their marriages fail or should they need to rely on their brothers for future help, their pleas for assistance might be dismissed. This fear is so pervasive that our earlier study found that almost half of all women said they didn’t want to inherit land because they feared it would create bad feelings in the family and community—even though it could help them climb out of poverty. Not only is the progressive 2005 amendment not helping women, it appears as though it may actually be hurting them. Since its passage, women are reporting a disturbing trend: families are pressuring their daughters and sisters to circumvent the law by relinquishing their claim to their inheritance in writing in favor of their brothers. So what has always been a social practice—women forfeiting their claim in exchange for family harmony and cordial relations with their parents and brothers--is increasingly being legally legitimized by written declarations. Given these strong social customs that prevent women from getting a share of their parents’ land, robust support systems are needed to help women stand up for their rights and begin to claim the land that is rightfully theirs. The government of India has started this by establishing women’s self-help groups (the Mahila Samakhya Program) in twelve states. These village-level groups support women dealing with a variety of challenges, including alcoholic husbands, domestic violence, unfair labor practices, and disrespected property rights. In Andhra Pradesh, Landesa trained the volunteers who help run these groups to help them better advocate for their members’ land rights. Where microfinance groups are strong, throughout Odisha, Bihar, Andhra Pradesh, Tamil Nadu, and West Bengal, they offer another opportunity to educate and support women on their land rights. And local officials, particularly revenue officials, need to be aware of the challenges women face, and should be trained to support women’s claims to land. Many local revenue officials are not knowledgeable about women’s rights. Landesa has begun such training in Odisha. And in Gujarat, the Women’s Group for Women’s Land Ownership has also been training revenue officials. Lastly, educating both young boys and girls about their equal inheritance right will help ensure that they support their mother’s claim to their family land. Landesa has begun a promising project that has thus far educated 7,000 girls about their land rights. Another 30,000 girls will enroll later this year, with boys also participating. It is in everyone’s interest that women be recognized as the farmers that they are. Their continued lack of assets contributes to not only their individual vulnerability, but also my country’s stubborn poverty.

Last week the UN High-Level Panel on the Post-2015 Development Agenda released its long anticipated report: A New Global Partnership: Eradicate Poverty and Transform Economies Through Sustainable Development. I’ve finally had time to give the long report a good read. It is an aspirational manifesto, reflecting a “new mainstream” in development thinking that departs substantially from the development thinking of the 80s, 90s, or even the 2000s. The High Level Panel (HLP) focuses on some critical issues that have too long been sidelined: governance and rule of law, inequality and social and economic exclusion, and sustainability (especially climate change) to advance shared opportunity within and across generations. The report also recognizes the central role played by global economic rules, rather than aid flows, in creating opportunity or perpetuating poverty and exclusion. This attention to the local impact of global rules is similarly the starting point of my ongoing CFR series on poverty, inequality, and global economic governance. Below I’ve highlighted some key quotes for each the five major themes identified by the HLP. 1. Leave no one behind. “We should ensure that no person – regardless of ethnicity, gender, geography, disability, race or other status – is denied universal human rights and basic economic opportunities. We should design goals that focus on reaching excluded groups, for example by making sure we track progress at all levels of income, and by providing social protection to help people build resilience to life’s uncertainties.” 2. Put sustainable development at the core. “We must act now to halt the alarming pace of climate change and environmental degradation, which pose unprecedented threats to humanity. We must bring about more social inclusion. This is a universal challenge, for every country and every person on earth… Developed countries have a special role to play, fostering new technologies and making the fastest progress in reducing unsustainable consumption.” 3. Transform economies for jobs and inclusive growth. “This is a challenge for every country on earth: to ensure good job possibilities while moving to the sustainable patterns of work and life that will be necessary in a world of limited natural resources. We should ensure that everyone has what they need to grow and prosper, including access to quality education and skills, healthcare, clean water, electricity, telecommunications and transport.” 4. Build peace and effective, open and accountable institutions for all. “Freedom from fear, conflict and violence is the most fundamental human right, and the essential foundation for building peaceful and prosperous societies… We are calling for a fundamental shift--to recognize peace and good governance as core elements of wellbeing, not optional extras. This is a universal agenda, for all countries.” 5. Forge a new global partnership. “Perhaps the most important transformative shift is towards a new spirit of solidarity, cooperation, and mutual accountability that must underpin the post-2015 agenda…It is time for the international community to use new ways of working, to go beyond an aid agenda and put its own house in order: to implement a swift reduction in corruption, illicit financial flows, money-laundering, tax evasion, and hidden ownership of assets. We must fight climate change, champion free and fair trade, technology innovation, transfer and diffusion, and promote financial stability.” Three things are most notable, in my view. First, the recognition that a rising tide does not necessarily raise all boats, so a clear commitment to combating inequality and advancing social and economic inclusion must be at the core of the global development agenda. Second, the realization that current economic growth trajectories in developed countries are wreaking havoc on the environment, undermining the patrimony of future generations, and imposing distributional consequences that disproportionately impact the most vulnerable, so sustainability must be moved to the core of growth and development approaches. And third, a strong embrace of an agenda that puts governance, rule of law, and human rights at the center—both as an ends and as a means. It’s a rich and interesting report, not least for the way it reflects an evolution in global development thinking. These are just the highlights; stay tuned for more detailed analysis in the coming weeks.

Last week a federal judge ruled that mentally disabled immigrants facing deportation have a right to representation in immigration proceedings, and ordered immigration courts in Arizona, California, and Washington to provide legal representation for mentally disabled immigrants if they cannot represent themselves. The facts in Franco-Gonzalez v. Holder are disturbing. One of the plaintiffs had been detained without a hearing for more than five years, and many others for six months or more, because they are too mentally disabled to represent themselves in the court proceedings. Yet the government would not release them because of their suspected illegal status. And, as is too often true for poor defendants, the detainees could not afford to hire a lawyer. So they remained trapped, in indefinite and uncertain detention. Until now, immigrants facing deportation, including, most troublingly, young children on their own and people with mental disabilities, have not had a right to counsel. Instead, they must represent themselves in complex and confusing immigration proceedings. The court ruling makes some incremental but important steps towards a more equitable system, at least for severely mentally disabled immigrants. This topic is a bit far afield from usual Development Channel fare, but the ruling is a big deal, and has important implications for some of the poorest and most vulnerable people in the global economy. Indeed, in our meeting at the Council this week with Nobel laureate Joseph Stiglitz, participants discussed the income and distributional consequences of the fact that capital is increasingly mobile across borders, while laborers (a.k.a. immigrants) are most definitively not. And the international human rights implications of indefinite detention without access to representation or a chance for one’s day in court are quite serious. Article 9 of the International Covenant on Civil and Political Right (ICCR) requires that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” Indefinite detention of mentally disabled immigrants unfit to represent themselves at a hearing suggests to me a clear violation of U.S. international human rights commitments. Plus, my sister, Alexa Lawson-Remer, is counsel on the case, so I was triply compelled to write about it. The court ruling is a victory for human rights here in the United States. According to Alexa (an associate at the law firm of Sullivan & Cromwell, which helped litigate the case pro bono along with the ACLU, Public Counsel, the Northwest Immigrant Rights Project, and Mental Health Advocacy Services), “It is potentially the most significant decision for due process and equality before the law since the Supreme Court’s decision in Gideon v. Wainwright.” In Gideon v. Wainwright the Supreme Court unanimously ruled that everyone accused of a crime is entitled to a lawyer, and that the court must appoint counsel for the indigent. Gideon is widely acknowledged as a watershed legal decision to make real the principle that the law must be impartial and equitable in practice, not merely on paper. Suspected illegal immigrants are not covered by Gideon because they are confronting deportation, not criminal proceedings. In the face of the impending court order in the case, this week the federal government issued a new policy that, in essence, applies the judge’s ruling nationwide—guaranteeing legal representation to mentally disabled immigrants facing deportation proceedings in every state in the union. The new federal policy was a direct response to the likely injunction in the case, sources close to the proceedings say. The court ruling and new federal policy are an important watershed for human rights here at home. Nice work sis.

Last week Lori Wallach, Director of Public Citizen’s Global Trade Watch, joined me at CFR for a rare on the record roundtable meeting. Living up to her reputation for incisive and provocative remarks, Wallach sparked a heated debate about the impacts of investment treaties in the global south. She argued that Bilateral Investment Treaties (BITs), which aim to protect foreign investors from unfair and arbitrary treatment by governments, are themselves arbitrary and unfair. BITs are treaties between governments that guarantee foreign investors a number of rights, including protection against expropriation and limitations on capital controls and performance requirements, and give foreign investors the ability to bring cases against governments in binding international arbitration to enforce these rights. Wallach pointed out that investors have no corresponding obligations, so it can be difficult for governments and citizens to hold them accountable for playing by the rules. She also detailed a number of rulings by arbitral panels (pages ten through twelve of Wallach’s slide deck, PDF) in investor-state disputes that have undermined government efforts to protect the environment and promote human rights. And, according to Wallach, these arbitral panels in any case lack legitimacy as a global governance regime; she reported that “15 arbitrators alone have captured the decision-making in 55 percent of the total investment treaty cases known today” (page nine of slide deck). In short, Wallach argued that BITs as currently designed disadvantage governments and local small business owners, so are “antithetical to equitable and inclusive economic growth.” Citing the academic research, Wallach said that these treaties do not in fact promote foreign direct investment (FDI)--meaning that the “grand bargain,” under which capital-importing countries relinquish domestic policy space in order to increase FDI and therefore growth, is not delivering as promised. If BITs do not actually empirically increase FDI, what do they do, and what are they good for, she asked the audience. Many participants had very different views, arguing that these investment treaties generate important beneficial outcomes for both developing and developed countries by fostering investment and growth. This debate will be examined further in upcoming Development Channel articles and CFR meetings. You can view Lori Wallach’s presentation here.  A recording of the roundtable meeting is available here. More coming soon on poverty, inequality, and global economic governance.

On Tuesday the Supreme Court ruled that victims of torture, arbitrary executions, and other human rights abuses in foreign countries could not seek justice in U.S. courts. The ruling in Kiobel v. Royal Dutch Petroleum halted a widely watched case brought by a group of Nigerians, which alleged that in the 1990s Shell Oil was complicit in the torture and murder of protesters at the company’s operations in the impoverished but oil rich Ogoni region. The Supreme Court held unanimously that the “presumption against extraterritoriality” applies to Alien Tort Statute cases, meaning that foreigners cannot use U.S. courts to seek justice against foreigners for crimes committed on the soil and in the territory of foreign nations. Since the 1980s, when a landmark case opened the door for such claims, the Alien Tort Statute (ATS) has been used by victims of human rights abuses worldwide to seek redress in the United States for egregious human rights violations when justice would not otherwise be available through regular channels in domestic courts. Over the past 20 years, ATS defendants have included companies accused of colluding with authoritarian governments to enslave or murder local citizens. The most notable victory for human rights came in 2005, when Unocal agreed to settle a case brought by Burmese villagers, who claimed that Unocal used forced labor to construct a major gas pipeline (stretching through Myanmar into Thailand), and turned a blind eye as the notorious military junta raped and murdered local people to force them to clear the way for the pipeline. While unsurprising from a legal standpoint, the recent Supreme Court ruling brings into sharp focus one of the most pressing policy challenges of our time: in an increasingly integrated global economy, where transnational investors and companies have profound effects on the lives of people around the world for both good and ill, how can the human rights of marginalized communities be protected from violations by powerful rogue and unaccountable actors? Where domestic courts can be relied upon to fairly enforce the rule of law and protect the rights of all citizens, justice can be sought and served through regular channels within capital-importing countries. But the problem is acute when corrupt or autocratic governments do not protect the rights of their least powerful citizens, deliberately colluding with foreign investors to advance policies that further the interests of elites at enormous human costs. Autocratic oil producing countries like Equatorial Guinea and Sudan are particularly likely to conspire with foreign companies to exploit oil reserves regardless of the human consequences. And although many companies are increasingly making important efforts to safeguard human rights, the rising role of new transnational investors from countries like China who reject such human rights protections is compounding the problem. Unfortunately, given the Supreme Court’s ruling on Tuesday, human rights accountability in the global economy remains elusive.

Counter-intuitively, economic growth (a prerequisite for reducing poverty in the world’s poorest countries) and the well-being of the worst-off and most vulnerable populations are often at odds in the developing world. This tension between poverty, equity, and economic growth is most visibly salient in disputes over land—a key resource for the food security and livelihoods of the poor, but also an essential resource for growth-enhancing investments in energy production and industrial manufacturing. Simmering land disputes that pit growth against equity roil just beneath the surface in many countries; just this past week, these conflicts have boiled over for different reasons across continents, from Kenya to China to Myanmar. In China, villagers in the southern village of Shangpu overturned cars and blockaded roads this past weekend, accusing the local party chief of grabbing communal farmland and leasing it to a local businessman in a sweetheart backroom deal that could spur investment in one of China’s major export producing regions. The villagers, outraged that the land lease would deny them access to the their major source of livelihoods, in exchange for a meager and uncertain compensation, are calling for the party chief’s ouster. In Kenya, land disputes remain a perennial source of ethnic rivalries and violence, despite the week’s largely peaceful election. Kenya’s complex land injustices are legacies of colonialism, further perpetuated by corrupt post-independence governments. The British appropriated the best arable land from native owners and reallocated it to white settlers and colonial regime loyalists. Dispossessions continued post-independence, with the Kenya National Commission on Human Rights describing these land grabs as the “most pervasive corrupt practice” perpetrated by president Daniel arap Moi. Yet Kenya has shown remarkable growth rates over the past two decades, and despite a few stalled years after the 2007 election-related violence, remains one of the economic engines of the continent. And in Myanmar, residents of the Irrawaddy Delta township demonstrated last week against the confiscation of between 500 and 1,000 acres of land by the former military junta for investment purposes, calling for restitution and justice. According to reports, dozens of people were injured and one police officer was killed in the clash. “We have nothing--we are poor and suffering--and want to get back to farming,” said local resident Tin Tin Nwe. The data shows that, historically, property insecurity of non-elites can enhance economic growth, but also encourages conflict—which can, on the other hand, undermine long-run growth and inclusive economic development. Using a new set of indicators that measure the property insecurity of marginalized ethno-cultural minority groups, my research demonstrates that the severity of property insecurity for the worst-off group in a country is strongly associated with the onset of armed conflict, but, putting aside this conflict risk, property insecurity for marginalized minorities actually corresponds with higher growth rates. In short, economic growth can occur when the property rights of elites are secure but marginalized minorities face high a risk of expropriation, as land is reallocated into the hands of investors with access to capital. But the risks of this short-cut to growth are real. The potentially growth-enhancing effect of forced displacement is tenuous, because this property insecurity also increases the likelihood of armed conflict. As the events of recent weeks demonstrate, reconciling the tensions between poverty, equity, and economic growth remains a daunting challenge, made all the more salient when lives are on the line.

As discussed in previous blog posts in this series, good governance and human rights are central aspects of global development. Fundamental to human freedom, these objectives are both an end in themselves and a means to an end, and should be included in the post-2015 global development agenda. In this regard, guaranteeing personal security is a critical development goal. This goal meets the criteria for goal setting—it embodies a consensus normative and ideational objective, is actionable and serves a “booster” function for an important but neglected issue, is universally applicable, and appropriate targets and indicators would strengthen accountability. Once again, measuring performance on this goal is not as impossible as it may appear at first glance. This post discusses indicators for personal security.  My last post tackled the challenge of measuring fulfillment of civil and political rights. "Personal security" is an inherently context-specific issue, so at least some indicators should be designed from the bottom up. A bottom-up approach would ensure that indicators support policy objectives close to the operational level, and ensure that they are actually appropriate and practically relevant. Such “active indicators” should be designed by the domestic operational authorities responsible for the administration of justice (e.g., police, judges) to reflect performance on crime, public safety, police effectiveness, and detention. Measures could include both surveys of end-users and standard socioeconomic demographic data. Does this country-owned, bottom-up approach meet the selection criteria for indicators? There are also some cross-nationally comparable indicators that could be appropriate measures of personal security, to complement the bottom-up indicators.  These include the proportion of population feeling "unsafe," (e.g. walking alone in area after dark or alone at home at night), based on public perception surveys or household surveys; and the number of internally displaced persons (number of individuals who have been forced to leave their homes as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or disasters, and who have not crossed an international border). Both are based on demographic data and expert assessments from the Internal Displacement Monitoring Centre, as used by UNHCR. Do these cross-national measures meet the selection criteria for indicators? Previous posts in the series can be found here, here, here, here, here, here, and here.