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Doctoral Student Supervision (Jan 2008 - Mar 2019)
In 1948, a mere four years after Raphael Lemkin coined the word “genocide,” the UN General Assembly codified his concept in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Over time, the definition of genocide has become increasingly estranged from the concept originated by Lemkin and adopted by the UN.This dissertation critiques the prevailing materialist interpretation of the Genocide Convention, which originated in a 1996 commentary by the International Law Commission (ILC). As I document, this interpretation has found increasing acceptance among international courts including the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, and the International Court of Justice. According to the ILC, the Genocide Convention is concerned only with the “material” existence of human groups and therefore excludes incidents of “cultural genocide.”The interpretive method that I lay out begins with the rules of interpretation embodied in the Vienna Convention on the Law of Treaties and grounds them in post-phenomenological hermeneutic theory. Surveying the Genocide Convention’s text, its preparatory work or travuax perparatoires, and the historical context of its drafting, I find little support for the “exclusionist” interpretation. Instead, I find that many of its drafters believed the Genocide Convention would protect groups as culturally functioning entities. In fact, as I document, the drafters voted down provisions that would have created an explicitly materialist convention and excluded cultural matters.
This thesis examines and questions the role of international human rights law and international economic law in relation to the increasing encroachment and dispossession of Indigenous lands and territories by multinational corporations (MNCs) in the extractive industry. It also aims to explore the role of a national state’s legal framework and policies not only in validating, authorizing and embedding this process, but also in authorizing a growing and pervasive trend of persecution and criminalization of Indigenous communities who challenge and resist MNCs’ operations. The examination of the relationship between national and international law provides a terrain to grasp how international economic law and international human rights law have become part of evolving regulatory architectures of global governance aiming to validate and embed global capital accumulation.Focusing on Peru, this thesis argues that law, particularly international economic law and the legal framework developed in Peru since the 1990s, has played a prominent role in facilitating and embedding multinational corporate investment in the extractive industry, and in weakening the rights of Indigenous and peasant communities to control their land, water and resources. Peru’s legal framework and policies on extractive industries have not only validated the expansion of MNCs operations and dispossession of Indigenous lands, but have also validated a growing trend of persecution and criminalisation of Indigenous communities. While international economic law constitutes, enables and protects MNCs, international human rights law and corporate social responsibility mechanisms are linked to and help to extend the expansion and deepening of global capital accumulation by means of laws and regulations designed to facilitate and remove barriers to the power and mobility of MNCs.Notwithstanding legal and socio-economic barriers, Indigenous communities have mobilized against and resisted MNCs operations. A comparison of three conflicts involving corporate actors and local communities reveals the existence of intense social mobilization and resistance of Indigenous and peasant communities to defend their land rights, their environment and livelihood, their participation in the decision making process and fair distribution of economic benefits.
In post-colonial Ghana, some rules of customary law have been criticised as being inimical to the rule of law and to socioeconomic development. As such, customary law has been a key focus of legal reform. There has been resistance to law reform efforts, especially from communities in rural areas because the state and customary legal systems have failed to reconcile their perceptions of law and legal responsibilities. Taking these legal conflicts as its starting point, this dissertation explores the mechanisms for effective reforms of customary law in a legally plural Ghana. One key objective is to consider the types of legal reforms that might be agreeable to rural dwellers in ways that ensure compliance with state law. Drawing on legal pluralism as a guiding framework for analyzing the relationship between state and customary legal systems, and focusing on intestate succession as one concrete example, I argue that in order for legal reforms to be embraced, especially by rural dwellers, the state must adopt an inclusive vision of law reform, by modifying the machinery of law reform to meet the particular needs of its people. In the context of intestate succession, I argue that the courts should be given discretion, based on suggested guidelines, to vary the extended family’s portion of intestate property. In addition, I argue that changes to intestate law must also be accompanied by political, economic, educational and even psychological changes to the structures that frame the customary legal system. In sum, legal reform must also mean social, political and economic reform. It must also mean establishing and nurturing meaningful reciprocal relationships among legal systems and empowering people to consider engaging with and accepting opposing views, with a view to managing conflicts.
The struggle for women’s rights has gained momentum in the last three decades with recognition in an assortment of international, regional and national institutions and instruments. The African human rights regime constitutes one such framework for addressing women’s rights. Activating the mechanisms of the regime for the benefit of African women, however, poses an ongoing challenge. Available data indicates African women’s continuing vulnerability to human rights violations, with their already precarious situation exacerbated by factors such as the high prevalence of HIV/AIDS in some parts of Africa. This dissertation assesses the African regional human rights regime in the context of the challenges African women confront in their attempts to access it. It acknowledges that the regional initiatives created to protect rights constitute a potentially valuable framework for addressing violations of women’s rights, highlighting some successes but also exposing the limitations. The dissertation uses the case of the right to health recognised within the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa to study the question of rights at the regional level. It applies a feminist Third World Approaches to International Law (TWAIL) perspective to highlight the inclusions and omissions of this instrument in an attempt to construct a holistic, contextual and interdependent understanding of women’s rights in Africa. This dissertation argues that such a re-reading of rights is imperative in order to accelerate women’s ability to effectively mobilise for their rights using regional human rights mechanisms. It recognises the importance of the activities and influences of diverse actors to the implementation of rights. Building on the progress made by the regime, this dissertation identifies international and particularly regional and local actors, such as the African Union and its institutions, State Parties to the African Union, governmental and non-governmental organisations and entities whose activities, directly or indirectly, have implications for women’s rights. It analyses their actions and influences and offers fresh perspectives to enable these stakeholders to further the transformation of women’s situations using the regional human rights regime.